Han (Migration)

[2020] AATA 5221

Han (Migration) [2020] AATA 5221 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tianshu Han

CASE NUMBER:  1900876

HOME AFFAIRS REFERENCE(S):          BCC2018/5400642

MEMBER:Adrienne Millbank

DATE:26 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 26 November 2020 at 2:05pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – substantial compliance with conditions of last substantive visa – enrolment cancelled for unsatisfactory course progress, and period of non-enrolment – intention to comply with conditions of visa applied for – original intention to finalise affairs and travel – later intention to remain during COVID-19 pandemic and leave when flights resume – no restrictions on temporary visa holders leaving – conditions not to work or study – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 24 December 2018 to refuse to grant the visa and review applicant (the applicant) a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 29-year-old national of China, who first arrived in Australia in December 2013 on a Student (Subclass 573) visa. He was granted further student visas, his last one a Student (Subclass 500) visa in August 2016, which ceased on 2 December 2018.

3. The applicant applied for the visa on 2 December 2018. 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 (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. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.211.

6. The decision records that the applicant, in his application form, stated his reason for requesting a further stay, until 2 June 2019, was: ‘I finish my study in Australia, and need more time to deal with something and travel in Australia before I go back my country’. The delegate noted that the applicant’s course enrolment (in a Bachelor of Business) was cancelled on 22 May 2018 for the reason of unsatisfactory course progress; that no enrolment was recorded after that date; and that the applicant did not respond to the Department’s requests for evidence of course enrolment. The delegate noted that as the holder of a Student (Subclass 500) visa the applicant was required to comply with condition 8202, requiring continuing enrolment, but had not.

7. The delegate therefore was not satisfied that the applicant had complied substantially with the conditions to which his last substantive visa was subject, or that he intended to comply with the conditions to which the FA600 Visitor-Tourist Stream visa would be subject.

8. The applicant appeared before the Tribunal on 24 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, 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 telephone. No concerns were raised by the applicant in relation to holding a telephone hearing. Difficulties and short delays were experienced during the hearing when the applicant could not be heard clearly, and was re-dialled. Despite these difficulties, the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal confirmed with the applicant before concluding the hearing, that he had said all that he wanted to say at the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the 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. At the time of application, the applicant sought the visa for the purposes of finishing his studies, dealing with ‘some things’, and travelling in Australia. At the time of decision, the applicant seeks the visa for the purpose of remaining in Australia until the COVID-19 situation settles down. 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. At hearing, the applicant stated that he understood the delegate’s decision, and did not dispute the reasons for the decision. He confirmed that his enrolment in his final course of study was cancelled on 22 May 2018 for the reason of ‘Unsatisfactory course progress’; that he remained in Australia on a student visa without being enrolled in any course; and that he understood that he might be found not to have met conditions attached to his previous visa. The applicant stated that he ‘could not’ study in Australia.

15. The applicant did not comply with condition 8202 attached to his student visa, which required him to be enrolled in a full-time registered course; to maintain enrolment in a registered course; and not be certified by the education provider as not achieving satisfactory course progress. Accordingly, the Tribunal finds that the applicant has not complied substantially with the conditions of the last substantive visa he held.

16. The Tribunal must also consider whether the 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.

17. In his visa application form, the applicant gave his employment status as ‘Student’; stated that his stay in Australia on a visitor visa would be ‘Self funded’; and stated that he had ‘more than AUD2,000’ to support his stay in Australia. The applicant did not deny, at hearing, that he has worked to support himself while living in Australia on student visas. The applicant, on his own admission, did not comply with the conditions of his last student visa: his last course enrolment was cancelled for unsatisfactory course progress, and he remained in the country without being enrolled in a course of study. In these circumstances, the Tribunal does not consider that the applicant intends to comply with the conditions to which the visa would be subject, specifically, condition 8101, must not work in Australia.

18. The Tribunal has also considered all other matters relevant to the genuineness of the applicant’s intention to stay temporarily in Australia for the purpose for which the visa would be granted (cl.600.211(c)).

19. The Tribunal asked the applicant, at hearing, to clarify what are his reasons, or purposes, in seeking a visitor visa, at the time of decision. The applicant stated that he has none, but is unable to leave the country. He stated that he considered leaving ‘in August or September’, but was unable to because of COVID-19. He stated that he intends to leave when passenger flights to China resume.

20. The Tribunal asked the applicant why he applied for review of the delegate’s decision, as he was not engaged in the study he claimed he intended to finish, and he had already spent five years living in Australia on temporary (student) visas. The applicant stated that he needed to extend his stay in Australia to deal with ‘things’ associated with his having lived here since 2013 – he had a leased apartment, a car and other possessions, and needed time to organise his affairs for departure; and, further, he wanted to travel. The Tribunal asked the applicant why he did not leave the country in June 2019, as he had extended, by applying for review, his stay for the six months he was seeking, and had the time to travel and arrange his affairs for departure. The applicant stated that he could not leave because of the coronavirus.

21. The Tribunal does not find the coronavirus a credible explanation for the applicant’s extended stay, or for seeking further stay on a visitor visa. The Tribunal does not accept that the applicant has been unable, since the application was refused, or since June 2019 following the extra six months he claimed he sought when he lodged the visa application, to book a flight home to China. The Tribunal notes that outward-bound flights to China have continued, albeit with tickets at higher prices than usual, and that no restrictions have been imposed preventing non-citizen temporary visa holders from leaving the country. In any event, the Tribunal considers that the applicant is able to apply for a bridging visa to enable him to stay lawfully in the country, pending his genuine efforts to secure a flight home. The Tribunal is not satisfied that the applicant genuinely intends to stay temporarily for the purpose of waiting for the COVID-19 situation to improve.

22. For the above reasons the Tribunal is not satisfied that the 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

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

    Adrienne Millbank
    Member