EKPAR (Migration)
[2017] AATA 1645
•31 August 2017
EKPAR (Migration) [2017] AATA 1645 (31 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Aker Anwar EKPAR
VISA APPLICANT: Ms Mayila ZHAYIER
CASE NUMBER: 1701964
DIBP REFERENCE(S): BCC2016/4253835
MEMBER:Melissa McAdam
DATE:31 August 2017
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 31 August 2017 at 2:26pm
CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Genuine temporary stay – Caring responsibilities in China – No English language skills – Strong social networks
LEGISLATION
Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2, cl 600.211, cl 600.212, cl 600.231
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 January 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 13 December 2016. 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.
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.
The visa applicant provided the following information in her visa application:
a.She is a 54 year old woman from Xinsheng Hang, Tianshan District, Urumqi, in Xinjiang Uygar Autonomous Region in China.
b.She is divorced. Her adult son lives with her in China. She has an adult daughter, two brothers and one sister, who also live in Tianshan district. She has another sister who lives in Shuimogou district of Urumqi.
c.She has a married son with a wife and two children who all live in Glebe, Australia, and who are Australian citizens.
d.She wants to visit Australia between May and July 2017 to see her son and his family and to have a look at Australia.
e.She visited Dubai last year.
f.She is retired and receives a pension in China. She has savings of 200,000 RMB ($AU40,000). She is financially comfortable in China. She will stay at her son’s place when she visits Australia.
g.She submitted a copy of the following documents:
i.Her Chinese passport showing entry to the UAE in February 2016.
ii.Her Chinese Retirement Certificate.
iii.Her Chinese Household register booklet.
iv.Her Chinese Birth Certificate.
v.A Bank Deposit Certificate showing an amount of 200,000 RMB in the visa applicant’s name.
vi.Certification that she purchased a house in August 2013 with part payment by the Chinese state.
vii.Her Chinese Retirement Pension Disbursement Form.
viii.Certification that she has daytime care of her grandson because his father works.
ix.The review applicant’s Australia Citizenship certificate.
x.The review applicant’s Australian passport.
xi.The review applicant’s change of name certificate.
xii.Certification that the visa applicant is the mother of the review applicant.
xiii.Offer of employment as an Associate Lecturer, to the review applicant’s wife from the University of Sydney.
xiv.Postgraduate Scholarship award to the review applicant’s wife by the University of Sydney
The review applicant provided the following information in the visa application:
a.The review applicant is the visa applicant’s son.
b.He became an Australian citizen in June 2015.
c.He is a student in the Doctor of Medicine course at the University of Sydney.
d.He has had employment as an interpreter for the past three years.
e.His mother has never been involved in any form of anti-government or political activities in China. She is very content with her work and life there.
f.She previously worked as a government public servant for many years. She receives a monthly pension of around RMB4900 which is considered high for the region and she has a comfortable life.
g.She was granted a Chinese passport easily.
h.Although there are incidents of unrest and violence in the Uighur region the majority of Uighurs live peacefully and cooperatively with the government.
i.The Chinese economy has grown fast and the standard of living has risen especially in the big cities such as Urumqi. His mother is one of the many Uighurs who is content with their lives and the government.
j.His mother can only stay in Australia for a maximum of two months because she has care responsibilities for her son and grandson in China. She is the primary carer for her daughter’s son, Mueralimu. Her daughter is also pregnant with her second child so his mother will have to return to support her with the birth.
k.His mother does not speak any English. As an elderly woman his mother will struggle with the different language and culture in Australia. Most older Uighur visitors depart Australia before the expiry of their visas as they do not like living in such a different country. His mother will not be able to have a normal life in Australia and will have a lot of difficulties here. She would become dependent upon him and isolated in Australia. She will be bored in Australia after a short time and want to return to China within a month or two.
l.His mother has a lot of family and friends and a lot of happiness and activity in China. She and her relatives gather together once a week.
m.She would like to visit Australia every other year and will fully comply with all her visa conditions.
n.His mother recently purchased an apartment from the government organisation she worked for. She paid a portion of the price and the rest was paid by the organisation in recognition of her years of service. She is excited about moving into her new apartment.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because a family member came to Australia on a temporary basis and lodged an application for a change to permanent status and because Uighurs are a known persecuted minority group in China.
The review applicant appeared before the Tribunal on 31 August 2017 to give evidence and present arguments. The following is a summary of the information he provided:
a.His Mother went to Dubai last year with her friends for a holiday. She has not travelled to any other country.
b.His mother has not had any problems with the Chinese authorities. If she did have any problems she would not have been able to get a Chinese passport so easily.
c.His mother would become bored if she stayed more than a month or so in Australia. The review applicant and his wife are socially isolated because of their work, study and family responsibilities. There is a Uygur community in Sydney but they are not involved with it because they have so little time. If his mother visits Australia she will be at home most of the time by herself as she will have difficulties going out alone.
d.The review applicant’s sister in China has recently had another child so his mother is busy helping her. If she visits Australia she will need to get back to China to continue to help his sister care for her children.
e.His mother also looks after his brother who lives with her and is quite immature.
f.If his mother can visit Australia the review applicant will show her sites such as the Blue Mountains and the Central Coast. But he and his wife will not have time to look after her for more than a short stay.
g.His mother wants the review applicant and his family to visit her in China next year but they will be unable to because he will be graduating and starting work then.
h.The review applicant and his family visited his mother in Urumqi last year. They did not have any problems while they were there.
i.The review applicant’s children have stable child care arrangements so they do not need his mother here to help care for them.
j.His mother is in good health apart from a little hypertension. She can get medical treatment and care in China if she needs it. She has health insurance there.
k.His mother would not be able to get citizenship in Australia because she will not be able to pass the English language tests. She would become depressed and her mental and physical health will suffer if she has to stay in Australia for long. She knows Urumqi and is very happy there. She does not want to live in Australia as it would be like a prison for her.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting her son and his family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.
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)). The visa applicant has not previously held a visa for or in Australia so this consideration is not relevant to her circumstances.
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.
The Tribunal accepts the evidence that the visa applicant has her own funds and that she will live with her son, the review applicant, who will provide for all her expenses while she is in Australia. The Tribunal is satisfied that the visa applicant will not need to or want to work while she is in Australia. On the evidence before it the Tribunal is satisfied the visa applicant does not intend to work in Australia.
There is no evidence or indication that the visa applicant wishes or intends to study or train in Australia. The Tribunal is satisfied that the visa applicant has no intention to study or train while she is in Australia.
The Tribunal has also considered all other relevant matters (cl.600.211(c)).
The evidence before the Tribunal indicates the visa applicant has strong family, community, property and lifestyle ties in China, developed over the many years of her life there.
The Tribunal accepts the visa applicant has childcare responsibilities for the two children of her daughter in China.
The Tribunal accepts that the visa applicant is a past employee of the Chinese government and that she receives substantial benefit, including subsidised accommodation and a comfortable pension, from the state. On the evidence before it the Tribunal is satisfied she has no problems with the authorities in her country which would motivate her to not return there. The Tribunal also notes the evidence that the visa applicant has no serious health problems and does not require care or assistance herself. The Tribunal considers these factors go to a lack of extrinsic reason for the visa applicant to want to remain in Australia past the expiry of a visitor visa.
The Tribunal accepts the evidence of the review applicant that his mother would want to return to her comfortable, familiar and fulfilled life in China and have little wish to stay in a country, which is unknown and will be difficult to navigate, in which she cannot speak the language, and where she will be isolated from friends, community and extended family.
The Tribunal accepts that the circumstances leading to the review applicant’s residence in Australia differ from that of the visa applicant.
While the presence of the review applicant, his wife and two children may present a reason for the visa applicant to stay longer in Australia the Tribunal considers that the presence of many more family, relatives and friends in China, together with the incentive of her responsibilities and preferred lifestyle in China, outweigh this concern.
The Tribunal accepts that the proposed duration of stay is a reasonable one.
In sum the evidence before the Tribunal does not indicate that the visa applicant wants to visit Australia for any purpose other than a genuine temporary stay to see her son and his family here.
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
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.
Melissa McAdam
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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