LI (Migration)

[2020] AATA 5909

LI (Migration) [2020] AATA 5909 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Haibo LI

VISA APPLICANT:  Mrs Aiying WU

CASE NUMBER:  1819613

HOME AFFAIRS REFERENCE(S):          BCC2018/2384146

MEMBER:Tania Flood

DATE:18 December 2020

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 18 December 2020 at 5:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – balance of family to remain in China – review applicant’s wife due to give birth – care for granddaughter – supporting a child with disability – offer of a security bond – property ownership in China – Christian practising in a registered church – decision under review remitted 

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 Immigration on 20 June 2018 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 applied for the visa on 3 June 2018. 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 (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 the delegate was not satisfied that she genuinely intends to visit Australia temporarily.  

5. The review applicant appeared before the Tribunal on 18 December 2020 by MS Teams audio to present arguments in support of his mother’s application for a Visitor visa.  The hearing was held during the COVID-19 pandemic and the Tribunal determined it was reasonable to hold the hearing by teleconference having regard to the nature of this matter 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 teleconference.  The Tribunal also received oral evidence from the visa applicant offshore. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal is satisfied the applicant’s given a fair opportunity to give evidence and present arguments. 

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

   BACKGROUND

7. According to information provided in the application for a Visitor visa, the visa applicant is a fifty-two-year-old citizen of China. She resides in Fuzhou in Fujian Province, China. She has one son, a daughter-in-law, and a granddaughter in Australia.  She wishes to travel to Australia for up to three months for a family visit. She is retired.

8. In a submission to the Tribunal, the visa applicant indicated that her parents, three brothers and one son reside in China.

9. The review applicant is the son of the visa applicant. In a letter submitted to the Tribunal on 5 July 2018, the review applicant stated that he wishes to invite his mother to visit him and his family in Australia, to have a holiday and look after his young daughter. He stated that he will provide accommodation for the duration of her stay.

10. In an email to the Tribunal dated 9 January 2019, the review applicant stated that his wife is due to give birth to their second child and he would like his mother to come to Australia to celebrate the newborn baby, and to look after his wife and two year old daughter. The review applicant also stated that he wants to show his mother the culture in Australia, having lived in Australia for ten years. In a further email to the Tribunal dated 27 November 2020 the review applicant stated that he and his wife are welcoming their third child and it would be helpful if his mother can visit them in Australia to celebrate the newborn baby.   

11. Documents provided in support of the application include copies of the visa applicant’s Chinese bank statements, drivers licence and house certificate, birth and disability certificates for the visa applicant’s son in China, evidence of the visa applicant’s travel to Taiwan.

    Tribunal Hearing

12. The review and visa applicants’ oral evidence to the Tribunal is summarised as follows:

13. The review applicant is an Australian permanent resident.  He resides with his wife and two children in a rented apartment.  They are intending to purchase a residential property next year.  They are expecting a third child in July 2021.

14. The review applicant and his wife run their own frozen foods wholesale business.  They commenced the business in 2015.  Their income is slightly down this year as compared to previous years.  

15. The review applicants two children are aged four and two.  The eldest child attends a childcare centre three days per week.  This will increase to five days per week next year.  The youngest child will commence childcare next year initially for three days per week.  Their children sometimes accompany them while they are working.

16. The review applicant has no other family in Australia.  His wife’s parents sometime offer help with the children. 

17. The visa applicant is the review applicant’s mother.  She lives in Fuzhou City with her eldest son who has cerebral palsy.  He cannot work or care for himself independently due to his disability.  She is divorced from her son’s father.

18. The visa applicant cannot work as she is responsible for the care of her disabled son.  She owns a two-level apartment and she rents out one of the levels for an income.  They also receive some financial assistance from the visa applicant’s ex-husband.

19. The visa applicant’s parents and siblings also reside in Fujian Province.  They sometimes provide her with some assistance taking care of her son as does her ex-husband.

20. The visa applicant visited Taiwan in 2013 with her father.  She has only ever made one application to visit Australia and has not travelled elsewhere.

21. The review applicant usually visits China once per year in order that his children can spend time with their grandparents.  This year they were unable to do so due to the Coronavirus pandemic however it is their intention to continue making regular visits to China when it is safe to do so.  

22. The visa applicant would like to visit Australia for up to three months to visit her family and to assist the review applicant and his wife to care for the children for a short while.

23. The visa applicant will return to China after visiting Australia because her ex-husband and relatives can only assist with the care of her eldest son temporarily.  She also has a rental property to manage.  If she was to remain in Australia she would have no income.

24. The visa applicant stated that she is a Christian.  She said she attends church, usually weekly, in a registered Christian church.  She said that all her mother’s family are Christian and they have not encountered problems practicing their faith in China. 

25. The review applicant would be willing to provide a security bond but the amount would depend on his capability as he is saving to buy a property next year.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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.

27. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

28. 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)).

29. The review applicant first arrived in Australia on 8 September 2007 as the holder of a Student visa (TU 571). He was granted a further Student visa (TU 571) while onshore. He was also granted a TU-572 Student visa on 6 April 2011. Following a Tribunal decision, the review applicant was granted a Combined Partner visa (UK 820/BS 801) on 7 July 2017.

30. The review applicant’s wife first arrived in Australia on 27 March 2011 as a dependent on her mother’s Partner visa (UF 309/BC100). She acquired Australian citizenship on 20 October 2015. She has previously sponsored the review applicant in relation to his partner visa application.

31. 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.

32. In the Tribunal’s view the review and visa applicants provided consistent and credible evidence in support of the case and the Tribunal accepts the visa applicant’s personal circumstances are as claimed.

33. The visa applicant is proposing to make a short trip to Australia to visit her son and her grandchildren and to provide her son and pregnant daughter-in-law with some respite caring for their two young children.  She will be accommodated by her son for the duration of the visit.  She has not and does not work in China because her eldest son has cerebral palsy and requires her care.  In view of the circumstances the Tribunal is satisfied that the visa applicant will not work or engage in study or training in Australia if she is granted a Visitor visa.  The Tribunal is satisfied that she will comply with conditions 8101 and 8201 if she is granted a Visitor visa.

34. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia.

35. Based on the available evidence the visa applicant has a son, daughter-in-law and soon to be three grandchildren in Australia.  The Tribunal acknowledges that the presence of family in Australia, particularly three very young grandchildren, could act as an enticement for her to remain in Australia beyond the end of any permitted stay.  However, the review applicant’s evidence, which the Tribunal accepts, is that he and his family ordinarily make an annual visit home to China to visit family.  The Tribunal is satisfied that the review applicant is committed to ensuring his children maintain regular contact with their grandparents in this way. 

36. In addition, the visa applicant has a disabled son, mother and siblings residing in China.  During the hearing the visa applicant persuaded the Tribunal that her responsibility toward her eldest son outweighs any incentive she may have to remain in Australia.  The Tribunal accepts that her ex-husband and other relatives are willing to care for her son in her absence from China but that she will be required to resume this responsibility after a short break.  The Tribunal is persuaded that the visa applicant’s family ties in China are significant and are a strong inducement for her to return home at the end of a permitted stay in Australia.

37. Based on her oral evidence, the visa applicant is a practicing Christian.  The Tribunal acknowledges that since 2018 there has been a tightening of religious controls in China as religious observance has grown.  However, according to DFAT’s most recent country information report on China[1], religious practitioners are generally able to thrive to a greater degree in Fujian province due largely to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China.  DFAT reports that individuals in Fujian have historically practised religion more freely within state-sanctioned boundaries than in other parts of China as long as practices do not challenge the interests or authority of the Chinese Communist Party.  During the hearing, the Tribunal discussed with the visa applicant her experience as a Chinese Christian.  She informed the Tribunal that she attends a registered Christian church in China and has not encountered any harm from the authorities on account of her religion and the Tribunal found her evidence is supported by DFAT’s reporting on the situation in Fujian province.   Given the country information and in view of the Tribunal’s assessment of her general credibility the Tribunal is persuaded she has no cause to seek to remain in Australia beyond the end of her visa for reason of the fact she is a Christian.

    [1] DFAT Country Information Report, China, 3 October 2019

38. The Tribunal has also considered and placed weight on the review applicant and his wife’s migration history which raises no issues of concern for the Tribunal about the genuineness of the visa applicant’s intentions.

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

40. 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.

    DECISION

41. 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.

    Tania Flood
    Member