Fang (Migration)

[2017] AATA 2869

Fang (Migration) [2017] AATA 2869 (18 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jing Fang

VISA APPLICANT:  Mrs Ai Yu He

CASE NUMBER:  1716558

DIBP REFERENCE(S):  BCC2017/2223905

MEMBER:Margie Bourke

DATE:18 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 18 December 2017 at 12:21pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Importance of family connections – Remained unlawfully for nine years

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 22 July 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 20 June 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 the visa applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 14 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Fuqing and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of attending her granddaughter’s wedding.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. 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)).

10. Based on the visa applicant’s application form, the information in the Department’s decision record dated 22 July 2017 (a copy of which was provided to the Tribunal by the review applicant) and the oral evidence given at the hearing by the review applicant and the visa applicant, I am satisfied that the visa applicant last held a visitor visa in 2000, and did not comply substantially with the conditions of this visa.  I am satisfied that the visa applicant ‘overstayed’ the period of the visa by nine years, and remained unlawfully in Australia until 2010.

11. 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.

12. I have considered that the granddaughter whose wedding the visa applicant wished to attend, is now married as the wedding occurred in October 2017. I am satisfied that the review applicant’s younger sister, another granddaughter, is getting married in March 2018, and the visa applicant wishes to attend this wedding in Australia.

13. I am satisfied that the visa applicant came to Australia in the year 2000 as the holder of a visitor’s visa, to assist her daughter and her husband, and to care for their three daughters, the eldest of whom is the review applicant.  I accept the youngest granddaughter was a baby during the time of the visa applicant’s visa.  The youngest granddaughter became very attached to her grandmother.  I accept the visa applicant’s husband died in 1999.  I accept the visa applicant’s daughter and her husband were both working, and in the circumstances of the youngest child’s attachment to her grandmother, at the request of her daughter and her husband, the visa applicant decided to stay to assist her daughter and the family.  I am satisfied the visa applicant chose to remain in Australia without a visa for nine years.

14. I am satisfied the visa applicant currently lives in the Fujian province with her son and his family.  I am satisfied the visa applicant has two married daughters and a married son and their grandchildren who reside in China.  I am satisfied that the visa applicant has siblings who live in the Fujian province. I am satisfied the visa applicant has family support in China, and family who care for her and want her to live with them in China.   

15. I am satisfied the visa applicant is 75 years of age, and does not intend to work, study or train in Australia.

16. I have also considered all other relevant matters (cl.600.211(c)).  I accept the importance of family connections to the review applicant.  I accept it is important to the review applicant for her grandmother to attend her sister’s wedding.  

17. I have carefully balanced all the evidence before me.  However, I give serious weight to the fact the visa applicant previously remained in Australia and did not comply with the terms of her visa, and remained unlawfully in Australia for a significant period of time.  The visa applicant previously remained unlawfully in Australia at the request of family members for nine years, and I cannot be satisfied that she genuinely intends to remain temporarily in Australia for the purpose for which the visa is granted.  

18. 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

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

    Margie Bourke
    Member