Deng (Migration)

[2018] AATA 3121

Deng (Migration) [2018] AATA 3121 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Guiying Deng

VISA APPLICANT:  Mr Rongcheng Deng

CASE NUMBER:  1723409

DIBP REFERENCE(S):  BCC2017/2598790

MEMBER:Linda Holub

DATE:5 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 5 July 2018 at 11:00am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Whether the applicant genuinely intends to stay in Australia temporarily – Limited history of compliance with visa conditions – Financial ability to cover the visa applicant’s expenses – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 28 August 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 July 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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 the delegate was not satisfied with that the applicant generally intends to visit Australia temporarily.  

5. The review applicant appeared before the Tribunal on 27 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s husband.  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 her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

BACKGROUND

1. The review applicant was born in n Guangdong Province, China in 1959 and first came to Australia in 1992 joining her husband.  They run a small market garden on the outskirts of Sydney.  They have three adult children

2. The visa applicant is the review applicant’s brother.  He was born in Guangdong Province, China in July 1964.  He has two children and two grandchildren and runs a small construction company.

CONSIDERATION OF CLAIMS AND EVIDENCE

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 applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the 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 visiting his sister and her family.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).  In writing the applicant has declared that he has not previously travelled out of China.  The review applicant stated that the visa applicant has been to Hong Kong.

13) At hearing the Tribunal ascertained that the review applicant’s younger brother has previously travelled to Australia but she did not recall when he was here.  The Tribunal subsequently confirmed that her brother was granted a Sponsored Family Visitor visa (UL-679) and that he arrived in Australia in June 2006 and departed the day his visa was due to expire.

14) 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.600.612):

·8101 – must not work in Australia

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

·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

·8531 – must not remain in Australia after end of permitted stay.

15) At hearing the applicant provided copies of two Title Certificates.  After some discussion, the Tribunal established that they relate to properties owned by the applicant and her husband.  One is an investment property in Liverpool and the other is a small market garden farm at Kemps Creek where the review applicant and her husband live.

16) At hearing the review applicant stated that she occasionally works on the farm and her husband also does some work but is essentially retired now.  Most of the work is undertaken by her husband’s cousins who also live on the property.  After much discussion with both the review applicant and her husband the Tribunal was able to ascertain that there are two dwellings on the property.  The review applicant and her husband live in one and the husband’s cousins live in the other.  

17) The submission provided from the review applicant’s accountant states she and her husband draw a weekly wage of $800/week from the proceeds of the farm.  The review applicant’s husband stated that they also receive income from their rental property of $480 and their children support them if necessary.

18) A copy of the review applicant’s 2016 Notice of Assessment by the Australian Taxation Office showing that the review applicant had a taxable income of $23,261. A copy of the review applicant’s statement from her term deposit shows a balance of approximately $61,000 as at 1 July 2017 and $64,000 in March 2018.

19) The review and visa applicant provided consistent evidence regarding the visa applicant’s work situation.  He works in construction and contracts for work employing a small number of people.  Written evidence was provided in respect of his income over a two year period.  The Tribunal asked why the information regarding his income was provided by the Villagers’ Committee.  The review applicant’s husband explained that because it is just a small enterprise that only operates locally and that in the village there are no other options for some official authority to verify the claims regarding the visa applicant’s business.

20) In his application, the visa applicant wrote that he can fund his visit to Australia and that he has enough money to support himself during his visit.  It also states that the review applicant and her husband will provide financial support and accommodation for him.  In a Statutory Declaration provided to the Department the review applicant stated that she will be responsible for all her brother’s his expenses during his stay in Australia.  When asked to clarify who is covering the cost of the visit, reference was made to the cultural practice for the hosts to offer to pay and for the guest to do likewise.

21) The review and applicant provided consistent evidence about the plans for the visa applicant’s visit.  Essentially, the intention is to visit the review applicant and her family and some limited sightseeing.

22) There is no nothing in the evidence before the Tribunal that the review applicant would work, study or train in Australia. 

23) Condition 8503 refers to entitlement and does not require compliance.

24) The Tribunal asked the review applicant about the incentives which exist for the visa applicant to return to China after his visit.  She referred to the construction business he operates and his two grandchildren.  Following the hearing the Tribunal received a copy of their birth certificates.  Their ages accord with the visa applicant’s oral evidence. The visa applicant talked about his connection with his grandchildren and the satisfaction he obtains by spending time with them.  The review applicant also talked about the importance of the visa applicant’s family and the situation in China being much improved.

25) The review and visa applicants both indicated that the visa applicant has no political or security concerns in the village and there have been no issues in regard to his religion or ethnicity.  The visa applicant commented that the village is safe and well governed.

26) With regard to condition 8531, the Tribunal put weight on the fact that although limited, the family’s migration history is positive. 

. FINDINGS

27) The Tribunal recognises that the review applicant has a modest income.  However, the Tribunal accepts that between the visa and review applicant they will be able to cover the costs of a short and contained visit.  The Tribunal has taken into account the positive migration history of the family, limited as it is.  The Tribunal is satisfied that the visa applicant will comply with the conditions of his visa. 

28) The Tribunal has also considered all other relevant matters (cl.600.211(c)).

29) For the above reasons the Tribunal is 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 met.

DECISION

30) The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Linda Holub
Member