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

1. 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).

2. 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.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. 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.

5. 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.

6. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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)

10. 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).

11. 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.

12. 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.

13. The Tribunal is satisfied therefore that the visa was cancelled and that the visa applicant is affected by a risk factor. The applicant must therefore satisfy one of the two alternate criteria set out in PIC 4013.

14. PIC 4013(1)(a) requires that the visa application has been made more than 3 years after the date of the relevant visa cancellation. The visa cancellation was on 26 April 2019. This application was made on 26 June 2019. The Tribunal is not satisfied therefore that the applicant meets Clause 4013(1)(a).

15. PIC 4013(1)(b) requires that the decision-maker be satisfied that in the particular case there are compelling circumstances affecting the interests of Australia, or compassionate and compelling circumstances affecting the interests of an Australian citizen, that justify the granting of the visa within three years of the cancellation.

16. The Tribunal is not satisfied that there are compelling circumstances affecting the interests of Australia. Departmental guidelines indicate that compelling circumstances may arise where the exclusion period has arisen from a Departmental error or an unintended consequence of the exclusion provisions.[6] However, although the applicants have submitted that the cancellation decision was based on inadvertence rather than dishonesty, there is no indication of Departmental error in this case nor an unintended consequence of the exclusion provisions. The Tribunal is satisfied that there was no error of law which may amount to a compelling circumstance affecting the interests of Australia.

    [6] PAM3 – Migration Act, see also Anupama v MIAC [2009] FMCA 817

17. The Tribunal has considered whether there are compassionate and compelling circumstances affecting the interests of an Australian citizen that justify the granting of the visa within three years after the date of the visa cancellation. The review applicant and her son are Australian citizens, as evidenced by Australian passports. The applicants submit that there are compassionate and compelling circumstances affecting their interests which justify the granting of the visa within three years after the date of the cancellation.

18. The applicants’ son was born on 31 July 2019 with partial deafness. This was evidenced by an appointment letter from the Deafness Centre, Children’s Hospital at Westmead and a letter from the National Disability Insurance Agency dated 20 June 2019 stating that an NDIS plan had been approved. It was submitted that their son needs to spend time with his father. It was also submitted that the review applicant needs the visa applicant’s emotional and practical support. She needs his help to take the son to hospital visits as she does not have a driver’s licence. The review applicant said that her mother is in Australia and visits every few days, however her mother also needs to look after her grandmother. The review applicant’s sister is also unable to help as she lives with her boyfriend, and her father lives some distance away in Blacktown. The review applicant said that she had to risk travelling to China at the time when coronavirus was prevalent there, as her husband was unable to visit her in Australia.

19. There are no definitions of compassionate and compelling circumstances in the Act. General principles can be extracted from case law where there has been consideration of the meaning and scope of the various forms of the phrase ‘compelling and/or compassionate’. Generally, having regard to its ordinary meaning, ‘compassionate’ can be defined as ‘circumstances that invoke sympathy or pity’, where ’compelling’ (to compel) may include ‘to urge irresistibly’ and to ‘bring about moral necessity’. Where the words ‘compelling’ and ‘compassionate’ are used in conjunction with each other (i.e. “…compelling and compassionate circumstances…”) the requirement is cumulative in the sense that even if some of the circumstances are found to be compassionate, that will not suffice if the circumstances are not also compelling.[7] Rather, what is required is an event or events that are far-reaching and most heavily persuasive.[8]

    [7] Anani v MIMAC [2013] FCCA 1140 (Judge Barnes, 26 July 2013) at [29]

    [8] Thongpraphai v MIMA [2000] FCA 1590 (O’Loughlin J, 10 November 2000, Hamoud v MIBP [2015] FCCA 1087 (Judge Driver, 28 April 2015), Tererav MIMIA [2003] FCA 1570

20. The Tribunal is satisfied that there are compassionate circumstances in this case as the applicants have a young baby who has partial deafness and the review applicant would like her son to spend time with his father and get to know him,  and would also like the visa applicant to assist with hospital visits and other practical needs.  The applicants have been married for three years and thus it is understandable that the review applicant would also like him to visit her in Australia, as he has done in the past on many occasions, particularly now that they have a child together.

21. However the legislation requires that there be compassionate and compelling circumstances which justify the grant of the visa within three years of the date of cancellation. The Tribunal is not satisfied that there are compelling circumstances which justify the grant of the visa within three years of the cancellation. As discussed earlier, the ordinary meaning of ‘compelling’ suggests that the reasons in question must urge irresistibly, and the events must be far-reaching and heavily persuasive[9], however that is not the case in this instance. A determination as to whether a particular reason or reasons is compelling involves an evaluative judgment based on the circumstances of the case and with regard to the legislative context and any applicable policy.[10]  It is relevant to take into account the purpose of the statutory provision in determining whether there are compelling reasons.

    [9] Paduano v MIMIA (2005) 143 FCR 204, at [37], Thongpraphai v MIMA [2000] FCA 1590 (O’Loughlin J, 10 November 2000)

    [10] Plaintiff M64/2015 v MIBP [2015] HCA 50 (French CJ, Bell, Keane and Gordon JJ; and with Gageler J delivering a separate judgment), per French CJ, Bell, Keane and Gordon JJ at [53]

22. The Tribunal has taken into account the context in which this phrase appears and the purpose of the provision. PIC 4013 is set out in Schedule 4 to the Regulations. The general purpose of such exclusion periods is to:

    ·     demonstrate the seriousness with which breaches of migration or other Australian laws are viewed;

    ·     deter people from breaching migration laws; and

    ·     maintain the integrity of migration policies.[11]

    [11] Explanatory Statement to SR2002, No.10.

23. The date of the visa cancellation was April 2019 such that less than a year has passed. As set out above, the general purpose of exclusion periods in the legislation is to demonstrate the seriousness with which breaches of migration law are viewed, deter people from breaching migration laws and maintain the integrity of migration policies.  The Tribunal notes that the review applicant and her son have financial support from the visa applicant, who is paying mortgage and other payments. They also have emotional and some practical support from the review applicant’s parents, sister and grandmother in Australia. The applicants have maintained a long-distance relationship since the inception of their relationship in 2016. They have a strong connection to China having married in Jian Wen on 3 June 2016 with friends travelling from Australia, the USA and Shanghai for the wedding. The visa applicant left a stable five-year bank job as a mortgage specialist for National Australia Bank to move to China to be with her husband where she spent 11 months in 2018. They told the Tribunal that it was not the intention of the visa applicant to live in Australia given his business interests in China. Thus, once the coronavirus pandemic is over, it will be open to the review applicant and their child to travel to China to spend time with the visa applicant. Throughout their relationship they have travelled back and forth from Australia and China, as evidenced by their passport stamps and a list of travel provided by China Southern Airlines Sky Pearl Club Gold and Silver Card as well as Departmental records.  

24. The Tribunal notes that at the time of this decision there are travel restrictions on travel between Australia and China. It is unlikely that the applicants could travel for some no matter what the outcome of this review is. As set out above, the Tribunal has taken into consideration the policy considerations of the provisions, the fact that the review applicant and her child have support in Australia, and the fact that the review applicant has travelled to and lived for some time in China. Once the coronavirus period is over, the review applicant and her son may be able to again visit the visa applicant in China during the three year period. While there are compassionate circumstances, the Tribunal must consider cumulatively whether there are compassionate and compelling circumstances.[12] To be ‘compelling’ the reasons in question must force or drive the decision-maker irresistibly to some end[13]  and the events must be far-reaching and heavily persuasive.[14] The Tribunal is not satisfied, considering all the factors cumulatively, that there are compassionate and compelling circumstances which justify the granting of the visa within the three year period.

    [12] Anani v MIMAC [2013] FCCA 1140 (Judge Barnes, 26 July 2013) at [29]

    [13] Plaintiff M64/2015 v MIBP [2015] HCA 50 (French CJ, Bell, Keane and Gordon JJ; and with Gageler J delivering a separate judgment) per French CJ, Bell, Keane and Gordon JJ at [31].

    [14] Thongpraphai v MIMA [2000] FCA 1590 (O’Loughlin J, 10 November 2000, Hamoud v MIBP [2015] FCCA 1087 (Judge Driver, 28 April 2015), Tererav MIMIA [2003] FCA 1570

25. The Tribunal is not satisfied therefore that the visa applicant meets PIC 4013(1)(b). It follows that the applicant does not meet cl. 600.213 of the Act.

    Whether the visa applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted

26. For reasons set out above, the Tribunal is not satisfied that the visa applicant meets cl. 600.213 of the Act, which is one of the common criteria for all applicants seeking to satisfy the criteria for a Subclass 600 visa.

27. It is not necessary therefore for the Tribunal to determine 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.

28. The Tribunal notes that a substantial volume of evidence was provided to support the visa applicant’s submission that he would comply with conditions to which the visa would be subject, and that he genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted. This evidence included:

    ·    Evidence that the visa applicant complied substantially with the conditions to which his last substantive visa and other visas were subject. Evidence was provided that the visa applicant had travelled to Australia fifteen times from 2016 to 2019 and had complied with visa conditions. Evidence was also provided that he travelled to Canada, the USA, Germany, the UK and New Zealand and complied with the conditions of these visas. Most recently he travelled to the USA in October 2019 on a multiple-entry visitor visa. Evidence was also provided that the review applicant’s uncle and aunt visited in 2016 and 2019 and her paternal grandmother in 2017 as well as two cousins and an aunt, and that all complied with visa conditions.

    ·    Evidence of incentives to return to China despite the presence of his son and wife in Australia, which included documents relevant to the applicant’s long-term and stable job with a company providing Chinese entertainment overseas. According to this evidence, the company, Jiangmen Jinquan Cultural Company (Golden Spring Entertainment in English) organises shows and operas and takes entertainers such as singers and performers to the USA and Canada. Performances take place in Vancouver, New York and Los Angeles among other cities. The shows involve Jian Li, a singer, and De Gang Guo, a talk-show celebrity and other Chinese celebrities. The delegate had concerns about the existence of this company and in response the applicant provided documents to the Tribunal to evidence the company and his involvement in it, including an employment certificate from a director of the company, an employment card, photographs and bank documents. The Tribunal was also referred to the website relating to the business and the applicant was able to correctly state the shareholders’ names and place of registered business. It was submitted that the visa applicant had no intention of living in Australia due to the success of this company which has 43 employees and his obligations in China and for international travel. The visa applicant provided evidence that he has been General Manager of the company since 2016. The visa applicant also submitted that the presence of his mother in China was a significant incentive to return to China.

29. 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

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

    Jane Marquard
    Member