Han (Migration)

[2024] AATA 2093

Han (Migration) [2024] AATA 2093 (6 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yajuan Han

VISA APPLICANT:  Mr Guoqiang Han

REPRESENTATIVE:  Ms Fengfeng Zhang (MARN: 1277056)

CASE NUMBER:  2304990

HOME AFFAIRS REFERENCE(S):          BCC2023/1245660

MEMBER:Louise Nicholls

DATE:6 June 2024

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 06 June 2024 at 4:49pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting family – applicant has significant family ties in Fujian Province – income and property interests in China – visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant for the visa (the visa applicant) is a citizen of the People’s Republic of China (China) and he is 40 years old. The applicant for review (the review applicant) is the applicant’s sister and she is a permanent resident of Australia.

2. The visa applicant applied for a Visitor (Class FA) visa on 20 February 2023. He provided identity documents, a bank statement, a letter from his employer and a bank statement to support the application.

3. 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.

4. 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.

5. On 15 March 2023 a delegate of the Minister for Home Affairs refused to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of the Regulations. The delegate was not satisfied that the visa applicant had a genuine intention to stay temporarily in Australia for the purpose of visiting his sister.

7. The review applicant sought review on 7 April 2023. She provided submissions made by her representative, tax and bank statements, business documents, photographs and family relationship documents.

8. The review applicant appeared by MS Teams video before the Tribunal on 13 May 2024 to give evidence and present arguments. Due to technical difficulties in the video hearing the hearing was adjourned to 6 June 2024.

9. The review applicant, her husband and the visa applicant attended the adjourned hearing on 6 June 2024. The hearing was conducted by MS Teams video and the visa applicant gave evidence by MS Teams audio. The review applicant was represented by her migration representative who attended the hearing. The applicants gave evidence about their respective backgrounds and other relevant matters. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

    CONSIDERATION

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.

    Background

12. The review applicant gave evidence she is 46 years old and was born in Caobing Village, Gangtou Township, Fuqing City district in Fujian Province. She attended school in the local area and after she finished school helped her parents around the house. She was not employed after she left school and married in 1999. She and her husband came to Australia in 2009. Her husband is a carpenter, and he came to Australia as the holder of a temporary work visa (Subclass 457). They have both since become permanent residents.

13. The review applicant and her husband have three children ranging in age from 22 years to 16 years.  

14. The review applicant has two younger brothers, and both live in Fujian Province. Her youngest brother, the visa applicant, lives with their parents, his wife and his three children in the family home in the village. The review applicant’s elder brother died in China some years ago when he was 44 years old. Her parents are retired, and the visa applicant is an electrician. Her other brother lives in Fuqing City. The applicants provided photographs which show the visa applicant’s family group standing in the doorway of the family home in their home village.

15. The review applicant has visited her family in Fujian Province several times since she and her husband first arrived in Australia in 2009.

16. The visa applicant gave evidence that he is 40 years and is living in Fujian Province with wife, his three school age children and his parents. He stated that he is the owner of the family home in the village.

17. He attended school in the local area and when he finished school he worked in the local area and then later as an electrician. He still works as an electrician and told the Tribunal he is responsible for the maintenance of electrical devices in the rural area in which he lives. He works for himself but also does installation and maintenance work for companies in the area. His wife works in online sales and “authorised purchases”.

18. The visa applicant stated that his elder brother had passed away and he has another brother who lives in Fuqing City, Fujian Province where he owns a shop.

    Purpose and duration of visit

19. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister. This is a purpose for which a visa in the Tourist Family stream may be granted: cl 600.221 and cl 600.222.

20. The visa applicant is seeking to visit Australia for about 1 month. The visa applicant would like to spend time with the review applicant during the proposed visit and to spend some time sightseeing on the Gold Coast and the Sunshine Coast. He would stay with the review applicant during her visit and she and her husband would provide accommodation and pay for other living expenses.

21. The review applicant stated that she had invited her brother to visit because he had been responsible for the care of their parents since their elder brother passed away in 2017. She explained that he had never travelled outside China and she wanted him to see how she and her family lived.

22. The visa applicant stated he was travelling without his wife because she had stay home to care for their three children who were attending high school.

    Travel and migration history

23. The review applicant has travelled to China a number of times to visit her family. She stated that her parents had visited her in Australia in 2016 and returned to China before the end of their permitted visa period. Her husband’s parents have also visited, and they returned to China at the end of their visit.

24. The review applicant’s nephew came to Australia as a student visa holder and commenced his studies in Australia but when his father, (the review applicant’s elder brother) became ill he returned to China to help the family before his father died.

    Compliance with conditions of last substantive visa.

25. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose of a visit, 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)).

26. The visa applicant has not previously travelled to Australia and thus there is no evidence of non-compliance with conditions of the last substantive visa held, or any subsequent bridging visas.

    Intention to comply with conditions.

27. 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.

28. The visa applicant and review applicant gave evidence that the visa applicant’s only intention was to visit Australia and to do some sightseeing. The visa applicant told the Tribunal he understood that it was important to comply with any conditions which might be imposed on any visa which might be granted. He stated that he understood that he could not work or study and that if he breached any visa conditions his visa would be subject to cancellation.

    Other relevant matters

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

30. The Tribunal considers that the applicant has family ties in Australia and China. His parents, wife and children and brother are living in China, and he stated that after his visit he would return to live with, and support, his family and his work as an electrician.

31. In the written submissions the representative stated that the visa applicant worked for a pharmaceutical company and also worked as an electrician in his local area. At the hearing the visa applicant stated that his only work was as an electrician although he also did work for companies in the area. The visa applicant provided a copy and translation of a special operation certificate issued on 29 August 2010 by the State Administration of Work Safety which showed the applicant was certified to undertake high voltage electrical work. The visa applicant has also provided a certificate and English translation signed by the head of the village committee which states that the applicant is the electrician has been responsible for the installation and maintenance of residential electricity for the village since 2010. This is consistent with the evidence given by the visa applicant at the hearing. The visa applicant also provided photographs which showed him working on a light fitting in a building.

32. The visa applicant provided evidence of his property interests in Fujian Province, being a three-storey home in the home village. The photo provided to the Tribunal shows five stories however the property description lists the property as mixed use and the Tribunal accepts that the property shown is owned by the family.

33. He also provided evidence of a term deposit and the Tribunal accepts that he holds amounts by way of deposits but there is no evidence in that document of transactions or income. He also provided a Wechat transaction record which appears to show miscellaneous deposits of income, withdrawals, and payments.

34. The Tribunal discussed the importance of compliance with visa conditions for any visa which might be granted, bearing in mind that the visa applicant and family members may wish to visit Australia in the future and a compliant visa history was one important factor in considering visa applications.

35. The applicant stated he had obtained a passport in 2020 and that he had a good record in China and had no difficulty obtaining his passport.

36. The visa applicant stated that he and other family members do not belong to any Christian churches or any cults. They are not Falun Gong practitioners and have not had any problems with police or state authorities. They own their own home, and it is not subject to land confiscation orders. He stated that they do not owe any money to the bank and there is no mortgage on the property.

37. He stated his parents were Taoists and attended Taoist temples in the local area from time to time. The representative submitted that Taoism was commonly practised by the older generation in rural areas of Fujian province and was a Chinese religion accepted by state authorities. The religion encouraged filial duty and respect in families. The Tribunal has considered country information on the Chinese state’s attitude to Taoism and notes that the latest report published by the Department of Foreign Affairs on China[1] states:

    3.22 China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture.  

    …

    3.23 Religion in China is traditionally not as separate from everyday life as in the West. Chinese people, especially those of traditional Chinese faiths like Buddhism, Confucianism and Daoism integrate religious practice into their everyday life and lifestyles, including perhaps with home shrines and/or cultural festivities and events. Buddhist, Daoist and Confucian practices are not mutually exclusive; it is common to practice more than one these faiths….

    …

    3.27 …..Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.

    [1] DFAT Country Information Report People’s Republic of China December 2021

    Assessment of evidence

38. The Tribunal has considered all the relevant evidence and finds that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of visiting his sister and her family.

39. The Tribunal considers that the visa applicant has significant family ties in Fujian Province including his parents, wife and three school aged children. While this does not necessarily guarantee the visa applicant will comply with visa conditions and return to China at the end of any permitted visit it is an indicator that the visa applicant intends to return to China at the end of the proposed visit. The Tribunal accepts the visa applicant works primarily as an electrician in his local area and has property and funds which would also act as an incentive for him to return to his family at the end of any visit.

40. The Tribunal also considers that the visa applicant and the review applicant are aware of the importance of maintaining a compliant migration history so that future visa applications are not considered unfavourably. The review applicant gave evidence that her parents and parents in law have visited them in Australia and have complied with visa conditions and returned at the end of their permitted stays. The period of the intended visit and the expressed intention to visit tourist attractions in Queensland are consistent with the stated purpose of the visit.

41. The Tribunal has considered those matters which might act as an incentive for the applicant to remain in Australia past the period of any permitted stay or to work while he is in Australia, those being, his family ties in Australia and the possibility of obtaining better paid work in Australia than in Fujian. The Tribunal has also considered the historical willingness of people from Fujian to travel and live overseas when compared with the general population in China[2].

    [2] DFAT Thematic Report on Fujian Province People’s Republic of China 2016 p.2.3 and 2.4.

42. However, overall the Tribunal consider that the factors which will encourage the visa applicant to return to China at the end of any proposed visit, that is, his immediate family ties, his income and property interests in China, his responsibility for his parents welfare and the lack of any conflict or problems in China involving religion, protests or problems with state authorities outweigh those factors which might suggest he will remain in Australia past the end of any permitted visit, or that he will not comply one of the conditions of any visa which might be granted.

43. Further the visa applicant and review applicant are aware that if the visa applicant does not comply with a condition of any visa granted this may have an adverse impact on future proposed visits by the visa applicant and other family members.

    Conclusion

44. 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

45. 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.

    Louise Nicholls
    Senior Member