Gao (Migration)

[2024] AATA 3129

Gao (Migration) [2024] AATA 3129 (1 August 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Ms Yuping Gao

VISA APPLICANT:  Ms Yuhua Gao

REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)

CASE NUMBER:  2423159

HOME AFFAIRS REFERENCE(S):           BCC2024/3541383

MEMBER:  Linda Holub

DATE:  1 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 1 August 2024 at 1:07pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – Australian Permanent Resident spouse – family funeral – balance of family in Australia – separate permanent visa application – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 Home Affairs on 12 July 2024 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 4 July 2024. 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 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 (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 on balance the delegate was not satisfied the applicant had sufficiently demonstrated that they intended a genuine temporary stay. Therefore, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes set out.

5. The review applicant appeared before the Tribunal on 31 July 2024 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video through the Microsoft Teams application. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that she had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The Tribunal attempted to take oral evidence from the visa applicant but despite attempting a number of methods was unable to proceed. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The review applicant was represented in relation to the review. Her representative attended by video with her.

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

BACKGOUND

1. The review applicant is the visa applicant’s sister. She was granted a Tourist (TR-676) visa on 10 September 2010 and arrived in Australia on 22 September 2010. She applied for a [permanent] visa on 20 October 2010. The delegate of the Minister refused her application on 17 January 2011 and subsequently she applied for review of that decision at the former [Tribunal]. The decision was remitted, and she was granted a [permanent] visa on 19 May 2011. The review applicant became an Australian citizen on 26 January 2015.

10)The visa applicant is a citizen of China and was born in September 1972. She resides in the city of Fushun, Liaoning Province. In her visa application, she declared she is married and has two children – a son born in February 1995 and a daughter born in April 2005. They reside in Australia on Student visas.

11)The visa applicant also declared that her spouse / de facto partner resides in Australia and that she has a stepchild. Her spouse, stepchild and her daughter reside at the same address. Her mother also resides in Australia and is an Australian Permanent Resident.

HEARING

Oral evidence of the review applicant

12)The review applicant stated that she came to Australia in September 2010, and she applied for a [permanent] visa [details deleted]. She stated the visa was granted to her. [Details deleted.]

13)The review applicant stated her parents were granted Contributory Parent visas and she has a younger sister in Australia who was also granted a [permanent] visa. In regard to her sister’s [application], she stated they were not [granted the visas on the same basis]. She stated [she] does not know the specifics. [Details deleted].

14)The review applicant stated that she works as an accounting assistant in a factory. She lives with her daughter (who came with her from China) and her partner.

15)In relation to the visa applicant, the review applicant confirmed information contained in her application that her previous applications for a Guardian visa in 2012 and a Visitor visa in 2014 were refused, noting it was many years ago. She also confirmed that the visa applicant has not travelled out of China.

16)The review applicant confirmed the visa applicant is married to an Australian Permanent Resident who resides in Australia and stated that they submitted a Partner visa application last year. From recollection, she thinks it was in the second half of the year. Both the visa applicant’s children are in Australia on Student visas.

17)I noted that the visa applicant had originally indicated that she intended to stay from July until October 2024 and asked the review applicant what her sister’s current intention is now that their father had passed away. She responded by referring to their Buddhist faith and that there are a number of rituals that must be conducted on specific days, including up to day 49 so the visa applicant still intends to stay for that period. The review applicant stated they had not made any other plans for her visit because the main reason for it was to see their father and now it is for his burial and funeral. The funeral has been arranged for 5 August.

18)I put it to the review applicant that I have a concern that both of the visa applicant’s children, her mother, two siblings and husband all reside in Australia and appear to provide very strong incentives for her to remain in Australia. She responded that she understands that it may appear like that, but they are not a reason for her to remain in Australia. She stated the visa applicant has already lodged a Partner visa application. She stated the sole purpose of her visit is to attend the funeral. She stated it’s a simple issue and she doesn’t know why they have to jump through so many hoops. She stated

the visa applicant has her pension, a stable job, and a property in China, and it does not make sense for her to remain in Australia.

19)I put it to the review applicant that it does not appear that the pension, her stable job, and property are significant incentives for her sister to return to China, given she has applied to migrate to Australia permanently. The review applicant responded that the visa applicant has already found a partner. She repeated that it does not make sense for her to remain here illegally because she would not be able to go back. I informed the review applicant that I was not implying that the visa applicant would attempt to remain here unlawfully, but rather that she might chose a different pathway. She responded they already have a pathway in progress.

20)I asked her if there are any other incentives she would like to tell me about. She responded that the most important thing is that they have already lodged the Partner visa application and she has no reason to stay. She said the other crucial issue is that she really wants her sister to attend their father’s funeral and to see him off.

21)I referred to the review applicant’s comment that the visa applicant had already ‘found’ a partner and asked her what she meant by that. She explained that that they met through a friend of hers who had now passed away.

22)The review applicant stated the visa applicant’s husband goes to China every three or four months. She stated his is paying for her airfare and that they will stay together in their own property.

23)I asked why her husband did not sponsor her application as he is paying for her travel expenses, and she is staying with him. She responded that when they applied for the visa, he had already planned to visit China and then her father was diagnosed with cancer. They thought he should still go to China to console he visa applicant because of the bad news.

24)The visa applicant lives by herself close to her workplace. The review applicant stated that the visa applicant has worked in the leather goods store for about six or seven years although she was unable to recall when she first stated. Prior to that, the visa applicant worked in a sportswear store in which she had shares. The review applicant stated she doesn’t know why she changed jobs as it was a personal matter.

25)The review applicant stated the visa applicant has not had any problems in China in relation to her religion or ethnicity. The review applicant stated that the visa applicant is in good health and does not believe that she takes any medication.

26)[Details deleted.]

27)[Details deleted.]

28)[Details deleted.] At the commencement of her Tribunal hearing, she confirmed that there was nothing in her initial statement of claims

or in her interview that she wished to change or amend in any way, and she had confirmed that what she had said at the interview was correct. [The Tribunal discussed evidence from her previous application.]

29)I put it to the review applicant that this was inconsistent with her current evidence [concerning her family]. She had made no reference to her sister. I explained that the difference between her evidence at that hearing and this one may raise questions about her credibility. I told her that it may raise doubts for me that [deleted].

30)The review applicant responded that maybe she misunderstood my question. [Details of the evidence deleted.]

31)I told her I would consider her explanation in the context of her overall evidence.

32)[Details deleted.]

Attempts to connect the visa applicant

33)The Tribunal attempted to contact the visa applicant through the Microsoft Teams application but was unable to do so. Mobile phone contact was made with her, however there was some technical difficulties which meant the interpreter was unable to hear her sufficiently clearly. For that reason, the Tribunal did not proceed to take oral evidence from her.

34)The Tribunal explained to the review applicant that it is not obliged to take evidence from the visa applicant and given the technical difficulties in doing so would be unable to proceed. In that instance it would therefore be reliant on her oral evidence as well as the written information and evidence before the Tribunal.

Oral submissions from the representative

35)The applicants’ migration representative stated that he had no oral submissions to make.

36)I clarified a question I had regarding the visa applicant’s bank statements that had been submitted to the Department as it was unclear to me as to whether they reflected one bank account over a period of time or several accounts. The representative told me his understanding was that the statements are in relation to one bank account.

CONSIDERATION OF CLAIMS AND EVIDENCE

37)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.

38)At the time of application, the visa applicant sought the visa for the purposes of visiting her sick father, who has now passed away. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231. She seeks the visa for a three month stay from July until October 2024.

39)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)).

40)In her application she declared that her application for a guardian visa was refused in 2012 and that an application for a Visitor visa was refused in 2014. The review applicant and her sister were granted [permanent] visas in Australia following their arrival here. The visa applicant’s children reside in Australia on student visas, and her parents were granted Contributory parent visas.

41)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.

FINDINGS

42)The Tribunal accepts that the visa applicant wishes to visit Australia to attend her father’s funeral and burial and to take part in related religious rituals.

43)The Tribunal is prepared to accept that the visa applicant’s husband intends to pay for her airfare and that she will stay with him. However, no evidence was provided from him about this or about his ability to do so.

44)The Tribunal accepts that the visa applicant has not experienced any problems in China for any reason related to their religion or ethnicity.

45)The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia. Condition 8503 refers to entitlement and does not require compliance.

46)The Tribunal however had concerns that the incentives for the visa applicant to remain in Australia outweigh those that exist for them to return to China. In this, regard the Tribunal has taken into consideration the oral evidence provided that the visa applicant’s mother, sisters, husband and her children all reside in Australia.

47)The Tribunal has considered the review applicant’s oral evidence that the visa applicant’s job, pension and property provide incentives for her to return to China. The Tribunal did not give them significant weight because the fact of her lodging a Partner

visa application indicates that she wishes to migrate to Australia and is of the view that those incentives did not provide a sufficient reason for her to remain in China.

48)The Tribunal has considered the review applicant’s oral evidence that it makes no sense for the visa applicant to remain in Australia at the end of her period of allowed stay because she already has a migration pathway through her lodgement of a Partner visa application. The Tribunal has regard to this fact, but this is a lengthy process and therefore may seek to change her migration status while she is onshore.

49)The Tribunal also has concerns regarding the family’s migration history, noting that both the review applicant and her sister sought [permanent visas] after their arrival in Australia.

50)[Details deleted.] However, the Tribunal notes [the evidence provided] and that this raises potential reasons why she could seek to change her migration status while onshore.

51)While the Tribunal is sympathetic to the fact that the visa applicant wishes to attend her father’s funeral and take part in related religious rituals, 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.

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

53)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

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

Linda Holub Member