HE (Migration)

[2020] AATA 4448

HE (Migration) [2020] AATA 4448 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liwei HE

CASE NUMBER:  1904445

HOME AFFAIRS REFERENCE(S):          BCC2018/5841547

MEMBER:Tania Flood

DATE:11 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 August 2020 at 11:10am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream –genuine temporary stay criterion –10 years in Australia–strong incentive to remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 6 February 2019 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 27 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.

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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that he genuinely intends to stay temporarily in Australia for the purpose of tourism.  

5. The Tribunal hearing was held during the Covid-19 pandemic and the applicant agreed to appear by telephone.  On 6 August 2020 he appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   BACKGROUND

7. According to information contained in the application for a visitor visa, the visa applicant is a 26-year-old unmarried male from Fujian, China. He is unemployed and does not have any family members in Australia.

8. He first arrived in Australia in 2009 as the holder of a Schools Sector visa (TU-571). He was granted a Higher Education Sector visa (TU-573) and a Student visa (TU-500) while onshore. He returned to China on 22 December 2018 and re-entered Australia on 26 December 2018. His Student visa ceased on 27 December 2018 and he applied for a Visitor visa on the same date.

9. The applicant indicated that he wishes to remain in Australia for up to three months to ‘travel around Australia’. In a declaration to the Department, the applicant stated that he came to Australia to attend high school. He then studied two diplomas at university in 2014 and 2017. He stated that his father passed away suddenly in December 2018 and he returned to China to attend his father’s funeral. He stated that he wished to remain in Australia for two months so that he could pack his belongings and prepare to return to China. The applicant stated that he is an only child and will return to China to take care of his mother. His father has property in China which will be transferred under his name. He will also find a job in his hometown.

10. In addition, the applicant stated that he wishes to ‘relax and then travel in Australia’ and say goodbye to the country. He stated that he did not spend much time travelling because he had been studying for several years. He submitted that he does not have any family or friends in Australia and has no intentions to apply for any other temporary or permanent visas. The applicant also submitted his self-prepared travel plans which includes visiting a large number of sites in Queensland, Victoria, and New South Wales.

    Tribunal hearing

11. The applicant’s evidence to the Tribunal is summarised as follows:

12. He has lived in Australia for about ten years since his first arrival in the country.  He returned once to China when his father passed away in December 2018.

13. He came to Australia to study and completed high school and a further foundation course before enrolling in a diploma course.  He failed that course and later transferred to another.  He said he last engaged in any study prior to December 2018.

14. As to the Department’s letter which indicates he has not been enrolled in a course of study since November 2017 he stated that he never received the letter.  In any event he said that he was young and naïve at the time and did not realise the value of study.  Since his father’s death he has reassessed his priorities and wishes to continue with his studies in Australia.

15. While holding a Student visa in the past he did some part-time work in compliance with the requirement not to exceed 20 hours of work per week.  Currently he is not working and is supported by a relative in Australia who pays his rent.

16. He has not completed the travel he indicated in his application for a Visitor visa because the visa was declined and he thought it best to remain still until the review was decided.  He said he was not sure if he could travel in the circumstances.  In addition, the Covid-19 pandemic commenced which made travelling difficult.

17. As to his future intentions he said that if he is granted a Visitor visa he will apply for another Student visa.  If he is not granted the Visitor visa then he will have to go back to China.

18. As to any incentives he has to return to China he said there are none.  He said that he has lived in Australia for a long time and he is used to the life here.  While his mother is in China he and she are not close and they have no contact.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

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

21. 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)).

22. Based on the available evidence the applicant was not enrolled in a course of study prior to his student visa ceasing.

23. 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 or may be subject include the following: (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

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

24. According to the applicant he has not worked since his last Student visa ceased in December 2018.  He informed the Tribunal that he is supported by a relative in Australia who pays his rent.  He produced no evidence to support this claim and did not elaborate on how he meets his additional daily living expenses.  The Tribunal considers it unlikely the applicant has subsisted in the manner claimed for at least eighteen months.   Based on the available evidence the Tribunal considers it likely the applicant has been working in Australia without permission since December 2018 and is of the view he will continue to work if he is granted another Visitor visa.  The Tribunal does not accept the applicant will comply with condition 8101 if he is granted a Visitor visa.

25. The applicant’s intention to comply with conditions 8503 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

26. Whereas the applicant indicated in his application for the visa that he wanted to spend some time travelling in Australia before finally returning home he has not completed any such travel to date.  The Tribunal does not find his failure to do so is adequately explained and is of the view he never intended to complete the stated travel and is using the Visitor visa pathway as a means to prolong his stay in Australia.

27. In addition, the applicant indicated to the Tribunal that he wants to remain in Australia to undertake further study.  He said one of the reasons for applying for the Visitor visa is to enable him to apply for a Student visa onshore. 

28. The applicant also informed the Tribunal that he has no incentive to return to China given he does not enjoy a close relationship with his mother and has spent the last ten years living comfortably in Australia. 

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

30. In view of the above, the Tribunal is not satisfied that the applicant will comply with condition 8503 if he is granted a Visitor visa or that he genuinely intends to remain in Australia temporarily for the purpose of tourism.

31. The Tribunal finds that the requirements of cl.600.211 are not met.

    DECISION

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

    Tania Flood
    Member