Huang (Migration)

[2023] AATA 1055

Huang (Migration) [2023] AATA 1055 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jianfeng Huang

VISA APPLICANT:  Mr Jinxian Huang

REPRESENTATIVE:  Ms Veronica Fu (MARN: 9903199)

CASE NUMBER:  2209860

HOME AFFAIRS REFERENCE(S):          BCC2022/114560

MEMBER:Linda Holub

DATE:20 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 20 April 2023 at 4:05pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – lengthy period of unlawful residence – illegal employment in Australia – application for a permanent visa – employment in home country – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 28 April 2022 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 1 February 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 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 (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 am not satisfied that the applicant genuinely intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 4 April 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video through the Microsoft Teams application. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter, the fact that the case was constituted to a Sydney based member while the review applicant was based in Melbourne 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 expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. The Tribunal also received oral evidence from the review applicant’s wife and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

2. The review applicant was represented in relation to the review. The representative also participated in the hearing.

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

BACKGROUND

1. The review applicant is the son of the visa applicant.

10) The review applicant was born in 1993 and is an Australian citizen by grant. He is married. Department records indicate that he first arrived in Australia in June 2011 as a dependant applicant on a Partner (subclass 309) visa. In March 2013 he was granted a Partner (subclass 100) visa as a dependant applicant. He became an Australian citizen by grant in January 2016.

11) The visa applicant is a Chinese citizen born in 1964 in Taishan, Guangdong, China. He is divorced.

CONSIDERATION OF CLAIMS AND EVIDENCE

12) 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.

13) In his visa application, the visa applicant stated he was seeking to travel to Australia for a family visit of up to 12 months. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

14) 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)).

15) Department records indicate that the visa applicant first travelled to Australia in October 2006 as a holder of a Business (Short stay) (subclass 456) visa that ceased 6 January 2007. He remained in Australia as an unlawful non-citizen until July 2018 when he was granted a Bridging visa E. He remained onshore on a series of Bridging E visas until his departure in August 2018.

16) In October 2018 the visa applicant lodged an application for a Parent / Contributory Parent (subclass 143) visa listing the review applicant as the sponsor. That application is being considered by the Department. The visa applicant provided to the Department a copy of the and the entry/exit pages of his passport showing evidence of previous international travel, including a visa to enter Malaysia issued 29 April 2019.

1. 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 600.612):

   ·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.

Evidence provided by review applicant

18) The review applicant confirmed that he is an Australian citizen and that he came to Australia in 2011. He stated he came with his mother who got to know a gentleman in Australia. She only told him there was an uncle who helped. According to his evidence, he does not know what visa he was granted when he came to Australia nor when he was granted citizenship and

19) The review applicant stated that he has no siblings. He doesn’t know when his parents divorced as he never asked them. He stated that he thought that previously they were not very happy with each other. His father has not re-partnered, and his mother is single.

20) The review applicant runs his own business. He explained that he is involved in electrical maintenance for homes, businesses and offices and he takes orders from large projects. He employs three staff and in the 2022 financial year the company’s revenue was $400,000. The review applicant stated that he expects it will be greater this year. The review applicant stated that his wife is a loan assistant. He doesn’t know the name of the company she works for, but she works full-time

21) The applicant stated that the current residence he and his wife live in belongs to his mother and in June he and his wife are moving into their own purchased home.

22) When asked if his father has previously been to Australia, the review applicant stated that when he was very young, he was here. The review applicant stated that he does not know how long he came to Australia for but stated that the visa applicant remained here for more than 10 years. When asked what the visa applicant was doing in Australia, he stated that he did not know how to return. The review applicant stated that after he met his father, he discovered that his father had lost his passport, so he asked the migration representative to help. He stated that his father applied for a temporary visa in Melbourne. I explained that obtaining a temporary visa is unrelated to his passport issue. In response he stated that the visa applicant also went to the Chinese consulate and got a passport.

23) The review applicant stated that while he was previously in Australia, the visa applicant worked casually.

24) The review applicant acknowledged that the visa applicant was unlawful for approximately 10 years. He stated it was because he did not know how to apply to return to China and he didn’t dare ask anyone because he is timid. I explained to the review applicant that breaking immigration laws is a serious issue. He responded that he realised the seriousness, once he found out, and encouraged the visa applicant to return to China and that’s why he engaged the representative. The review applicant stated that he takes Australian laws seriously.

25) When asked why he did not make any reference to his father’s past migration record in his letter to the Department, he responded that at the time he prepared the letter himself and did not know what to say. I referred to the fact that his father also made no reference to his migration history in the statement I had received just before the hearing. I pointed out that he canvassed various other topics but did not refer to being unlawful for 10 years. He responded that the visa applicant did refer to it but when asked to point me to the relevant part of his father’s statement, he acknowledged there was no reference in the statement by the visa applicant to his migration history.

26) I explained to the review applicant that timidity is not a reason to remain in Australia unlawfully. I put it to him that the visa applicant could have engaged a migration representative. I was told that the visa applicant does not speak English and that he had a difficult life in Australia and didn’t know who to ask. I put it to him that if he had asked around, his friends may have been able to direct him to a Cantonese speaking migration agent. The review applicant claimed that the visa applicant was afraid to talk to his friends about his identity and even after he met the visa applicant, he realised he didn’t have many friends. The review applicant stated that after learned about the situation, he found his current agent and helped the visa applicant to return to China the appropriate way.

27) The review applicant told the Tribunal that the visa applicant’s current passport was issued in 2018 after he returned to China. The consulate in Melbourne issued a temporary travel document. I asked to be provided with a copy of it.

28) When asked if the visa applicant had applied for a Protection visa at any time, the review applicant stated that he has no idea what that is and when explained to him, he responded in the negative.

Evidence provided by the visa applicant

29) The visa applicant stated that he came to Australia on 6 October 2006 and departed on 28 August 2018. He stated that he was lawful for about three months and was unlawful for the remainder of the time. He stated that he lost his passport. He stated that he went to the Chinese Consulate in Melbourne for a temporary passport. He stated after talking to his son, they looked for a lawyer and spoke to the Consulate. He stated that he found himself in that position because he does not speak English.

30) I referred to the claim in his statement provided on the morning of the hearing that he has savings of $200,000. Following a discussion of his salary and how much he is able to save on a monthly basis, I put it to him that I was puzzled how he managed to save that much money. He responded that it was the money he earned in Australia. He confirmed he worked in Australia illegally. He acknowledged he broke employment and migration laws.

31) The visa applicant stated that he divorced in about 2009-2010.

32) The visa applicant stated that he would like to come to Australia because he hasn’t seen his son since 2018 and had not met his daughter-in-law and grandchild and wants to see them. He stated that he would like to stay for about four weeks. He acknowledged he has applied for a Contributory Parent (subclass 143) visa and stated that would become legal and can travel here to visit his son.

33) In relation to incentives for him to return to China, the visa applicant stated that he will return to China, because he has to return to his job after his holiday leave. Asked if there are any other reasons, he responded in the negative and stated that he will definitely return to China.

Evidence provided by the review applicant’s wife

34) The witness was initially unsure of what evidence to provide. I explained that I must assess whether the visa applicant intends a genuine temporary visit to Australia.

35) The review applicant’s wife explained that she has not met her father-in-law officially face to face. She stated they only communicate via Facetime, so she wants to meet him as her father-in-law and since she has given birth to her daughter three months ago, her daughter has not met her grandfather. She stated that she assumes the review applicant misses his father because he hasn’t seen him for a long time. When asked if there was anything further she wanted to say, she responded that she had nothing to add.

Oral submissions - migration representative

36) The migration representative urged me to take into account all the factors in relation to the application and to give weight to those factors, especially the visa applicant’s employment situation in China and that most of his siblings remain in China. She stated that she understands the Tribunal’s concerns about the visa applicant’s migration history and that he has since realised he did not comply with the law and took action. She stated that it is now five years since 2018 and she feels that the fact that he has been banned for that long means he has already been punished. When asked what she meant about being banned, particularly in the light of the length of time travel restrictions were in place due to the Covid-19 pandemic. She responded that she is not aware of the number of people who were granted visas during that period, but the refusal decision was one reason he could not come to Australia. She stated that she feels that now that the visa applicant has applied for the Parent visa, he understands that he must always comply with the conditions of the Visitor visa and stated that it is hard for the review applicant to be separated from his father.  

37) Before concluding the hearing, the review applicant stated that he wishes the Tribunal would make a positive decision in favour of the visa applicant. He stated he is unable to take time from his small business and his daughter is unable to travel by plane. When asked if she has a condition that prevent her from flying, he responded she does not but that she cries a lot. He stated he will monitor his father.

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

39) Following the hearing the review applicant provided a copy of the visa applicant’s travel document which was issued by the Consulate General of the People’s Republic of China in Melbourne in August 2018.

Findings

40) Having considered all the evidence, the Tribunal accepts that the visa applicant wishes to come to Australia for the purpose of visiting his son and his family. The Tribunal accepts that the visa applicant has sufficient funds to cover the cost of the trip and that he will stay with the review applicant. The Tribunal accepts that the visa applicant has no intention of studying or undertaking any training in Australia.

41) The Tribunal accepts that the visa applicant's primary motive for applying for this visa is to visit his son and to meet his daughter-in-law and his grandson However, the Tribunal is not satisfied that this is his only intention in applying for this visa.

42) The Tribunal also had regard to the fact that neither the review applicant nor the visa applicant was able to provide convincing evidence regarding the incentives for the applicant to return to China at the end of his permitted stay, although the migration representative made reference to a number of factors. Nevertheless, the Tribunal is of the view that the incentives for the visa applicant to remain in Australia after the end of his permitted stay far outweigh his incentives to return to China. Despite the assurances given by the review applicant and the visa applicant that he will comply with the conditions of his Visitor visa, the Tribunal is not satisfied that the visa applicant will not seek to change his immigration status once he comes to Australia. The Tribunal has had regard to the fact that he previously spent around ten years in Australia unlawfully and that he worked illegally during that time. The explanations for his unlawful status did not satisfy the Tribunal. A person’s timidity is not a reasonable reason to avoid checking on and rectifying his status. Neither is his lack of English-speaking skills as there are a variety of services available to assist non-English speakers.

43) The Tribunal also holds concerns that the visa applicant may seek to work in Australia again, given he did so in the past, even though he did so illegally, by his own admission.

44) The Tribunal has considered whether his application for a Parent visa provides sufficient incentive for him to comply with his visa conditions. However, I am not convinced this is the case, given his closest family members all reside in Australia.

45) The Tribunal has considered whether the lodging of a security bond will ensure the visa applicant's compliance with the conditions of his visa and is not satisfied that it will do so. Therefore, the Tribunal finds that the visa applicant does not meet the requirements of cl.600.211.

46) 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.

Timeliness of pre-hearing submissions

47) At the commencement of the hearing, I noted that a submission had been received by the Tribunal at 9.01 am just ahead of the 9.30 am hearing. I asked the review applicant if I could discuss the matter with his migration representative. The migration representative indicated that she had been a migration agent for some time and was familiar with Tribunal directions regarding the fact that pre-hearing submissions should be provided at least seven days prior to a hearing. She stated that the day before the hearing she thought it would be good to have a statement from the visa applicant explaining his background the purpose of him coming to Australia. She stated that she therefore spoke to the applicants and asked them to provide the statement. She stated that she should have provided earlier but that in her experience other members have been okay accepting late submissions.

48) I explained to the review applicant that his migration representative had indicated that she is an experienced representative and is aware of the fact that the Tribunal directions stipulates that submissions should be provided well ahead of a hearing and that by not doing so, is disrespectful to the Tribunal and not helpful in his case. I also explained that the fact of the late submission and the conduct of his representative, would not impact on my assessment as to whether or not I am satisfied that his father genuinely intends to remain in Australia temporarily.

49) The migration representative stated that she really apologises for the late submissions. She stated it was her responsibility. I indicated that I found it disappointing that an experienced migration representative would tell the Tribunal that it occurred to them to obtain a statement from a visa applicant the day prior to a hearing and it appeared unprofessional.

DECISION

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

Linda Holub
Member