LI (Migration)

[2021] AATA 4577

LI (Migration) [2021] AATA 4577 (12 November 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lianyi LI

VISA APPLICANT:  Mr Jianhua LI

CASE NUMBER:  2001723

HOME AFFAIRS REFERENCE(S):          BCC2019/722209

MEMBER:Rachel Da Costa

DATE OF DECISION:  12 November 2021

DATE CORRIGENDUM

SIGNED:3 December 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 37 of the decision which reads, ‘The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa’ should be deleted.

Rachel Da Costa
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lianyi LI

VISA APPLICANT:  Mr Jianhua LI

CASE NUMBER:  2001723

HOME AFFAIRS REFERENCE(S):          BCC2019/722209

MEMBER:Rachel Da Costa

DATE:12 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 12 November 2021 at 4:37pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – overstay of last substantive visa and immigration detention – wife in Australia on visitor visa and remaining because of COVID-19 conditions and restrictions – applications for contributory parent visas in progress – siblings and friends in home country but no other children – offer of security bond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 20 January 2020 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 5 January 2020. 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 intends to stay temporarily in Australia for the purpose for which the visa is granted. On 30 January 2020, the review applicant applied to the Tribunal for a review of that decision.

5. The review applicant appeared before the Tribunal on 4 November 2021 to give evidence and present arguments via Microsoft Teams video. The Tribunal also received oral evidence from the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent who also appeared via Microsoft Teams video.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant is the review applicant’s father. He seeks the visa for the purposes of a family visit. This 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 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)).

11. Movement records of the Department of Home affairs show that the visa applicant was granted a Subclass 676 (Tourist) visa on 2 June 2009 and arrived in Australia on 4 August 2009. He departed on 1 November 2009, which was within the time permitted by the visa. He was granted a new Subclass 676 (Tourist) visa on 5 February 2010 which was valid until 25 May 2010. The visa applicant arrived in Australia on 25 February 2010 and remained in Australia without a valid visa until 22 July 2014, on which date he was returned to China from Australia after being detained in immigration detention. The Tribunal finds that the visa applicant did not comply with the conditions his last substantive visa. 

12. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

13. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The applicant gave evidence that she is a part-time piano teacher at Lane Cove Music and Cultural Centre where she has taught for around 4 years. She also does accompaniments for choirs and a ballet school. Her annual income is usually around $50,000 but because of the Covid-19 pandemic it has been reduced by about 30% as she has not been able to work as much. She received some government assistance during the Covid-19 lockdown because of her status as being self-employed. Since 2020 she has also been studying piano full-time at the Sydney Conservatorium of Music. Her husband is a product manager for a safety equipment company. He has been in this role for around 3 years and his annual income is around $80,000. They own a house in Chester Hill with no mortgage, a boat and 4 cars, and a half share in another boat with a friend. They have around $40,000 in savings and no debts. They have no children.

14. The review applicant gave evidence that she lives with her husband and her mother in their house in Chester Hill. This house has three bedrooms and a granny flat. They also rent a one bedroom apartment in Lane Cove where they stay a few nights a week so the review applicant can be closer to her work and study. They move between the two places. The review applicant has an aunt (the visa applicant’s sister) and a cousin in Australia who live close by. The review applicant gave evidence that the visa applicant will stay with them in the Chester Hill house during his visit. The review applicant will pay for the visa applicant’s airfares and will meet his living expenses while he is in Australia. She does not know how much money the visa applicant will bring with him.

15. The review applicant stated that the visa applicant has been retired since 2019. He used to work as a manager for a company that sells environmental equipment. He receives a monthly pension. He lives by himself in an apartment that he owns. She thinks he has around the equivalent of A$5,000 in savings, not including his pension. He has no debts and she does not think he has any other assets. The visa applicant is not planning to work or to do any study or training in Australia. 

16. The visa applicant gave evidence that he has been retired since 2019 but he still works on a casual basis for the company he worked for before he retired. When he was in Australia he worked in a restaurant. He has received a monthly pension in China since he retired which is RMB 2,900 per month. If he is granted the visa, he will stay with the review applicant while he is in Australia. He will pay for his airfares and living expenses because he has some savings that will cover the cost. He is planning to bring just under A$10,000 with him. He has the equivalent of around A$60,000 in savings that he has not deposited in the bank in China and around the equivalent of A$20,000 in e-money. He owns his apartment in China and has no debts. He is not planning to work or to do any study or training in Australia.

17. In considering other relevant matters, the Tribunal discussed the proposed length and purpose of the visa applicant’s visit to Australia and his personal circumstances. In his application for a Visitor visa, the visa applicant stated that his proposed period of stay was up to 3 months from 22 January 2020 to 12 February 2020. The reason for the visit was a family visit.

18. The review applicant gave evidence that the visa applicant wants to come to Australia to see her because she is his only child and he is retired, she is busy so she can’t travel to China very often and she would like to see him. He wants to stay for three months. He just wants to come and make up for missed time and see his family and do some sightseeing. The review applicant last saw the visa applicant in 2016 when they met up on a trip to the USA.

19. The review applicant gave evidence that her mother holds a Visitor visa for Australia and she has remained in Australia, living with the review applicant, since February 2020 because of the Covid-19 situation but her mother will return to China when the Covid-19 situation improves. She stays at the review applicant’s house and mainly does housework and helps with other jobs. The review applicant and her husband are busy with work and can’t go back to China often so the review applicant’s mother likes to be in Australia with her daughter who is her only child. Department records show that the review applicant’s mother has been granted several Visitor visas since 2017 which have permitted her to enter Australia on multiple occasions and that she has not overstayed these visas.   

20. The Tribunal asked the review applicant how the visa applicant spends his time. She stated that he is a social person who has lots of friends and he spends time with his siblings in China. The Tribunal asked the review applicant whether the visa applicant was in good health and she said he was. The Tribunal asked the review applicant whether the visa applicant was religious and she said he is not. The Tribunal asked the review applicant whether the economic situation in China with Covid-19 and more generally had affected the applicant and she said it had not. She also confirmed that he is not involved in politics and has had no problems in terms of the security situation in China.

21. The Tribunal asked the review applicant what incentives the visa applicant has to return to China at the end of his trip to Australia. She responded that he is healthy and has a comfortable life there and his siblings to see. Her mother will return to China when the Covid-19 situation improves and her mother has access to a pension in China too. Her parents won’t come to Australia more often until their Contributory Parent visas, which they applied for in 2017, are granted. The review applicant stated that she has started a new life in Australia and is a citizen and she does not want to ruin that. She also stated that the visa applicant has learned his lesson after he left in 2014. He sincerely realised his mistake and is very regretful of what happened.

22. The review applicant gave evidence that she is prepared to lodge a security bond of $10,000 to ensure that the visa applicant complies with the conditions of his Visitor visa.

23. The visa applicant gave evidence that he wants to come to Australia to spend time with his daughter and he will not do anything to violate the laws again. If he gets the Visitor visa he will visit for around one month or two weeks and then return to China. The visa applicant gave evidence that he is healthy and fit. He spends his time in China at home, doing some work, seeing his siblings and doing some travel. He confirmed that he is not religious and that he has not been affected by the economic, political or security situation in China.

24. The Tribunal asked the visa applicant what incentives he has to return to China at the end of his trip. He responded that he has his home and his older siblings, who are getting old, and so he would definitely return. He said he will not overstay his visa and commit the same error again. When asked what would happen if he came to Australia and changed his mind and decided not to go back to China, the visa applicant responded that it will not happen. His daughter is an Australian citizen and he respects that. He will follow the Australian laws.

25. The Tribunal asked the visa applicant whether he had ever lived in Australia unlawfully and he responded that he had. He said it was his biggest regret. He came to visit his daughter in February 2010 and he met someone who owned a restaurant who suggested they form a business partnership. This person said he could arrange a working visa for the visa applicant. The visa applicant was interested in investing in Australia and thought this person was honest and so he paid him some money. In May 2014, he asked the person how the application process was going. The person told him he could not organise it and returned the money paid by the visa applicant. Two months later, the visa applicant was arrested and taken into detention. When asked why it took him so long to ask how the application was going and why he did not get advice at the start when this person suggested the arrangement, the visa applicant responded that he was not familiar with the procedure or legal process.

26. The Tribunal put this information about the visa applicant’s non-compliance with his Visitor visa to the review applicant pursuant to s 359AA of the Act and noted that the visa applicant’s conduct indicates that he is a person who does not respect Australia’s immigration laws. The Tribunal noted that this raised a concern that he may not comply with the conditions of a Visitor visa if he is granted one. The review applicant responded that she believes her father was a victim in 2010 and he was naïve, she had not been in Australia for long (on her Student visa) at the time and she had trusted what he told her. They did not have the legal knowledge and should have sought advice. Now she has been living here for a long time and is a citizen she knows more and the situation is different. She guarantees it will not happen again. She believes the visa applicant has also realised he made a big mistake in the past.

27. The review applicant gave evidence that the visa applicant and his wife (the review applicant’s mother) applied for Contributory Parent visas in 2017. Departmental records confirm this is correct. She said her parents both want to come to Australia permanently because they are getting elderly, she is their only child and they want to be together. The visa applicant gave evidence that he would like to be reunited with his daughter and he wants to be able to stay in Australia permanently. He gave evidence that he intends to proceed with his Contributory Parent visa application even if his Visitor visa application is successful. The Tribunal asked the visa applicant how it could be satisfied given his past history of non-compliance and his expressed wish to stay in Australia permanently, that he would return to China at the end of his visit if he were granted the Visitor visa. The visa applicant stated that he had not followed the rules in the past but if he is granted the Visitor visa he will come for a visit and then go back to China. He said he will not do anything to violate the laws again.

28. The Tribunal put to the review applicant, pursuant to s 359AA, that the application for a Contributory Parent visa, which is a permanent visa, raised a concern about the visa applicant’s intention in coming to Australia and whether he would comply with the conditions of his Visitor visa if granted, particularly given the review applicant’s mother (the visa applicant’s wife) has been spending the majority of her time since 2018 in Australia on her Visitor visa. The review applicant responded that her mother will return to China after Covid-19. She will not stay here permanently until her Contributory Parent visa is granted. The review applicant stated that she is a citizen now and if anything happens she will be responsible. The visa applicant would never do that to her. The visa applicant knows what happened last time and would never be able to come to Australia again. The review applicant also stated that the Contributory Parent visa application was a factor in favour of the visa applicant doing the right thing because if he is granted the Visitor visa, he will not do anything to ruin his chance of getting the Contributory Parent visa. She gave evidence that her migration agent has informed her that although the process is slow the Department is currently considering applications from 2015 and so they are getting closer to her parents’ Contributory Parent visa application being considered and they want that application to succeed.

29. Having considered all the evidence, the Tribunal accepts that the visa applicant does not intend to work, study or undertake training in Australia. The Tribunal accepts that the review applicant will provide him with accommodation and pay for his living expenses in Australia. The Tribunal accepts that the visa applicant has a strong desire to see the review applicant in Australia. The Tribunal is of the view that the application for Contributory Parent visas by the visa applicant and his wife indicate their desire to live in Australia permanently.

30. The Tribunal has considered whether the visa applicant’s application for a Contributory Parent visa would ensure that he complies with the conditions of a Visitor visa so as not to jeopardise the success of that application. The review applicant’s evidence to the Tribunal is that her migration agent is assisting them with that application, the process is slow but it is progressing, and they are hopeful of a positive outcome. The Tribunal has considered the visa applicant’s adverse immigration history in Australia, however the Tribunal accepts the evidence of the visa applicant and the review applicant that the visa applicant realises he made a big mistake in the past which he will not repeat again. The Tribunal also accepts that the visa applicant respects his daughter’s status as an Australian citizen and that he will follow the laws for her sake. On this basis, the Tribunal finds that the visa applicant would comply with the conditions of a Visitor visa and return to China at the end of his permitted stay so as not to jeopardise his chance of being granted a Contributory Parent visa.

31. The Tribunal is of the view that the presence in Australia of the visa applicant’s only child and his wife (albeit on a Visitor visa) provide strong incentives for him to remain in Australia after the end of his permitted stay. The Tribunal accepts that the visa applicant has some incentives to return to China at the end of his visit, including his siblings and social connections, his property and the payment of his pension. The Tribunal does not consider that this provides a particularly strong incentive for him to return to China.

1. However, the Tribunal accepts the assurances given by the review applicant that as a person who has lived in Australia for a long time and who is now an Australian citizen, she regrets what happened in the past and feels a strong responsibility to ensure that the visa applicant complies with the law and that the visa applicant would not put her in a difficult position by not complying. The Tribunal also accepts the visa applicant’s assurances that he regrets what he did in the past, he respects his daughter’s position as an Australian citizen and that he will comply with Australian laws, including the conditions of his Visitor visa. The Tribunal places some weight on the fact that the review applicant has a migration agent assisting her with the various visa applications. The Tribunal also places weight on the fact that the review applicant’s mother has complied with the conditions of her Visitor visas and the review applicant herself complied with the conditions of her visas prior to becoming an Australian citizen.

2. The Tribunal is satisfied that it is the visa applicant’s intention to visit his daughter and her husband in Australia and that he will not remain in Australia after the end of his permitted stay. The Tribunal is satisfied that he will comply with his visa conditions.

3. For the above reasons the Tribunal is 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 met.

   Section 376 certificate

4. The Tribunal informed the review applicant that the visa applicant’s file from the Department contained a certificate under s 376 of the Act and it related to the non-disclosure of information contained on the file. The Tribunal informed her that it had looked at the information covered by the certificate, which is Departmental notes that led to the delegate’s decision to refuse the visa applicant’s visa. The Tribunal informed the visa applicant that in its view, the information was not relevant to the application before the Tribunal and the Tribunal would not have regard to it. The Tribunal would make its own decision based on the evidence before it. In the Tribunal’s view, the certificate is not valid. The review applicant indicated she did not wish to make any submissions in relation to the certificate.

   DECISION

5. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl 600.211 of Schedule 2 to the Regulations.

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

   Rachel Da Costa
   Member