Dai (Migration)

[2022] AATA 2982

Dai (Migration) [2022] AATA 2982 (15 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Master Danny Dai

VISA APPLICANT:  Ms Heshun Li

CASE NUMBER:  2205763

HOME AFFAIRS REFERENCE:               BCC2021/1877476

MEMBER:L. Symons

DATE:15 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 15 July 2022 at 2:35pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – lengthy stay in Australia – periods of unlawful residence – financial support during her stay – family support for the review applicant child – review applicant obtained Australian citizenship – temporary carer’s permanent disability – applicants attempts for a permanent migration outcome – plans for the review applicant’s school education in Australia – visa applicant’s temporary exclusion from Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 April 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied to the Department of Immigration (the Department) for the visa on 1 October 2021. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because he was not satisfied that she genuinely intends staying temporarily in Australia for the purpose for which the visa is granted. On 19 April 2022, the review applicant (who is a minor) applied to the Tribunal (through his carer) for a review of this decision.     

5. The review applicant appeared before the Tribunal on 16 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Heshun Li (the visa applicant who is the review applicant’s mother), Mr Cheng Yao Dai (the review applicant’s father), Mr Dickson Mak (the review applicant’s carer and informal guardian) and Ms Sarah Jones (Deputy Principal at Campsie Public School). The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

6. The review applicant was represented in relation to the review by Mr Dickson Mak. Mr Dickson Mak informed the Tribunal that he was attending the hearing in his role as the review applicant’s carer and informal guardian and wished to give evidence for and on his behalf in this capacity.  

7. The review applicant is 12 years old and a minor. As he also attended the hearing and requested to speak to the Tribunal, the Tribunal spoke to him briefly. The Tribunal was not satisfied that he understood what an affirmation was or the issues before the Tribunal. The Tribunal formed the view that he was not able to give evidence that was relevant to the issues before the Tribunal. The Tribunal also formed the view that it was not in his best interests to be present during the hearing when his parents and carer gave evidence. The Tribunal discussed these concerns with his parents and carer and they all agreed that he should not be present when they gave evidence. He was thereafter excused and left the hearing.

8. Following the hearing, the Tribunal wrote to the review applicant, pursuant to s.359A of the Act, and invited him to comment on or respond to information in writing by 1 July 2022. This letter was sent to Mr Dickson Mak, as his representative, by email on 17 June 2022. On 4 July 2022, the Tribunal received an email from Mr Dickson Mak requesting an extension of time of 5 working days to respond to the letter. On 11 July 2022, the Tribunal wrote to him by email and noted that he had already had an extra 5 working days to respond and that would be further extended until 5.00pm on 13 July 2022. He was informed that a decision on the review would be made after that date. The Tribunal received a response on 13 July 2022.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

10. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

11. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent Bridging visa (cl 600.211(a)).

13. The records of the Department indicate that the visa applicant arrived in Australia on 26 June 2008 as the holder of a subclass 456 Business (Short Stay) visa. This visa was valid until 26 September 2008. She did not depart Australia until 7 January 2019. Between 2008 and 2019 she was granted a number of Bridging visas. During that period, she remained in Australia as an unlawful non-citizen on a number of occasions including between 1 October 2009 and 18 April 2011, 3 October 2012 and 29 February 2016 and 1 September 2017 and 19 March 2018.

14. The Tribunal finds that the last substantive visa the visa applicant held was a subclass 456 Business (Short Stay) visa. The Tribunal finds that she did not comply with the conditions of some of the subsequent Bridging visas granted to her. 

15. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.611(3):

    ·8101 – must not work in Australia (mandatory condition)

    ·8201 – must not engage in study or training in Australia for more than 3 months (mandatory condition)

    ·8503 – not entitled to a substantive visa, other than a Protection visa, while remaining in Australia (optional condition)

    ·8531 – must not remain in Australia after end of permitted stay (optional condition)

16. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. Mr Dickson Mak gave evidence that he is prepared to offer the visa applicant accommodation at his home and pay for her living expenses during her stay in Australia. He stated that he is retired. He stated that she and her husband own an apartment in China which is mortgaged and her husband is paying the mortgage. She works in a shoe shop in China. She has no debts. She has a bank account with a balance of 60,000 RMB which is the equivalent of $10,000.00.

17. The visa applicant gave evidence that she is currently working as a shoe salesperson in China. She has $10,000.00 in her bank account to support her stay in Australia. Her husband owns a property and he is paying off the mortgage. Her parents are helping with the review applicant’s costs. She has no debts. She plans to stay with Mr Mak on her arrival in Australia and then stay with the review applicant at a homestay for a few weeks.

18. The Department was provided with a Notarial Certificate with respect to Title Deeds for a property in China in the review applicant’s father’s name. The Department was also provided with a document that appears to be a bank statement but no English translation was provided with this document to indicate the details of the account holder.

19. The Tribunal has not been provided with any documentary evidence in relation to Mr Mak’s income, assets or capacity to financially support the visa applicant during her stay in Australia. The Tribunal has also not been provided with any documentary evidence in relation to the visa applicant’s capacity to support herself in Australia. 

20. In considering whether the visa applicant intends to comply with conditions 8503 and 8558, the Tribunal discussed the purpose of her visit to Australia, the proposed length of the visit and her personal circumstances. In her application for a Visitor visa, the visa applicant applied for a multiple entry visa for up to 3 months from 17 October 2021 to 31 December 2021. She also provided additional entry dates from 20 June 2022 to 31 August 2022 and from 12 December 2022 to 10 February 2023. She stated that the purpose of the visit is to take care of the review applicant and appoint another legal guardian, if any, as his current legal guardian (Mr Dickson Mak) was admitted to hospital after suffering a stroke and his disability is permanent. The review applicant is an Australian citizen.

21. The evidence before the Tribunal is that the review applicant was born in Australia on 17 February 2010. Both his parents are citizens of China. His father departed Australia on 29 January 2013. He was on a Bridging E visa at the time and has not returned to Australia since then. His mother, the visa applicant, departed Australia on 7 January 2019. She was on a Bridging E visa at the time and has not returned to Australia since then. The review applicant did not accompany her when she departed Australia. Prior to her departure from Australia, she placed the review applicant in the care of Mr Dickson Mak.

22. The evidence before the Tribunal is that the visa applicant signed a Statutory Declaration dated 6 January 2019 consenting to Mr Dickson Mak being solely responsible for the review applicant, giving him the power to make decisions for the benefit of the review applicant and to receive communications from Australian government authorities. A copy of this document was provided to the Department. The review applicant acquired Australian citizenship on 17 February 2020 by virtue of the fact that he was born in Australia after 20 August 1986 and lived here for 10 years. On 19 March 2020, he was issued with an Australian Citizenship Certificate and on 9 October 2020 he was issued with an Australian passport.

23. The evidence before the Tribunal is that on 3 September 2021 Mr Dickson Mak was admitted to hospital after suffering a stroke which resulted in him having a permanent disability on his right upper limb and lower limb function. He was accepted by the National Disability Insurance Scheme and placed on a waitlist for priority housing. The hospital was not prepared to discharge him until appropriate priority housing was secured. His discharge date was 18 October 2021. In the interim, the School Principal at Campsie Public School, the school the review applicant attends, made inquiries and organised temporary accommodation for him. Mr Dickson Mak entered into a family agreement to provide temporary care for the review applicant until 23 October 2021. However, due to Mr Mak’s permanent disability, the temporary carer was not able to care for the review applicant after 21 October 2021. 

24. The evidence before the Tribunal is that the Department of Communities and Justice became involved in the matter and were able to find temporary care for the review applicant so that he could continue to attend Campsie Public School. A Temporary Care Arrangement was entered into for a period of 6 months which expired on 20 April 2022. The review applicant was then returned to the care of Mr Dickson Mak under a family arrangement which is not a permanent arrangement.

25. During the hearing, Mr Dickson Mak gave evidence for and on behalf of the review applicant. He stated that the visa applicant left Australia on 7 January 2019, before her visa expired, because she did not want to affect the review applicant. He was studying at the time. She asked him to take care of the review applicant until the end of 2022. There are only a few months left and he will then get his Primary School Certificate. There are many homestays in the community but they are for emergencies only. When he was admitted to hospital, a homestay arrangement was made but they were not prepared to accommodate the review applicant long term if his parents were not able to get visas.

26. The Tribunal asked Mr Dickson Mak why the visa applicant did not take the review applicant with her when she returned to China on 7 January 2019. He responded that he was a student and she “did not want to stop”. He is a citizen of Australia. (He did not become an Australian citizen until 17 February 2020). When asked what the visa applicant proposed would happen after the end of 2022, he responded that she thought she could come to Australia and communicate with the Department. She could take him to Singapore or China to study. Once he completes Primary School, it will be easy to find a school in China. If he goes back to China, he does not have any Chinese. 

27. The Tribunal asked Mr Dickson Mak about his health. He responded that he receives help 3 hours a day. He uses Uber to send the review applicant to school. He hopes the Tribunal would consider giving the visa applicant a visa as that would be the best solution for the review applicant’s future. When asked how much longer he was able to look after the review applicant, he responded until the end of this year. Last year they applied for the visa because it takes a long time to find a homestay parent. The homestay parents are concerned if the review applicant’s parents cannot come to Australia as that places a burden on the homestay family. The review applicant can go to High School. He cannot do anything to find a homestay parent if the review applicant’s parents cannot come to Australia.

28. Mr Dickson Mak gave evidence that when the review applicant applied for Australian citizenship, he gave up his Chinese citizenship. They applied for a visa for him to visit China but the visa was refused. He has an email from the Chinese Embassy. When asked whether it is the plan that the review applicant reapply for Chinese citizenship, he responded no. They would have to “withdraw his Australian citizenship” to do so. When asked whether he had spoken to the visa applicant about the long term plan for the review applicant’s visa, he responded yes. The plan is for her to come here. The review applicant will carry on his studies here in Primary School and High School. If the relationship between China and Australia improves, he can then get a visa to visit his father.

29. The Tribunal sought clarification from Mr Dickson Mak whether the plan was that the review applicant lives in Australia and completes  his Primary School and High School education here. He responded that he would complete his Primary School education first. Maybe the visa applicant wants to take him back to China. The Chinese Embassy will not issue a visa now but may later on. When asked whether the plan is to give up Australian citizenship and reapply for Chinese citizenship if the Chinese Embassy does not grant  a visa, he responded definitely not. Australia has the best education system. His parents will only come for a visit.

30. The Tribunal asked Mr Dickson Mak what would happen to the review applicant if neither of his parents are able to get a visa. He responded that he recommends a homestay family for him and he will be the guarantor. When the Tribunal reminded him of his earlier evidence that a homestay family will not take him if his parents are not able to get visas, he agreed. When asked whether there were any current Court orders in relation to the review applicant, he responded that when the visa applicant gets here, she can apply to be his legal guardian. He was not able to apply for Centrelink benefits for the review applicant because he is not his legal guardian. (He earlier told the Tribunal that he was his legal guardian).

31. The Tribunal asked Mr Dickson Mak whether his son Christopher, who lives in Hong Kong, was able to take the review applicant to China to join his parents. He responded that he cannot do so but his niece, who is in Australia, could take him to China. The visa applicant can come to Australia and apply for a visa for him from here. When asked why she could not employ a migration agent to do so on her behalf, he responded that it is not like that in China and parents have to apply in person. She would need a visa for 3 months to make the arrangements. She just wants to see the review applicant and he can guarantee that she will not overstay.

32. During the hearing, the visa applicant gave evidence that she wants to come to Australia to find a homestay family for the review applicant. She will stay here for a couple of weeks to check it out. When asked how long she wishes the visa to be valid for, she responded that it depends on how long the Department is prepared to give her. She hopes to get 3 months or more. Three months should be enough. The Tribunal noted that in her visa application she stated that she wanted a visa for up to 3 months. She then stated that she wanted to come here from October 2021 to December 2021, then from June 2022 to August 2022 and then from December 2022 to February 2023. The Tribunal noted that that was a lot more than 3 months. She responded that, at the time, she was thinking that those were the review applicant’s school holiday periods.

33. During the hearing , the review applicant’s father, Mr Cheng Yao Dai, gave evidence that he is currently working as a chef in Guangdong Province in China. He came to Australia in 2007 and departed in 2013. He applied for a [permanent] visa whilst in Australia. He lived in Australia as an unlawful non-citizen for 3 years. When invited to give evidence in relation to the application before the Tribunal, he responded that the visa applicant has more or less covered their intentions. She wants to make arrangements so that friends can look after the review applicant.  

34. During the hearing, Ms Sarah Jones, Deputy Principal, Campsie Public School, gave evidence that the review applicant is a student at her school. The school’s discussions with Mr Dickson Mak and the review applicant’s parents indicated that they want to take him back to China. When asked how long ago these discussions were held, she responded that they are ongoing discussions with Mr Dickson Mak. Ms Belinda Cook, the Principal of Campsie Public School, had a conversation with the visa applicant a few weeks ago. It is her understanding that she wants a visa so that she can come to Australia and take the review applicant back to China.

35. Ms Jones gave evidence that she is not sure if the review applicant understands that this is the case. He may believe that the visa applicant would be able to come to Australia and stay with him here. He has had a lot of change including changing schools. His understanding is that if the visa applicant comes here, he will be able to stay with her and go to High School here. When asked where he would have got that idea, she responded that he has not said anyone told him that. Maybe it is hope.

1. Having considered the above evidence, the Tribunal finds the evidence given by Mr Dickson Mak to be unsatisfactory as he was unable to give the Tribunal a consistent and convincing account of what the plan is if the visa applicant is granted the visa. During the hearing, the Tribunal formed the view that the visa applicant was following instructions given to her by Mr Dickson Mak.

2. The evidence before the Tribunal raises a number of issues in relation to how genuine the visa applicant’s expressed intentions are if she comes to Australia. The Tribunal wrote to the review applicant, pursuant to s.359A of the Act, and invited him to comment on or respond to information. This letter was sent to Mr Dickson Mak, as his representative, by email on 17 June 2022. On 13 July 2022, the Tribunal received a written response from Mr Dickson Mak on behalf of the review applicant.

3. The following information was put to the review applicant pursuant to s.359A of the Act:

   During the hearing, Mr Dickson Mak gave evidence that the visa applicant made arrangements with him to provide you with accommodation and take care of you until the end of 2022. He had a stroke in 2021 and, due to his health, is unable to take care of you thereafter. There are several home stay options in Sydney, but they are only available on an emergency basis. Home stay families are not willing to take on the responsibility to accommodate minors whose parents are unable to obtain visas to travel to Australia.

   This information is important because it may lead the Tribunal to the conclusion that the visa applicant’s expressed intentions to visit Australia temporarily are not genuine and that she plans to remain in Australia permanently to take care of you until you complete your Primary School and High School education as Mr Dickson Mak is no longer able to take care of you.

4. In his response to this information on behalf of the review applicant, Mr Dickson Mak stated “LI had provided the attachment of the Working Visa Approval from Singapore Government evidence that she had been recruited from her employer Justmen’s Pte Ltd in Singapore for a permanent job position to work in Singapore and her child will continue his High Studies in 2023”. (sic)

5. The attachment included a letter dated 2 July 2022 from the Ministry of Manpower in Singapore. It indicated that the visa applicant’s application for a Work Permit was approved in principal and it was subject to a number of conditions including that she had to go to Singapore before the approval expired on 30 September 2022, buy a $5,000.00 security bond that is valid for 26 months from a bank or iinsurance company, buy medical insurance (hospital care and day surgery) of at least $15,000.00 coverage per year, attend upon a Singapore registered doctor for a medical examination after she arrives in Singapore as well as various requirements for registration and attendance at a Programme.

6. The letter from the Ministry of Manpower in Singapore states that the letter does not guarantee the visa applicant her stay in Singapore. It also states that she or her employer can terminate her employment at any time with sufficient notice. When this happens, she will not be allowed to stay in Singapore to find another job. The requirement for a security bond that is valid for 26 months, tends to indicate that the Work Permit, if granted, would be valid for 26 months. There is also no guarantee that the visa applicant will be able to satisfy all the requirements to be granted a Work Permit. In view of the above, the Tribunal does not accept that she has been recruited for a permanent job in Singapore. This response does not alleviate the Tribunal’s concerns.     

7. The following information was put to the review applicant pursuant to s.359A of the Act:

   During the hearing, Mr Dickson Mak gave evidence that he had discussions with the visa applicant and the plan is for her to come to Australia, for you to complete your Primary School and High School education in Australia and when the relationship between the Chinese government and the Australian government improves you can obtain a visa to visit your father in China. She has no intention of applying to have your Chinese citizenship reinstated.

   This information is important because it may lead the Tribunal to the conclusion that the visa applicant’s expressed intentions to visit Australia temporarily are not genuine and that she plans to remain in Australia permanently to take care of you until you complete your High School education as Mr Dickson Mak is no longer able to take care of you.

8. In his response to this information on behalf of the review applicant, Mr Dickson Mak stated:     

   The final solution and plan is LI will visit Sydney to discuss the temporary homestay arrangement and custody till December 12, 2022 and let her child can complete the Certificate of Graduation Year 6 of Primary School because it is a important education record to find the High School enrollment High School Studies in Singapore. LI choose to work in Singapore is to allow his child to have Chinese & English Studies. (sic)

   LI humbly requests the Member to grant a favorable decision to allow LI to visit Sydney to finalize all matters on the interests of Danny DAI. (sic)

9. The Tribunal is not persuaded by this response for a number of reasons. Firstly, Mr Dickson Mak gave evidence to the Tribunal that he is able to look after the review applicant until the end of 2022 but hopes he can find a homestay. Therefore, there is no need for the visa applicant to organise a homestay for him between now and 12 December 2022. Secondly, the visa applicant’s application for a Work Permit was approved in principal and it was subject to a number of conditions. There is no guarantee that she will be able to meet those conditions and be granted a Work Permit. Thirdly, the review applicant will require a visa to be able to live and study in Singapore and there is no guarantee that he will be granted the visa.

10. Fourthly, Mr Dickson Mak’s evidence that it is definitely not the plan for the review applicant to give up his Australian citizenship and apply to have his Chinese citizenship reinstated if the Chinese Embassy does not grant him a visa to visit his father in China because Australia has the best education system is not consistent with his response that the plan is for the review applicant to study in Singapore. Fifthly, there is no evidence that the visa applicant has the financial capacity to pay for the review applicant’s High School education, as an international student, and his living expenses in Singapore.

11. Further, the Tribunal notes Mr Dickson Mak’s evidence that he has an email from the Chinese Embassy refusing to grant the review applicant a visa to visit China. Despite having plenty of time and opportunity to do so, he has not provided the Tribunal with a copy of this document. This evidence is also not consistent with his subsequent evidence that things are different in China and the review applicant’s parents will need to attend the Chinese Embassy in person to obtain a Chinese visa for the review applicant.

12. The Tribunal has also considered other relevant matters such as the visa applicant’s immigration history in Australia and her conduct (cl 600.211(c)). The evidence before the Tribunal is that the visa applicant resided in Australia between 26 June 2008 and 7 January 2019. During that period, she resided in Australia as an unlawful non-citizen on several occasions. She also applied for a number of permanent visas in Australia. This included Partner visas with Mr Dickson Mak as her partner and sponsor.

13. During the hearing, the Tribunal asked Mr Dickson Mak whether he understood the reasons why the Department refused to grant the visa applicant a Visitor visa. He responded that he did. She was barred from coming to Australia for 2 years. That was her punishment. The review applicant’s father did not apply for a visa as he believed the Department might think that if they both came, they will overstay. He has not seen the review applicant for 9 years. When asked if he was aware of the visa applicant’s immigration history, he responded yes. He read the Department’s decision. The review applicant’s parents “did wrong things and overstayed”. They were young and wanted to earn some money to buy a house. The Australian government has barred the visa applicant for 2 years and she has already been punished.  

14. The Tribunal asked Mr Dickson Mak what his relationship was with the visa applicant. He responded that they are friends. He is a community leader and is concerned about the review applicant and his education. He believes he can help him. If he had not had a stroke in 2021, he would have continued to take care of him. When asked whether he had ever sponsored the visa applicant for a visa, he responded no.

15. The following information was put to the review applicant pursuant to s.359A of the Act:

    The visa applicant, Heshun Li, first arrived in Australia on 26 June 2008 as the holder of a subclass 456 Business (Short Stay) visa that was valid for 3 months. She did not depart Australia until 7 January 2019. Between 2008 and 2019 she remained in Australia as an unlawful non-citizen on a number of occasions including between 1 October 2009 and 18 April 2011, 3 October 2012 and 29 February 2016 and 1 September 2017 and 19 March 2018.

    This information is important because it could lead the Tribunal to the conclusion that she is not a person who respects Australia’s immigration laws, will not comply with the conditions of a Visitor visa and will overstay her visa as she did previously.

    During her stay in Australia, the visa applicant unsuccessfully applied for [permanent] visas on three occasions. In 2008, she was the primary applicant and in 2011 and 2013 she was a secondary applicant. On 7 January 2019, she departed Australia voluntarily and returned to China.

    This information is important because it may lead the Tribunal to the conclusion that she has a strong desire to live in Australia permanently and, if she is granted a Visitor visa, she will not comply with the conditions of a Visitor visa and will overstay her visa as she did previously.

    During her stay in Australia, the visa applicant unsuccessfully applied for a Combined Partner (UK 820/BS 801) visa in August 2018, a Combined Partner (UK 820/BS 801) visa in September 2018 and a Residence (Child) (BT 802) visa in December 2018. Mr Dickson Mak sponsored her in relation to the two Combined Partner (UK 820/BS 801) visas. During the hearing, Mr Dickson Mak denied that he had ever sponsored the visa applicant for a visa.

    This information is important because it could lead the Tribunal to the conclusion that she has a strong desire to live in Australia permanently, will not comply with the conditions of a Visitor visa and will overstay her visa as she did previously. It may also lead the Tribunal to the conclusion that her former or current relationship with Mr Dickson Mak may provide her with a further incentive to remain in Australia beyond the time permitted. It may also lead the Tribunal to the conclusion that Mr Dickson Mak is not a credible witness.

16. In his response to this information on behalf of the review applicant, Mr Dickson Mak stated:    

    LI agrees to the previous visa history and LI had admitted the penalty for the Bar for 3 years not to apply any substantial visa to enter Australia and she did not see her child face to face during the period. Her painful in not seeing her biological child is a heavy lesson in her life and she will not make this happen again. Dickson MAK denied the question from the Member in ever sponsored LI’s Subclass 820 in the hearing because his understanding was the application did not grant any Acknowledgement of Application nor debit any Visa Application Fees from his bank debit card. Dickson apologize to Member to the answers due to his lack of knowledge immigration application procedures. (sic)

17. The Tribunal does not accept Mr Dickson Mak’s explanation for why he told the Tribunal that he had never sponsored the visa applicant for a visa. He would have had to sign forms as a sponsor in relation to each of the visa applications where he sponsored the visa applicant for Partner visas. He is a permanent resident of Australia and, according to him, a community leader. The Tribunal does not accept that he is as ignorant of visa applications and immigration procedures as he claims.

18. Having considered all the evidence, the Tribunal is not satisfied that the visa applicant will comply with condition 8101 (no work) if granted a Visitor visa. Her evidence is that she has $10,000.00 in savings and can support herself during her stay in Australia. The Tribunal has not been provided with any documentary evidence to support this claim. The bank statement provided to the Department was not accompanied by an English translation and the Tribunal therefore has no independent evidence that the bank account was in the visa applicant’s name.

19. Mr Dickson Mak gave evidence that he will provide the visa applicant with accommodation and pay for her living expenses during her stay in Australia. He is retired. He has not provided the Tribunal with any documentary evidence to indicate that he has the financial capacity to pay for her living expenses during her stay in Australia.

20. On the evidence before it, the Tribunal is not satisfied that the visa applicant has the financial capacity to support herself during her stay in Australia without working here in breach of condition 8101 of her Visitor visa. The Tribunal is also not satisfied that Mr Dickson Mak has the financial capacity to pay for her expenses during her stay in Australia. 

21. The Tribunal is also not satisfied that the visa applicant will comply with condition 8531 (must not remain in Australia after the end of permitted stay) if granted a Visitor visa. Her immigration history indicates a strong desire to live in Australia permanently with the review applicant even to the extent that she was prepared to live here as an unlawful non-citizen. She made repeated and unsuccessful visa applications for permanent visas. After being an applicant in three separate applications for [permanent] visas, she then twice applied for Partner visas. When unsuccessful in relation to those visa applications, she applied for a Residence (Child) (BT 802) visa.

22. The visa applicant’s conduct in leaving the review applicant, who was then aged 8 years, in Australia when she voluntarily returned to China on 7 January 2019 tends to indicate that she was prepared to leave him in the care of a third party in Australia rather than being cared for by one or both of his parents in China so that he could continue to live in Australia and acquire Australian citizenship once he turned 10 years of age. Her determination not to give up the review applicant’s Australian citizenship to reinstate his Chinese citizenship so that he can live in China with his parents also indicates her desire that he live in Australia permanently.

23. Mr Dickson Mak’s evidence during the hearing that the plan is for the visa applicant to come to Australia, apply to be appointed as the review applicant’s legal guardian, the review applicant continue his Primary School and High School education and, if the relationship between China and Australia improves, he can then get a visa to visit his father in China tends to indicate that the visa applicant has no intention of returning to China at the end of her permitted stay and plans to live in Australia and care for the review applicant until he completes his High School education. For the reasons given above, the Tribunal is not satisfied that her subsequent application for a Work Permit for Singapore and the in principle approval of that application changes her original plan. The Tribunal finds that Mr Dickson Mak is not a credible or reliable witness and places no weight on his assurance that he will guarantee that she does not overstay her Visitor visa.

24. For the above reasons, the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl 600.211 are not met.

    DECISION

25. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    L. Symons
    Member