Fong (Migration)

[2023] AATA 3273

Fong (Migration) [2023] AATA 3273 (29 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ching Fong

VISA APPLICANT:  Ms Bin Fang

REPRESENTATIVE:  Mr Michael Ting

CASE NUMBER:  2216439

HOME AFFAIRS REFERENCE(S):          BCC2022/3516091

MEMBER:Melissa McAdam

DATE:29 September 2023

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 29 September 2023 at 2:27pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – employment, economic and family commitments in China – home and business ownership – previous compliant visits – adult children still studying – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 Home Affairs on 15 September 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 for the visa on 30 August 2022.  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.

   Visa application

4. The following is a summary of the information provided by the visa applicant in her visa application:

   a.She is a citizen of China.

   b.She wishes to visit her sister (the review applicant) in Australia from 15 October 2022 to 1 November 2022. Her sister (the review applicant) is a permanent resident in Australia

   c.She is divorced.

   d.She has previously travelled to Australia.

   e.Her mother, two adult children and one teenage child reside in China and will not accompany her to Australia.

   f.She will self-fund her travel to Australia using her savings.

5. With her application the visa applicant included the following document copies:

   -Her recent bank accounts’ statements.

   -Her Chinese Household Registration booklet with English translation

   -Her Chinese National ID Card.

   -Her retirement pension booklet, with English translation.

   -Title Deeds to property she owns in China, with English translations.

   -Her current Chinese passport.

   -Her expired Chinese passport showing visa stamps to Australia, Korea, Japan and Czechoslovakia (Schengen visa).

   -The review applicant’s bank accounts’ statements.

   -The review applicant’s current and expired Australian passports.

   -A council rates notice for the review applicant’s property in Wentworth Falls.

   -The review applicant’s NSW Driver’s Licence.

   -A letter from the review applicant expressing her wish for the visa applicant to visit her in Australia.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because she had “not demonstrated sufficiently strong employment, economic, family or other commitments that would be an incentive for [her] to return to [China]”.

7. The applicant applied for review of the delegate’s decision and the matter was constituted on 13 September 2023.

   Information to the Tribunal

8. With the review application the following document copies were submitted:

   -A letter from the review applicant.

   -A notarised Chinese Certificate showing that the review applicant and the visa applicant are sisters.

   -Property Title documents in the visa applicant’s name.

   -The visa applicant’s Business Licence for a trading company.

   -A labour contract between the visa applicant and her business.

   -A photograph of the visa applicant with an elderly person.

   -The visa applicant’s Household Registration booklet showing that she has a 35 year old son, a 24 year old son, an 18 year old son, and a 1 year old granddaughter who are all living in China.

   -A letter of admission into the School of Medical Inspection at the Changsha Medical University to the visa applicant’s youngest child.

   -A Campus Card in the name of the second youngest child of the visa applicant for the Beijing Contemporary Music Academy.

   -A letter of admission to the visa applicant from the Baoshan Prajna Institute of the Wenzhou Buddhist Academy, dated 20 February 2022.

   -A photograph of the visa applicant in Buddhist dress and with shaven head, with other Buddhist students.

9. In the review applicant’s letter she writes:

   Bin Fang submits that she fully intends to return to her home country (China) at the end of her proposed (short) stay in Australia and offers additional supporting evidence of this intention, as set out below. Bin Fang points out that the supporting evidence contains personal and private information, but she is willing to disclose this information in support of her visa application and this merits review as the evidence clearly shows that her life and home base is in China and she genuinely intends to return after settling her affairs and visiting family and friends in Australia.

   Financial ties to her home country (response to Finding 1)

   Bin Fang has significant financial ties to her home country. In support of this submission, Bin Fang has supplied the following information:

   Home ownership: Bin Fang has significant real estate assets in China. As an example, she has offered evidence of two of her personal residences, see attachments C and D.  Evidence of other residences can be provided if needed, but we submit that these examples show significant financial connection with China (substantially more than her connection to Australia).

   Business ownership / employment: Bin Fang runs a health and beauty clinic business in China and is its general manager. See attachment E, an official business licence for Bin Fang’s company.

   See also, attachment F, Bin Fang’s formal employment contract showing Bin Fang as general manager of the business. Bin Fang has significant responsibilities in China as the founder and general manager, particularly to her employees. By contrast, Bin Fang has no employment prospects in Australia (she is 55 years old, speaks no English and has no professional qualifications).

   It’s clear that Bin Fang has significant financial ties to China. With her property holdings, other asset holdings and employment responsibilities, Bin Fang can’t leave China except on a very temporary basis (i.e., a holiday). If Bin Fang were to reside in Australia permanently, she would not be able to access her substantial financial holdings in China (mostly in real estate) and she has no employment prospects in Australia.

   Significant personal commitments in her home country (response to Finding 2)

   Bin Fang has significant personal commitments in her home country. In support of this submission, Bin Fang has supplied the following information:

   -    Carer duties - Bin Fang’s mother: Bin Fang is the primary carer of our mother. Our mother currently resides in the city of Zhangzhou, Fujian province. Our mother lives in an apartment owned by Bin Fang and Bin Fang visits her multiple times per week.  Attachment G is a photo her Bin Fang and her mother.

   -    Carer duties - Bin Fang’s children: Bin Fang is the primary carer for her children (she is a single-mother). All of her children reside in China. Evidence proving Bin Fang’s parent-child relationships are in attachment H. This is an official register of Bin Fang’s household as issued by the PRC Ministry of Public Security. She is also grandmother to a new-born; the baby girl of her eldest son, Huang Jinglong. This is also evidenced in attachment H.  Bin Fang’s second child attends music school in Beijing, see attachment I, which shows the current student card for second son, Huang Weilong. Bin Fang’s youngest child has just started university, see attachment J, admission papers for her youngest son, Zhang Tian.

   Religious Studies: Bin Fang is undergoing religious studies in the Buddhist faith. She has recently commenced further studies in the Baoshan Prajna Institute of Wenzhou Buddhist Academy. Attachment K is the official admission papers.  As shown on the papers, her schooling started on 1 March 2022 and will continue for 2 years. Accordingly, if Bin Fang were to travel, she would need to return back to China to finish her religious studies.  Attachment K (Admission to Buddhist Academy.

   As a single mother to three children, who all reside in China, it is completely unreasonable to conclude that she would abandon them in favour of remaining in Australia on a permanent basis. Her youngest child is only 18 and has just started university and her second child still attends a music academy. She supports all her children (and our mother) financially. All female members of our family are followers of the Buddhist faith. Bin Fang, as the youngest sister, has only recently commenced her religious studies, and will be continuing her religious education for at least 2 more years in China.

   The evidence presented in the attached documents clearly demonstrates that Bin Fang’s financial and personal commitments are overwhelmingly in China.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

11. 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.

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

13. 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)).

14. According to the Department’s official Movement Records for the visa applicant she has previously been to Australia on five occasions as the holder of a Visitor visa.  There is no evidence or indication before the Tribunal that the visa applicant has breached any of her visa conditions, or overstayed any of her visas, on any of her visits to Australia.  The Tribunal gives this factor substantial weight in the visa applicant’s favour.

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

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

16. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal also accepts that she has access to her sufficient funds to support herself during a short visit to Australia. The Tribunal is therefore satisfied that she does not intend to work while in Australia.

17. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

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

19. The Tribunal accepts the visa applicant’s elderly mother, two adult children, teenage son, and one year old granddaughter are living in China. The Tribunal considers that the presence of her immediate family in China represents significant inducement for the visa applicant to return there. 

20. The information before the Tribunal indicates that the review applicant has a good immigration history in Australia. The Tribunal gives favourable weight to the good migration history of the review applicant in Australia. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia.  The Tribunal considers this motivation for the applicants to ensure the visa applicant complies with her visa conditions and departs before her Visitor visa expires.

21. The Tribunal accepts that the visa applicant has responsibilities for the care of her mother, two youngest sons who are still studying, and her household in China and that she would be strongly motivated to return to China for these reasons.

22. The Tribunal accepts the visa applicant operates a business and owns income generating property in China.  This evidence indicates that the visa applicant is in a secure financial position in China. There is a lack of any evidence that she would be motivated to remain in Australia for financial reasons. 

23. The applicants have provided reasonably persuasive information that the visa applicant has a comfortable and financially secure life in China and that she has no apparent motivation to live outside of China. 

24. In the Tribunal’s view the incentives for the visa applicant to return to China outweigh any reasons for her to remain in Australia past the expiry date of a Visitor visa.  This, together with her very good immigration history in Australia, satisfies the Tribunal that the visa applicant wishes to visit her sister and others in Australia and then return to her home in Australia

25. 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

26. 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