Jia (Migration) - [2020] AATA 2536

Jia (Migration) [2020] AATA 2536 (2 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Susie Jia
VISA APPLICANT:  Mr Yujie Gao
CASE NUMBER:  1921326
HOME AFFAIRS REFERENCE(S):          BCC2019/3210866
MEMBER:Jane Marquard
DATE:2 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 02 April 2020 at 6:08am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary stay criterion – visa cancellation – 3 years exclusion periods – applicant failed to meet PIC 4013 – compelling circumstance exists but doesn’t justify the granting of the visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.213, Schedule 4, PIC 4013

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration (the Department) on 25 July 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a man from Guangzhou, China. He applied for the visa on 26 June 2019. 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. The review applicant is his wife, who is an Australian citizen.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.
The review applicant appeared before the Tribunal on 25 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by her registered migration agent and a number of written submissions were provided.
The visa applicant also applied for another Subclass 600 visa in a separate application on 28 April 2019. That application was refused on 29 April 2019. The review of that decision is being considered simultaneously with this review, with the consent of the applicants.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The common criteria in Subdivision 600.21 must be satisfied by all applicants seeking to satisfy the primary criteria for a Subclass 600 visa. The common criteria require that: the applicant genuinely intends to stay temporarily in Australia for the purpose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Jia (Migration) [2020] AATA 2536
Case: [2020] AATA 2536
Decision Date: 2 April 2020

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, Tourist stream, Subclass 600, before the Administrative Appeals Tribunal. The applicant sought review of a decision not to grant the visa.

The Tribunal was required to determine two primary issues: whether the applicant satisfied Public Interest Criteria 4013 (PIC 4013), and whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, as required by clause 600.211 of the Migration Regulations 1994. PIC 4013 mandates that an applicant affected by a risk factor, such as a previous visa cancellation under section 116 of the Migration Act 1958, must satisfy specific alternate criteria.

The Tribunal found that the applicant did not satisfy PIC 4013 because a previous Subclass 600 visa had been cancelled under section 116(1)(d) of the Act on 26 April 2019. While the applicant provided an explanation for the cancellation, attributing it to a name change and alleged negligence by a visa service rather than an intention to conceal information, the Tribunal noted it did not have access to all the evidence before the original decision-maker and that decision was not under review. Consequently, the Tribunal concluded that it was not necessary to determine the issue of genuine temporary stay, as the failure to meet PIC 4013 was determinative.

The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE The common criteria in Subdivision 600.21 must be satisfied by all applicants seeking to satisfy the primary criteria for a Subclass 600 visa. The common criteria require that: the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to relevant factors;[1] the applicant has adequate means, or access to adequate means, to support themselves in Australia;[2] the applicant satisfies certain public interest criteria (PIC)[3] and special return criteria;[4] and there must be exceptional circumstances for the grant of the visa, if the grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of certain visas.[5][1] cl.600.211.[2] cl.600.212.[3] cl.600.213.[4] cl.600.214.[5] cl.600.215. There are two relevant issues in this case - whether the visa applicant satisfies Public Interest Criteria 4013 (cl. 600.213) and whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted (cl. 600.211).Whether the visa applicant satisfies Public Interest Criteria 4013 (PIC 4013) PIC 4013 provides that where an applicant is affected by a risk factor as set out in that criterion, he or she is required to satisfy one of the two alternate criteria set out in cl.4013(1). A person is affected by a ‘risk factor’ if a visa he or she previously held was cancelled under s.116 of the Act (PIC 4013(1)(A)). On 26 April 2019 a delegate of the Minister cancelled the visa applicant’s visitor (Subclass 600) visa under Section 116 (1)(d) of the Act. The fact of the cancellation was put to the visa applicant under natural justice provisions at the Tribunal hearing in this matter. The visa applicant submitted that he was not satisfied with the reasons for the cancellation, given the circumstances under which the cancellation occurred. He claimed that he has always complied with conditions of the numerous visas that he has held previously. He submitted that his visa was cancelled because he was stopped and interviewed at Hong Kong Airport because his name had been changed without notification to the authorities. He claimed that he had changed his name to follow his mother’s name after his parents divorced in 2003 because of his mother’s wishes. He claimed that notification of his earlier name had not been provided to authorities by the free visa service of China Citic Bank. He said that the bank had failed to collect and provide information regarding his previous name when they completed his application form. He claimed that the cancellation was due to negligence rather than an intention to conceal information. While there may be merit in this claim, the Tribunal has not been privy to all the evidence before the decision-maker who made the cancellation decision, and that decision is not subject to review.

Decision

Reasons for decision

The Tribunal notes that although this evidence may well support his submission that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, it is not necessary for the Tribunal to determine this matter, as the Tribunal has found that the visa applicant does not meet cl. 600.213 of the Act. DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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