He (Migration)

[2017] AATA 2617

He (Migration) [2017] AATA 2617 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xinming He

VISA APPLICANT:  Ms Fuying He

CASE NUMBER:  1703022

DIBP REFERENCE(S): BCC2016/4313438 BCC2016/4313462

MEMBER:Linda Symons

DATE:27 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 November 2017 at 4:59pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 – Sponsored Family stream – Visa applicant seeking to do sightseeing and visit son in Australia – Visa applicant’s other children live in China – Review applicants have repeatedly breached Immigration laws – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958 ss 65, 359AA
Migration Regulations 1994 Schedule 2 cls 600.211 Schedule 8 Conditions 8101, 8201, 8503, 8531

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 Immigration on 6 February 2017 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 20 December 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 he was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

5. The review applicant appeared before the Tribunal on 23 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and her husband. The hearing was conducted as a joint hearing in relation to applications for review lodged by the review applicant with respect to both his parents. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin, Fuqing and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent, Mr Harry Huang.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her son and sightseeing This is a purpose for which a visa in the Sponsored Family stream may be granted.

10. 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. There is no evidence before the Tribunal to indicate that the review applicant has travelled to Australia previously. 

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that he will provide the visa applicant with accommodation and pay for her living expenses in Australia. He stated that the visa applicant will pay for her airfare and anything she wants to purchase in Australia. He gave evidence that he is employed as a ‘renovator’ and earns an income of approximately $20,000.00 per annum. He stated that his wife is not in paid employment and is in receipt of work cover payments which she has been receiving for the last three to four years. He stated that they own a four-bedroom house in Carlingford and an investment property. He stated that he has savings of $70,000.00 in a bank account. He stated that his home is subject to a mortgage.

13. The review applicant gave evidence that the visa applicant and her husband are farmers and farm peanuts and sweet potatoes. He stated that they own a house, farming land and have savings of approximately 200,000.00 rmb. He stated that the review applicant has no intention of working, studying or undertaking any training in Australia.

14. The review applicant gave evidence that she is a farmer and farms peanuts and sweet potatoes. Her husband gave evidence that he has savings of approximately 100,000.000 rmb and is able to purchase airline tickets for himself and his wife. He stated that they will live with the review applicant in Australia and their living expenses will be paid for by him. He stated that he plans to bring a few thousand dollars with him. The visa applicant stated that she has no intention of working, studying or undertaking any training in Australia.

15. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that the visa applicant and her husband wish to come to Australia for approximately three months. He stated that they want to visit him and his family, see what their life is like in Australia and to do some sightseeing. He stated that he wants to show them around Sydney and take them to the Gold Coast and Canberra. When asked what would happen to the visa applicants’ farm while they are in Australia for three months, he responded that his paternal uncle will look after the farm for them.

16. The Tribunal asked the review applicant what the visa applicant’s incentives are to return to China at the end of her holiday in Australia. He responded that she has three daughters and grandchildren in China. He stated that she and her husband have a house. He stated that she cannot speak English. He stated that, because of her age, she would prefer to stay in a place that she is familiar with. He stated that the visa applicant and her husband wish to come to Australia now while they are fit and able to travel as it will be more difficult for them as they get older. He stated that they just want to visit him and do some sightseeing.

17. The visa applicant gave evidence that she would like to stay in Australia for two to three months. When asked what she was planning to do during that time, she responded that she would like to do some sightseeing in Sydney and wherever the review applicant takes them. When asked what incentive she has to return to China at the end of her holiday in Australia, she responded that she wants to have a look at Australia because she has heard that it is a beautiful country. She stated that she will return to China after two or three months. When asked why she would return to China, she responded that she has her three daughters, a house and a farm. When asked what would happen if she came here and decided that she wanted to live with her only son, she responded that it is impossible for her to stay here long term. She stated that she would like to come to Australia to have a look.

18. The Tribunal has considered other relevant matters including the immigration history of the review applicant and his wife. The records of the Department indicate that the review applicant came to Australia on 11 July 2008 as the holder of an Entertainment visa. He then applied for [another] visa and his application was refused by the Department. He applied to the Tribunal for review of that decision and the Tribunal affirmed the Department’s decision. He then applied for judicial review and went through the whole Court system but was unsuccessful. His Bridging visa then expired on 18 May 2010 and he remained in Australia as an unlawful non-citizen. Two years later, he applied for a Partner visa and was granted a Partner visa on 4 November 2013.

19. The Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, and noted that his immigration history caused it concern. The Tribunal noted that it indicates a disregard for Australia’s immigration laws. The Tribunal noted that it had difficulty accepting his assurances that he would ensure that the visa applicant complies with Australia’s immigration laws. The Tribunal informed him that it has concerns that the visa applicant may intend coming to Australia to apply for a permanent visa just as he did. He responded that he came to Australia on a Visitor visa. [Visa details deleted]. He stated that when his Visitor visa expired he [did not want to return] to China. He stated that he finally found his partner and applied for a Partner visa.

20. [Details deleted].

21. The review applicant responded that the visa applicant and her husband are able to apply for Visitor visas through a tour accompany and come to Australia. He stated that they do not want a tour guide taking them sightseeing. He stated that that is why he applied for a review of the Department’s decision and is prepared to lodge a security bond.

22. The records of the Department indicate that the review applicant’s wife arrived in Australia on 23 August [2010]. She then applied for a [permanent] visa which was granted on 24 August 2011. She then sponsored the review applicant for a Partner visa. The Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, and noted that his wife’s immigration history caused it concern. The Tribunal noted that it indicates that his family have no respect for Australia’s immigration laws. The Tribunal noted that it was concerned that the visa applicant’s husband may intend coming to Australia to apply for a permanent visa, like his wife did, and not for a holiday. (The Tribunal notes that the visa applicant intends travelling to Australia with her husband).

23. The review applicant responded that he had nothing to say. He then stated that the visa applicant and her husband want to come to Australia and have a look around.

24. The review applicant’s migration agent, Mr Harry Huang, requested that the Tribunal ask the review applicant whether it was the visa applicant’s husband’s intention to apply for a [permanent] visa when he comes to Australia. When the Tribunal asked the question, the review applicant responded that it is not. The Tribunal places no weight on this response.

25. The Tribunal has considered whether the payment of a security bond by the review applicant would ensure the visa applicant’s compliance with the conditions of her Visitor visa. The review applicant gave evidence that he is prepared to lodge a security bond in the sum of $30,000.00. The Tribunal is not satisfied that it would provide sufficient incentive for the visa applicant to comply with the conditions of her Visitor visa.

26. Having considered all the evidence, the Tribunal accepts that the presence of the visa applicant’s three married daughters, her grandchildren, her home and farm in China provide an incentive for her to return to China after her permitted stay in Australia. However, the Tribunal notes that with her advancing years and her failing health her ability to continue working on the farm may be limited. The Tribunal also notes that she intends travelling to Australia with her husband so she would not have the incentive to return to China to be with him. The Tribunal further notes that her only son and her two grandsons live in Australia and is of the view that this would provide a strong incentive for her to remain in Australia after her permitted stay. The Tribunal is of the view that her incentives to remain in Australia are stronger than her incentives to return to China.

27. 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

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

    Linda Symons
    Member