Hua (Migration)

[2020] AATA 5904

Hua (Migration) [2020] AATA 5904 (23 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yifan Hua

VISA APPLICANT:  Mrs Huifang Shi

CASE NUMBER:  1913934

HOME AFFAIRS REFERENCE(S):          BCC2018/1367388

MEMBER:Hugh Sanderson

DATE:23 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 23 October 2020 at 10:54am

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – business closed down - no continuing business or employment interests in Australia– substantial ties criterion not met -– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 155.212

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 14 May 2019 to refuse to grant the visa applicant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 March 2018. At the time of application, Class BB contained two subclasses – Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return). In this case, claims have been advanced in respect of Subclass 155. The criteria for a Subclass 155 visa are set out in Part 155 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.212(3) because the delegate was not satisfied the visa applicant had substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

   Background

4. The visa applicant is a citizen of China and is currently 55 years old. She is married to Jianchun Hua who made an application at the same time as the visa applicant and his application was also refused by the Department. He is subject to a separate review application, number 1913935. They shall hereinafter be referred to as “the applicants”. The review applicant is the applicants’ son.

5. The applicants and the review applicant were granted Subclass 163 State/Territory Sponsored Business Owner (Temporary) visas on 16 September 2008. They were granted Subclass 892 State/Territory Sponsored Business Owner (Residence) visas on 17 April 2013. These visas expired on 17 April 2018. The review applicant was granted a Subclass 155 Return Resident visa on 23 March 2018.

6. The visa applicant’s movement records show that up to the end of 2013 she has been in Australia over the following periods:

   ·From 14 March 2009 to 12 April 2009 (19 days);

   ·From 13 November 2009 13 December 2009 (1 month);

   ·From 19 April 2010 to 10 July 2010 (2 months and 21 days);

   ·From 8 October 2010 to 31 December 2010 (2 months and 23 days);

   ·From 29 March 2011 to 26 September 2011 (5 months and 28 days);

   ·From 13 October 2011 to 9 January 2012 (2 months and 25 days);

   ·From 8 February 2012 to 18 January 2013 (11 months and 10 days);

   ·From 27 February 2013 to 9 June 2013 (3 months and 13 days);

   ·From 31 July 2013 to 30 September 2013 (2 months)

   ·From 28 September 2017 to 1 October 2017 (3 days);

   ·From 6 October 2017 to 9 October 2017 (3 days); and

   ·From 30 December 2017 to 7 January 2018 (7 days).

7. The movement records of the visa applicant’s husband are as follows, with the visa applicant and her husband travelling together on the last three occasions they entered Australia:

   ·From 14 March 2009 to 22 March 2009 (8 days);

   ·From 2 May 2010 to 9 May 2010 (7 days);

   ·From 10 March 2012 to 18 March 2012 (8 days);

   ·From 30 April 2012 to 9 May 2012 (9 days);

   ·From 4 August 2012 to 12 August 2012 (8 days);

   ·From 29 September 2012 to 6 October 2012 (7 days);

   ·From 22 December 2012 to 3 January 2013 (12 days);

   ·From 27 April 2013 to 6 May 2013 (9 days);

   ·From 16 September 2013 to 22 September 2013 (6 days);

   ·From 28 September 2017 to 1 October 2017 (3 days);

   ·From 6 October 2017 to 9 October 2017 (3 days); and

   ·From 30 December 2017 to 7 January 2018 (7 days).

8. The applicants provided various documents establishing their ties to Australia. This included a contract for the purchase of real estate and mortgage documents, including a letter from the mortgagee dated 2 July 2013. Evidence of that property being rented out by the applicants was also provided. Part of the visa applicant’s tax return for the year ending June 2017 was provided showing a net loss for her investment property.

9. The delegate who considered the application noted the following:

   ·As the visa applicant was present in Australia as a holder of a permanent visa for a total of 133 days in the period five years immediately before the lodging of the application she did not meet the criteria in cl.155.212(2);

   ·The fact that the visa applicant owns a rental property in Australia does not indicate any substantial ties to Australia;

   ·The visa applicant has made multiple short-term visits to Australia, spending a total time of only 133 days in Australia since the grant of her permanent visa indicating she does not regard Australia as her home;

   ·The applicant’s son has been granted a Return Resident Visa valid to 23 March 2023, however, her son is 29 years old and is independent of the visa applicant and was granted the visa on his own merits;

   ·The applicant’s son had departed Australia on 7 January 2018 and was overseas at the time the delegate considered the application[1];

   ·The delegate was not satisfied the applicant had substantial business or personal ties with Australia which were of benefit to Australia and therefore did not meet the criteria in cl.155.212(3);

   ·As the applicant was outside Australia at the time of the application she did not meet the criteria in cl.155.212(3A);

   ·The applicant was not a member of the family unit of the person who met the primary criteria and therefore did not meet the criteria in cl.155.212(4);

   ·There were no compelling or compassionate reasons for the visa applicant’s last departure from Australia and therefore she did not meet the criteria in cl.157.212(2) or any other criteria for the grant of a Subclass 157 Three Month Return Resident visa.

   [1] It is noted that the review applicant returned to Australia on 31 May 2019, remaining for nine days before returning to China on 9 June 2019 and has not returned to Australia since then.

10. Based on these findings, the delegate was not satisfied the visa applicant met the criteria for the grant of the visa and refused the application.

    Information to the Tribunal

11. The applicants’ agent provided submissions claiming that due to health concerns of the visa applicant’s mother, the applicants were required’ to remain in China to care for her. It was claimed that as former holders of permanent visas, the applicants had strong personal ties with Australia.

12. Further documents were provided to the Tribunal by the applicants including the following:

    ·Medical records of the visa applicant’s mother and brother;

    ·Bank statements and loan account; and

    ·Visa grant for the applicants’ son.

13. In a statement, the visa applicant made the following claims:

    ·After starting her grocery business on 1 May 2010 they ran the business for more than three years establishing themselves in the Heathcote region;

    ·She and her husband bought a property for $1.09 million and planned to live in Australia long-term;

    ·The landlord of the grocery business did not renew the lease and as her mother was unwell, they decided to sell the business and return to Shanghai to reassess their plans for living in Australia;

    ·As her mother’s condition deteriorated, she could not leave her mother alone in Shanghai and her plans to return to Australia were repeatedly postponed; and

    ·After five years of treatment, her mother’s condition improved which was why they then applied for the Return Resident visa.

14. A statement provided by the applicant’s son claimed that he had lived in Australia for six of the last nine years and wants to live permanently in Australia. As the only son of the applicants, he needed their support to run his business in Australia. He claimed that when he departed Australia in June 2019 he planned to return to Australia after Chinese New Year, however, due to the COVID-19 pandemic it became impossible for him to return and the costs of returning to Australia were prohibitive.

15. A statement from the visa applicant’s mother said that she had visited the applicants in Australia in 2013 and was feeling unwell. When she returned to China she was diagnosed with gastric signet ring cell carcinomas. She then had to rely upon the visa applicant for support.

16. The review applicant appeared before the Tribunal by video on 21 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

17. The review applicant was represented in relation to the review by his registered migration agent.

18. The review applicant had returned to China with his parents on 7 January 2018 and the only time he returned to Australia was on 31 May 2019, returning to China again on 9 June 2019. Over that period, the review applicant applied for the review of the decision to refuse the applications.

19. The review applicant said that he had been living primarily in China since January 2018. He was living in his parents’ home in Shanghai with his parents. He said that his parents owned two properties in Shanghai. He said that he was working five days a week in his father’s business as a hardware engineer since he returned to China. He said that he had planned to return to Australia, however, the travel restrictions caused by the COVID-19 pandemic prevented this. He said that when he was in Australia he was working in a supermarket doing stock inventory but he stopped working there in October 2017.

20. The review applicant said that his father’s business had been established for about three or four years. He said that his father operated another business before this for about 10 years and he had always been operating his own business for the last 15 years in China. The review applicant said that his mother had been in paid employment until November 2019 when she retired. He said that she was also working in his father’s business which is involved in computer software.

21. The review applicant was not able to provide any further details as to the operation of his mother’s grocery business or its profitability. He said that it closed down because the lease was not renewed. He said that apart from two weeks immediately after the home was purchased, his parents have not lived in their investment property in Australia.

22. The review applicant believed that the longest period his father had ever spent in Australia was about 12 or 13 days. He said that although his father never spent much time in Australia, he was hoping to live in Australia after he retired.

23. The Tribunal noted that as he had been living and working in China for two years prior to the COVID-19 travel restrictions, it appeared implausible that he now claims that he was planning to return to Australia at any time. The review applicant said that the job he had in Australia was not satisfactory and so he decided to live and work in China to develop a career pathway that he might follow when he returns to Australia.

24. The visa applicant gave evidence in support of the application. She was at the same location as the review applicant. Her evidence was more or less consistent with that of the review applicant. She said her husband had been involved in his own business in China for about 20 years. She said that she worked hard for a few years to get residence in Australia but had to return to China to look after her mother. She confirmed that she had been working full-time in her husband’s business.

25. The visa applicant said the ties that she has with Australia is that she owns a property in Australia. She said that she wanted to open another business in Australia as Australia has business opportunities. She said that her son would like to live in Australia and did not return to Australia earlier because he had to assist her in looking after her mother.

26. The visa applicant’s husband gave evidence in support of the application. He was not with the review applicant as he was attending a business conference in another city. He said that he was the biggest shareholder of his current business which he had been involved in for three years. Prior to that he had other business interests in China which he had been running for at least a decade. He said that he had no business interests in Australia.

27. When asked what ties he has with Australia, the visa applicant’s husband said that he always wanted to come to Australia after he had visited in 1996. He said that he wanted to investigate transferring the Australian tax dispatch system to China. After he was granted permanent residence, he said that he wanted to get a better understanding of what he could do in Australia by working in China and bring it to Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. At the time of application, the applicant must meet one of the alternative requirements set out in cl.155.212. These requirements essentially relate to the applicant being lawfully present in Australia for a certain time before the visa application, having substantial ties with Australia or being a member of the family unit of a person who meets these requirements.

30. In this case, the applicant is seeking to meet cl.155.212(3). The applicant does not claim to meet any of the other subclauses in cl.155.212. As the applicant was outside Australia at the time of application, the applicant cannot meet cl.155.212(3A).

    Does the applicant meet the substantial ties criterion?

31. Clause 155.212(3), as extracted in the attachment to this decision, requires that if the applicant is outside Australia at the time of application, the Tribunal must be satisfied that he or she has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

32. Additionally, the applicant must have a particular residency/citizenship status or history, and not have been absent from Australia for a prescribed period, unless there are compelling reasons for the absence.

    Does the applicant have substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia?

33. The only business interest the applicants have had in Australia is when the visa applicant was operating a grocery business. Although this business may have been in the joint names of the parties, there is nothing to indicate the visa applicant’s husband had any involvement with the business. The visa applicant’s husband has never spent any extended time in Australia, the longest time being 12 days, and although in her statement the visa applicant claims that she ran her grocery store with her husband, it does not appear that the visa applicant’s husband has ever resided in Australia or has ever been involved in any business activities. That business was in operation for only three years and, since the business was closed in 2013, the visa applicant has visited Australia on only three occasions for a total of 13 days.

34. The Tribunal does not accept that the visa applicant has any business or employment ties with Australia. Since 2013, she has not earned any income from any employment in Australia and has not been involved in any business activities. The visa applicant owns a home which is an investment property and is negatively geared. The Tribunal does not accept the fact that the visa applicant and her husband may have invested in real estate in Australia indicates that they have any business or employment ties in Australia.

35. There is little information of any cultural ties the applicant has with Australia. It is claimed that when she operated her business they “became familiar with local residents gradually, also established friendships with them”. There is no information which would indicate any continuing relationship with any cultural activities in Australia or that the visa applicant has any substantial cultural ties with Australia which are of benefit to Australia.

36. The visa applicant’s son has been granted a Return Resident visa and has the right to reside in Australia. That visa does not expire until March 2023. The visa applicant’s son departed with his parents when they last visited Australia for seven days on 7 January 2018. He has been living with them in China since then and has been working in his father’s business. The only time he returned to Australia was the nine days when he lodged the review applications with the Tribunal. He does not own any property in Australia and he has not provided any details of any continuing relationship with anyone in Australia. The visa applicant has no other relatives who reside in Australia and there is no information of any other close personal ties the visa applicant has in Australia.

37. Although the visa applicant’s son does have the right to reside in Australia, the Tribunal is not satisfied that the visa applicant’s relationship with him provides a substantial personal tie that is of benefit to Australia. The visa applicant’s son is living with the visa applicant in China. He works with his father in China. He owns no assets in Australia and has no continuing links with Australia. Although he claims that he has not returned to live in Australia due to the restrictions in international travel caused by the COVID-19 pandemic, he was living in China for two years with his parents prior to any travel restrictions being imposed. The Tribunal does not accept that it has been due to the travel restrictions caused by the COVID-19 pandemic which has prevented the visa applicant’s son from returning to live in Australia, but rather that he has established his life in China with his parents and is working in his father’s business.

38. Even accepting the visa applicant’s son was residing in Australia, the Tribunal does not accept that this would be a close personal tie. The visa applicant’s son is now over the age of 18 and is financially independent of the visa applicant. Although the visa applicant’s son currently works in his father’s business, it would be assumed that at his age he would be independent of his parents. There is nothing to indicate that the visa applicant’s son has any intellectual or other handicap which would mean that he continues to be dependent upon his parents. He is not a student or continuing any studies.

39. The Tribunal has considered all the circumstances of the visa applicant and her family. Apart from the period from April 2010 until September 2013, the visa applicant has spent little time in Australia. She has established her life, with her husband, in China where they hold the majority of their assets and the visa applicant’s husband has established his business interests. All their family currently live in China, including their son. They have no continuing business or employment interests in Australia with the only asset they hold being in a negatively geared investment property which is currently rented.

40. In all the circumstances, the Tribunal is not satisfied that the visa applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

1. Accordingly, the Tribunal is not satisfied that at the time of application the applicant had substantial business, cultural, employment or personal ties with Australia that are of benefit to Australia.

2. Given the findings above, the applicant does not meet cl.155.212(3).

3. There is no information before the Tribunal and no claim has been made that the visa applicant meets any alternative criteria for the grant of the visa.

4. For the reasons above, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa.

   DECISION

5. The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

   Hugh Sanderson
   Member

   
   

   ATTACHMENT – RELEVANT LAW

   Migration Regulations 1994

   Schedule 2, Part 155

   …

   155.212(1)   The applicant meets the requirements of subclause (2), (3), (3A) or (4).

   …

   (3)The applicant meets the requirements of this subclause if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia, and the applicant:

   (a)has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence, and the applicant:

   (i)holds a permanent visa; or

   (ii)last departed Australia as an Australian permanent resident; or

   (iii)last departed Australia as an Australian citizen, but has subsequently lost or renounced Australian citizenship; or

   (b)was an Australian citizen, or an Australian permanent resident, less than 10 years before the application, and has not been absent from Australia for a period of, or periods that total, more than 5 years in the period from the date that the applicant last departed Australia as an Australian citizen or Australian permanent resident to the date of the application, unless there are compelling reasons for the absence.