Huang (Migration)

[2024] AATA 658

Huang (Migration) [2024] AATA 658 (15 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sheng Huang

CASE NUMBER:  2303224

HOME AFFAIRS REFERENCE(S):          BCC2022/3103860

MEMBER:Anne Grant

DATE:15 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 15 March 2024 at 12:18pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – lengthy stay in Australia – multiple previous temporary visas – compliant visa history – marriage to an Australian citizen – impact of the COVID19 pandemic – tourism plans in Eastern states – family commitments in China – visa as requested would have expired already – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 15 February 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 8 August 2022. 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 (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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because they were not satisfied that the visa applicant genuinely intended to stay temporarily in Australia as required by cl 600.211.   

5. The applicant appeared before the Tribunal on 6 March 2024 to give evidence and present arguments.  As the applicant is located in Perth and the Tribunal member in Melbourne, the applicant was invited to a video hearing using the Microsoft Teams application.  He later notified the Tribunal that he was unable to attend by Teams because he lacked a computer or phone which would enable him to participate and requested that the hearing be conducted in Perth at the Tribunal’s registry.   Arrangements were made to enable the applicant to attend the Perth registry and give evidence and present arguments from a hearing room, by video connection to Melbourne. The hearing proceeded as planned with no technical difficulties. The Tribunal member participated from Melbourne using the Microsoft Teams application, as did the interpreter.  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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In addition to the documents included in the departmental file made available to the Tribunal, the applicant has provided extensive documents to the Tribunal in the process of his application for review of the delegate’s decision.  Subsequent to the hearing, the applicant has also submitted additional information and regard has been had to the information in those documents, as discussed below. 

8. The issue in this case is whether cl 600.211 is met, which requires a decision maker 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 stated in his application for the visa that he seeks the visa for the purposes of travelling to the Eastern states of Australia for tourism and to visit other potential study institutions which he had been unable to visit during border closures in previous years. Tourism is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must have regard to 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)).

11. Departmental records reflect that the visa applicant has remained in Australia continuously since first arriving on a student visa in 2013.  In that time, he has held the following visas: 

    ·     24 November 2013 arrived in Australia Student Visa, (subclass 573) ceased 15 March 2016

    ·     11 August 2016 Bridging visa A granted

    ·     4 March 2016 Granted further subclass 573 visa ceased 15 August 2016

    ·     11 August 2016 Bridging visa A granted

    ·     24 October 2016 Temporary Graduate visa (subclass 485) granted ceased 20 October 2018

    ·     19 October 2018 Bridging visa granted

    ·     20 October 2018 Student visa (subclass 500) granted ceased 15 September 2020

    ·     12 September 2020 bridging visa granted

    ·     20 November 2020 Visitor visa (subclass 600) granted (6 months)

    ·     17 May 2021 Bridging visa granted

    ·     27 May 2021 Visitor visa (subclass 600) granted (6 months)

    ·     24 November 2021 Bridging visa granted.

    ·     10 February 2022 Visitor Visa (subclass 600) granted (6 months).

    ·     9 August 2022 BV granted

    ·     8 August 2022 applied for visitor visa herein. 

    ·     15 February 2023 delegate’s decision to refuse visa made.

12. The applicant currently holds a bridging visa.  On the basis of the information before me, I note that the visa applicant has always held a visa in the period he has been in Australia since 2013, and there is no suggestion in the Departmental file that he has breached the conditions of any of the numerous visas he has held. 

13. I accept that the visa applicant has complied substantially with the conditions of all visas he has held.  The applicant’s compliant visa history will be given some favourable weight in assessing his genuine intention to stay temporarily in Australia.    

14. 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(2)):

    ·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.

15. At hearing, the applicant stated that he does not intend to work whilst on a visitor visa.  He also stated that he does not intend to study whilst on a visitor visa. I accept this evidence.

16. With regard to not remaining after the end of the permitted stay, (condition 8531) the applicant’s evidence suggested that he would not depart unless granted a further 12 month stay and having completed his planned travel.  He also stated that he would like a further one to two years in Australia, claiming that he would then return to China.  I found the applicant’s evidence about not remaining in Australia after the end of a permitted stay to be unconvincing.   I have doubts that the visa applicant would depart Australia at the end of a permitted stay, particularly if a visa were granted which he considered to be of insufficient length for him to complete his entire travel itinerary.  I have had regard to the applicant’s compliant visa history, but I am ultimately not satisfied from his evidence and submissions that he intends to comply with condition 8531.

17. With regard to condition 8503, when asked about applying for a substantive visa, such as a partner visa, the applicant stated that he was not aware of any condition such as 8503 (noted above), and appeared surprised by the suggestion that it might apply to the visitor visa if it is granted.  He referred to his submissions and evidence about having married in late 2023 and his claim that ‘requiring him to depart the country would cause his marriage to be unfairly damaged and destroyed’.  When asked if it was his plan to apply for a partner visa whilst onshore, the applicant stated that currently it is not his intention to apply for a partner visa. 

18. I found the applicant’s evidence on this point was not convincing.  The applicant confirmed that he lives with his wife in a property they rent, that he is supported by his savings and money he receives from his mother, and that he is financially self-sufficient.  At hearing, the applicant seemed reluctant to discuss his marriage and did not provide significant  oral evidence about his marriage, apart from emphasising as noted in his written submissions that his wife would be unable to live in China as an Australian citizen. 

19. I am not satisfied, based on the applicant’s evidence, that the visa applicant would comply with condition 8503 if it were imposed.  His marriage in October 2023 to an Australian citizen strongly suggests an intention to apply for a partner visa and remain permanently in Australia. 

    Does the applicant have a genuine intention to stay temporarily for the purposes of the visa?

20. At the time of applying for the visa, (August 2022) the applicant requested a one year visitor visa (which would have been his fourth visitor visa) and stated that “The applicant would like to travel to the Eastern States and look around a few Universities regarding his further study.  He couldn’t do this as COVID cases have risen dramatically in WA and Eastern States after the border opened.”   In his supporting statement the applicant notes that WA opened its’ border in March 2022, and refers to high levels of COVID19 infections which he says ‘scared him’ and he held back his travel plans. He claimed that he was considering whether he would keep studying further in Australia.  The applicant provided to the department a detailed itinerary listing multiple and extensive destinations which he stated that he wanted to visit along the Eastern seaboard over a twelve month period and gave a proposed departure date of 15 August 2023.

21. In the accompanying statement the applicant also refers to COVID19 cases rising in China, making travels between the countries risky and difficult, with flights being limited and expensive.  He claims passengers are put at high risk because of stop offs and flight changeovers in various countries.  He states ‘I would prefer to keep staying in Australia to be safe and to avoid any unnecessary risk of the COVID infection.’  He adds that he will travel to the eastern states when ‘the amount of COVID cases drops.’  At hearing the applicant continued to refer to the COVID19 pandemic as explaining why he had not returned to China and not undertaken his planned travel within Australia.

22. At time of application, the applicant provided a Commonwealth Bank of Australia statement dated 22 July 2022 showing that he had savings of $23,579; a statement of support from a friend Ms W offering him accommodation in Mullaloo, Western Australia; required police checks in both China and Australia, and information about requisite health checks.    

23. The delegate did not interview the applicant and decided on 15 February 2023 to refuse the visa, because they were not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purposes of the visa.  The delegate acknowledged the applicant may have been affected by the COVID-19 pandemic, and this may have impacted their ability to depart Australia in the past, but found that COVID-19 no longer prevents the applicant from departing Australia given the increased availability of international flights and reopening of international borders.

24. The applicant lodged an application for review with the Tribunal on 7 March 2023.  As noted above, on 9 February 2024 the applicant was invited to attend a hearing at the tribunal on 6 March 2024.

25. On 26 February 2024, the applicant submitted a written statement and supporting evidence as follows:

    Hello! I am Sheng HUANG ( Case No.2303224’ ), from China ( please see Evidence 1[1] ). At present, I would like to write down a statement, explaining why I fully disagree with the refusal decision made by Matias from the Department of Home Affairs on the 15th of February 2023 (namely Evidence 2[2]), which has rejected my application for a One–year Visitor ( Tourist ) (subclass 600) visa totally unreasonably.

    [1] Evidence 1 was the applicant’s passport showing him to be a citizen of China.

    [2] Evidence 2 was the delegate’s decision statement.

    Here, my specific appeal reasons and the relevant evidences are suggested
    in details as follows:

    Reason 1 –– The Real Situations of COVID Pandemic
    It is well known that COVID cases have dramatically risen and rapidly expanded, and COVID infection has already turned into an obvious normalization and has gradually become out of control during these days, regardless of within China, or Australia, or other Asian countries (especially in China since December 2022 ).

    According to Evidence 3[3], until the end of 2023, the number of total reported confirmed COVID cases in China had reached ‘99,321,637’ while the total number of reported confirmed COVID deaths there had been ‘121,880’, but it can also be proved by Evidence 4 that WHO has aready accused China of Underreporting the severity of its COVID outbreak & the real number of its COVID deaths. Evidence 3 could also let you know the truth that both the new COVID cases’ number and the confirmed COVID cases’ number got a dramatical rise within China around the end of 2022 / the start of 2023 ( not least its new cases’ amount, even reaching the terrifying ‘7 Million’ ), whilst you would find out this truth’s related reason in Evidence 4, which is ‘On December 8 (2022), Xi (Jinping) decided to lift all Covid controls in China with no preparation’. Via Evidence 5, Evidence 6, and Evidence 7, you are able to find that by the end of 2023, there had been more than 4.2 million daily new COVID cases in China and about 1.6 million people had died of COVID pandemic within China, and COVID pandemic in China still remains in an increasing trend recently ( no matter of daily cases or daily deaths ).

    [3] Evidence 3, 4, 5, 6 and 7 were various copies of WHO, news and other organisation reports about the state of COVID19 pandemic in China during 2022 and 2023.

    Furthermore, Evidences 8 – 14[4] can intuitively let you understand how serious the real situation of COVID pandemic within China these days has become. Most people wear masks at the public places, some of whom even wear several masks together per person at a time; and the random COVID tests are universal on the streets; and crowds of COVID patients stay in hospitals; and so forth. In short, simply as what Evidence 8 has pointed out, COVID haunts China again, and China witnesses a COVID–19 comeback! What is more, pursuant to Evidences 15 – 17[5], my own Father Passed Away in China at the end of January 2023 ( i.e. Less than 3 weeks before the Department of Home Affairs rejected my that above–mentioned visa application), due to his severe COVID infection then, which is an extremely typical example of COVID pandemic’s seriousness within China and also had just strongly warned me Not to go back to China then. Please think about that: that visa refusal decision made by the Department of Home Affairs, mentioned above, had attempted to order me to return to China precisely at the rather Unsafe beginning of 2023, so how Irresponsible and Inhumane their refusal decision has been!!

    [4] Evidence 8 – 14 are photographs showing people wearing masks and undergoing testing in China.

    [5] Evidence 15 – 17 is medical and death related evidence establishing tht the visa applicant’s father (aged 83) died on 27 January 2023 after approximately four weeks in hospital from covid related complications.

    Meanwhile, it is demonstrated by Evidence 18[6] fairly clearly that: after Western Australia opened its border during March 2022, the number of monthly COVID deaths within Australia had increased sharply from only 425 right up to 1,129 in August 2022 when I lodged my that application for the Visitor visa, and this increment is way bigger than the ones of same periods during 2020 & 2021 when WA’s border was locked up. Up until the 23rd of February 2024 ( Friday ), the number of daily new COVID cases across the entire Australia, had still reached 1,484 ( displayed in Evidence 19 ). This exactly occurred after the reopening of Australian state borders, so in this case, it is not very surprising that my mother–in–law was infected by COVID in Australia during February 2024 ( shown in Evidence 20). Nonetheless, given the truly effective COVID vaccinations in Australia, I believe that the relevant situation here will be better in the near future. At least, here has become far safer than China.

    [6] Evidence 18, 19 and 20 are published information on the covid pandemic in Australia.

    Besides, currently every international flight from Perth to my home country – China, needs at least one transfer flight via some Southeast Asian countries such as Singapore and Malaysia, whose numbers of the reported COVID cases ( i.e. ‘48.6k’ & ‘45.2k’ respectively, as per the official statistics from WHO ) are still globally ranking 2nd and 3rd respectively even just during this month ( i.e. February 2024 ) < please see Evidence 21[7] >, so the COVID situation there will surely put the passengers ( on the international flights & the transfer flights, including me ) at high risks.

    [7] Evidence 21 is published information on the covid pandemic across Southeast Asia.

    Therefore, obviously it is quite dangerous for me to depart from Australia and go back to China since December 2022, and in other words, Matias’ claim on Page 2 of Decision Record of Evidence 2, which is the so–called ‘COVID–19 no longer prevents the applicant (i.e. Sheng HUANG) from departing Australia (since February 2023)’, is Not true at all! Moreover, that refusal decision made by Matias on behalf of the Department of Home Affairs, will absolutely inhumanly put me at the high risk of COVID infection. ( Please Note That: actually, Matias’ this claim is one of his / her two reasons for rejecting my visa application. )

    Reason 2 –– My Genuine Purposes of Tourist Activities & Temporary
    Stay in Australia
    Through Evidence 22[8], it is pretty easy to see that I had fully introduced all my planned itinerary details in the eastern states of Australia ( containing my specific planned date of flying back to China – ‘the 15th of August 2023’ ) to the Department of Home Affairs when I started to apply for that one–year visitor ( Tourist ) (subclass 600) visa during August 2022. Unfortunately, my this visa application was rejected by the Department of Home Affairs half a year later – on the 15th of February 2023. As a consequence of this, by just holding a Bridging A visa with an Uncertain Length of stay in Australia, which is Evidence 23,[9] I have been unable to make my expected itinerary come true, from then on.

    [8] Evidence 22 is the letter the applicant submitted to the Department dated 2 August 2022 including his travel and departure plans at time of application.

    [9] Evidence 23 is the applicant’s bridging visa grant letter on 9 August 2022 with a cease date of August 2022.

    To be honest, I did set out one of my purposes to travel around the eastern states of Australia in Evidence 22, which is ‘to look around a few of local universities there to decide if I would further study in Australia’. However, the key point of this is: if I could be granted that one–year visitor visa then, I would utilize it to check the local universities in the eastern state to decide whether I would further study there or not, rather than straight away using this visa to study at the local university there, and in other words, even though I determine to further study in east Australia then, I may go back to China first, and apply for a student visa with a greater stay length offshore then, trying to get back to Australia later. How can I utilise a one–year visitor visa to pursue a Uni degree which usually takes a few of years??!! Additionally, to visit the
    local universities in east Australia, same with going shopping and looking around museums, is of course one part of tourist activities, and no one can deny this ( including Matias )!!

    On top of that, I had already reported my that planned departure date to the Department of Home Affairs very explicitly in Evidence 22, which is ‘the 15th of August 2023’ and only a year behind the date when I submitted my that Visitor visa application, so, How could Matias  ignore this important information and further groundlessly suspect me of ‘Not intending to stay Temporarily in Australia’ on Page 2 of Decision Record of Evidence 2 ?! Thereby, Matias’ another reason for rejecting my visa application, which is the so–called ‘I am not satisfied that the applicant (i.e. Sheng HUANG) genuinely intends to stay temporarily in Australia for the purposes of tourist activities’, is just his/her unprofessional excuse!!

    Reason 3 –– My Marriage with A Local Australian Lady

    Evidence 24[10] certifies that I have been married with a local Australian lady within WA just since the end of October 2023, and based on Evidence 25 as well as Evidence 26[11], you could roughly see that my Australian wife cannot live in China for a long time at all ( mainly owing to the language barrier ). Thus, once I am forced to leave from Australia alone soon and further stay in China ( without my wife ) for an uncertain period, our marriage will be damaged, even destroyed, quite unfairly then!!

    Reason 4 –– My Current Volunteer Work in Australian Community
    You know, as a Chinese tourist with the great Respect and warm Love to the Australian society, I have kindly volunteered my time to assist with the cleaning work of a local church within Perth since 2022 ( proved in Evidence 27[12]), which is my persistent contribution to the Australian community. Hence, if I am required to move off Australia shortly and stay away from Australia for an unknown time, it will not only be a loss to this local Australian church, but is also apparently unfair to me!

    All in all, both of Matias’ those two above–mentioned reasons ( in Evidence 2 ) for rejecting my Visitor visa application, are completely fallacious, and furthermore, that refusal decision from Matias ( delegated by the Department of Home Affairs ) is so very Incorrect,  irresponsible, Inhumane, and Unfair to me, which therefore I sincerely wish your AAT to cancel immediately!! In addition, I also hope that the Department of Home Affairs can respect the basic facts and common sense, and thus grant me that One–year Visitor ( Tourist ) (subclass 600) visa as soon as possible, which will let me enjoy the time and trips within Australia – this beautiful country.

    In closing, thanks heaps to you for taking your time to read my this written

    appeal statement and all my those evidences! 

    [10] Evidence 24 is a marriage certificate outlining the applicant’s marriage to an Australian citizen on 28 October 2023.

    [11] Evidence 25 and 26 are copies of the applicant’s wife’s Australian passport.

    [12] Evidence 27 is a letter from the applicant’s church confirming that he is a member of the church community and provides some volunteer services to the church.

1. On 4 March 2024, the applicant sent in an updated letter from his friend Ms W confirming her continuing willingness to provide him with accommodation; and his university certificates in Engineering and Business Administration from Edith Cowan University in Western Australia.

2. On 5 March 2024 the applicant sent in further news reports and published articles about the state of the Covid19 pandemic in China over several years,  an updated bank statement showing that he now had a balance of $23,579.10, and a further copy of the applicant’s Chinese household register.

3. The hearing was conducted on 6 March 2024.  The applicant gave evidence generally along the lines of his written submissions, arguing that he had still not undertaken his planned eastern seaboard travel and believed that he should be granted the visa to do so.  He gave as his reasons for not having completed that travel the pandemic situation in Australia, the pandemic situation in China and uncertainty about his visa status and tribunal application.  He also referred to his father’s death in January 2023 and his mother’s need for his support given her widowhood and advanced age.  After taking evidence from the applicant, I let him know that I had some concerns that he genuinely intended to stay temporarily in Australia because most of his arguments were reasons why he would not or could not depart Australia, and because, despite his own stated intention to depart on 23 March 2023 and his claim that his mother needed his support, he had still not departed Australia.  He then stated that he would ‘definitely’ return to China in about one or two years.  He reiterated that his mother is aged 76, and according to his own evidence, is living alone with limited support after her husband’s death in January 2023. I found his claims that his mother’s need for his support was a strong incentive for him to return to China unconvincing given his conduct in remaining in Australia for the last eighteen months, and his stated desire to remain in Australia for a further one to two years.

4. Further, I noted that his marriage to an Australian woman was another factor which strongly suggested that he had an intention to stay in Australia permanently and that he was using the visitor visa to extend his stay in the country for as long as possible and perhaps to enable him to apply for a permanent residence visa.    I observed that despite already staying in Australia longer than he could have done had the visa been actually granted, he had not undertaken the travel he said he wanted to do and neither had he returned to his elderly mother.

5. In response, the visa applicant said that he would definitely return home and just wanted a temporary stay of between one and two years.  He gave as reasons for his not undertaking the travel referred to in his itinerary, the risks of travelling with covid still active in the community, uncertainty about his bridging visa and about the AAT hearing. 

6. On 8 March 2024, the applicant sent in a further submission.  It is as follows: 

   Hello! I am the applicant Sheng HUANG, whose case No. is ‘2303224’. At
   first, thanks a lot for offering me such an opportunity to give evidence and
   present arguments to you relating with my case today.

   Following today’s hearing conducted via the video conference, I still have
   several crucial facts to explain to you more explicitly at the moment, which are
   in details as follows:

   1. My basic reason for mentioning COVID pandemic in my arguments is:
   officer Matias ( delegated by the Department of Home Affairs ) has claimed that COVID–19 no longer prevents me from departing Australia and going back to China since February 2023, and further utilized this as an excuse to reject my that One–year visitor visa application unreasonably on the 15th of February 2023 ( please see my Evidence 2 submitted to AAT already ).

   In effect, many of my evidences submitted to AAT earlier, are able to obviously and sufficiently confirm a fundamental truth that it was exactly the COVID’s Peak time within China at the beginning of 2023 ( including my father’s Death ). Therefore, it is extremely dangerous for me to depart from Australia and go back to China at That time!

   I did present COVID pandemic in my arguments, but it Never means that I don’t wish to go back to China in the near future or I want to stay in Australia as long as I can. In other words, the fact that I stated COVID pandemic in my arguments, does Not weaken my own genuine intention to stay temporarily in Australia at all!

   2. On the 24th of November 2013 (Sunday), I entered Australia as the holder of a Student visa. After that, I had spent most time of the following 6 years ( up to the middle of 2020 ) on my hard studies at Edith Cowan University (WA), taking two Master degrees from this university ( proved by my Evidence 31 & Evidence 32 ), and as a consequence, I didn’t have time to look around other places within Australia during my initial six years at this country.

   Hence, I had started to apply for the short–term Visitor visa (subclass 600) since the second half of 2020, and I also had been granted the short–term visitor visa successfully for a few times in a row (up until the middle of 2022 ).

   When I was holding these visitor visas ( 2020 – 2022 ), I did travel to many remote regions within WA, such as Rottnest Island, Margaret River, Bunbury, Esperance, and so on ( intuitively shown by Evidences 40 – 54 ), carrying out my purpose of genuine tourist activities and strictly complying with all the relevant visitor visa conditions. Meanwhile, due to COVID–19 pandemic across the globe then ( 2020 – 2022 ), Australia’s borders were locked up, and as a result, I couldn’t travel to the eastern states of Australia at all, or get a ticket back to China then. This reality directly caused me to apply for a One–year visitor visa ( to travel in eastern
   Australia later ) during August 2022.

   3. I know that it has been one year and a half since August 2022 when I lodged my that one–year visitor visa application. Nonetheless, the key point is: Since then ( i.e. August 2022 ), I have never been granted this visitor visa, and meanwhile, I have been always holding a Bridging A visa with an Uncertain length of stay in Australia, waiting for the outcome of my that visitor visa application earlier and waiting for the proceedings of my this review case at AAT later ( which is Not my problem at all ), so I cannot make my that expected 10–month itinerary ( introduced in my Evidence
   22 ) come true, since August 2022, even if I have strictly complied with this
   bridging visa’s conditions (as usual).

   That is to say, as my current Bridging A visa may expire at any time since August 2022, I have not been sure at all whether I have ample time to carry out my that travel plan in eastern Australia when just holding a bridging visa.

   On the other hand, I have the reason to believe that if the Department of Home Affairs granted me that one–year visitor visa in the beginning of 2023, rather than rejecting my visa application then, I would have finished all my itinerary in eastern Australia already and would have been within China at the moment.

   4. My Evidence 38 for this case, has verified quite clearly that my mother in China is getting aged now, who is 76 years old, and I am from a single– child family there, so it’s absolutely my own 100% responsibility to return to China to look after her in the near future. Even simply based on this, it is No point and also fully Impossible for me to stay within Australia ‘as long as I can’!!

   5. Although I have been away from China for more than one decade, with those two Master degrees I had obtained in Australia ( whose specialities have become more popular in China ), with the support from my relatives & old mates in China, and without any language barrier or culture shock, I firmly believe that I could get a satisfying job comparatively soon in China after I return there in the near future.

   6. I hope the Department of Home Affairs can realise their those apparent & serious mistakes while dealing with my that one–year visitor visa application, correct their that wrong refusal decision on my visitor visa application, and further will grant me that One–year visitor visa shortly, letting me have an appropriate length of time ( i.e. 1 year ) to carry out my planned trips within eastern Australia.

   Once I complete my travel in the eastern states of Australia with this One– year visitor visa, I would leave from Australia and return to China Immediately!!

7. Accompanying the submission were several photographs showing the applicant at tourism destinations in Western Australia.   On 12 March the applicant also sent in a bank statement showing his latest balance to be $10,555.

8. I have noted that the applicant believes he could find work in China on his return.     

9. Although the applicant repeatedly asserts that he will leave Australia (when he is ready to do so and considers it safe), those statements of intention are conditional. He states that he will do so after a further 12 month (or two year) stay, which he claims is needed so he can realise his travel dreams, despite a complete failure to pursue even a part of his proposed itinerary since August 2022.  With the greatest respect to the applicant, I do not accept as genuine or plausible his reasons for not using the time he has had available to him over the past 18 months to complete those travel plans and return home, and this is particularly so taking into consideration his mother’s need for support after his father’s death and the suggestion that this provides him with an incentive to return home ‘soon’.  

10. I also give significant weight to the applicant’s continuing claim to fear travelling to and living in China due to the pandemic as suggesting that he has no current intention or desire to do so for the foreseeable future.  I consider his submissions are designed to exaggerate the ongoing risks given that travel to and from China has been possible since 2022.  I acknowledge that his father succumbed to COVID19 complications in early 2023 and that this has had a significant impact on the applicant’s fear of the disease, but do not accept that the pandemic itself provides an ongoing justification for his failure to return to China or that it is unsafe for him to do so.  Of course in considering this visa, the applicant’s safety in travel to and living in China is not a factor relevant to the grant of the visa, except in assessing his genuine intention to stay temporarily in Australia. The purpose of a visitor visa is not ‘to keep an applicant safe’ but to enable a short temporary stay for tourism purposes. 

11. The applicant continues to be financially supported by his mother and I find that are no financial incentives for him to return to China. I do not accept that possible employment in China is a strong incentive for him to return.

12. I consider that there are significantly more incentives for the applicant to stay indefinitely (and permanently) in Australia than those which provide him with an incentive to depart Australia at the end of the visa.

13. I have given regard to the applicant’s visa history and history of compliance with the conditions of the visas.  Even though he has been compliant with the conditions of visas held, he has not departed at the end of any of the multiple substantive and temporary visas he has held.  He has reapplied for a new visa on every occasion that other temporary visas have ceased.  I consider that the applicant’s uninterrupted residence in Australia since his first arrival, his submissions and evidence overall, and his failure to return to China at any stage, even when free to do so, strongly suggest to me that he had no intention of returning permanently to his home country, even prior to his marriage.   

14. I have considered the applicant’s arguments at hearing and in his written submissions and his supporting evidence, but I do not accept that he has a genuine intention to stay temporarily in Australia for the reasons he claims.  I consider that he is using the visitor visa application to extend his residence in Australia beyond a period which could reasonably be considered to be a ‘temporary stay’.  I do not accept his evidence that his stated intention is to depart Australia after a further one or two years, or that he has a genuine intention to depart Australia at all.  

15. 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

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

    Anne Grant
    Member