Lim (Migration)

[2021] AATA 5473

Lim (Migration) [2021] AATA 5473 (20 December 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mong Chin Lim

REPRESENTATIVE:  Ms Teck Moi Tan (MARN: 1279772)

CASE NUMBER:  2013538

HOME AFFAIRS REFERENCE(S):          BCC2020/1536385

MEMBER:Naomi Schmitz

DATE OF DECISION:  20 December 2021

DATE CORRIGENDUM

SIGNED:11 April 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.In the date shown in the decision record, remove “2020” and insert “2021”;

2.In paragraph nine, in the last sentence, delete the three words “closing balance of” appearing immediately before the dollar value given;

3.In paragraph 14, in the fourth line, before the words “Student visa” insert “a”; and

4.In paragraph 16, in the last line, delete the full stop which appears immediately after the word “visas”.

Naomi Schmitz
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mong Chin Lim

REPRESENTATIVE:  Ms Teck Moi Tan (MARN: 1279772)

CASE NUMBER:  2013538

HOME AFFAIRS REFERENCE(S):          BCC2020/1536385

MEMBER:Naomi Schmitz

DATE:20 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2021 at 1:49pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – tourist stream – she intends to remain in Australia for the next two to three years to undertake studies and apply for a Student visa – not satisfied that visa applicant genuinely intends to stay temporarily in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 18 August 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 12 May 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 the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.    

5. The applicant appeared before the Tribunal on 8 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and Mandarin and English languages. The applicant was represented in relation to the review; however the representative did not appear at the hearing, providing documents prior to and after the hearing.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant who is currently living in Canberra and only able to provide evidence ‘virtually’. 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 Microsoft Teams. No concerns were expressed by the visa applicant about the hearing being conducted in this manner, nor was there any indication that visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. After this matter was constituted to the Tribunal Member on 15 October 2021, the Tribunal wrote to the visa applicant’s representative and requested updated information and records to be provided by 1 November 2021 including; a copy of the visa applicant’s passport ensuring that all passport country stamps are visible; an itemised list of all countries the visa applicant has travelled to, if any, including the arrival and departure dates; evidence of the visa applicant’s employment in her home country, if any, including recent evidence of pay slips and taxation returns; evidence of property ownership in her home country, for example a title deed, certificate of title or rates notice and approximate value of property; if the visa applicant is currently leasing property in her home country, evidence of the duration of the lease; any updated information and records about the visa applicant’s assets and financial situation in your home country, such as money in bank accounts; and any other information relevant to your activities, commitments or relationships in her home country, including family which would be an incentive to return.

9. In response on 29 October 2021 the visa applicant provided the following documents: the visa applicant’s passport with country stamps, an itemised list of countries the visa applicant has travelled to, the front page of a ‘Deed of Mutual Covenant’ dated 27 April 2010 and schedule; and a Commonwealth Bank of Australia statement dated 20 October 2021 showing a closing balance of closing balance of $31,829.26AUD.

10. The Tribunal had concerns regarding the source of these funds. Therefore, on 3 November 2021 the Tribunal requested bank statements relating to the visa applicant’s Commonwealth Bank Account (CBA) Number 1099 0577 from January 2020 until present. No response was received from the representative.

11. During the hearing the visa applicant claimed she had provided her representative with a business registration certificate and all her CBA bank statements. The Tribunal Member advised that they had not been submitted to the Tribunal. The visa applicant requested further time to provide them post hearing. During the hearing the visa applicant also claimed that she had four children and was divorced. She asked that she be granted additional further time to provide the birth certificates of her four children and divorce court order. The Tribunal Member granted her further time until 17 November 2021 with the option of an extension if the visa applicant encountered any difficulty.

12. On 16 November 2021, the representative provided to the Tribunal the visa applicant business registration dated 20 November 2017 showing the visa applicant was appointed company director on 12 February 2010 and 25 January 2013, the visa applicant’s bank statements from July 2020 until November 2021, the birth certificates of the visa applicant’s four children and the visa applicant’s divorce court order.

13. The visa applicant is a 43-year-old citizen of Malaysia. 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.

14. On 12 May 2020 the visa applicant requested a further stay of three months until 4 August 2020. In her visa application she claimed her further stay was for the purposes of ‘further study’. At the hearing the visa applicant gave evidence of the same, stating that when she originally arrived in Australia in March 2020, she planned on applying for Student visa, but due to COVID-19 she applied to extend her tourist visa. She stated she was thinking about doing a Business Management course and that she wanted to ‘improve myself’. As this is a purpose that is not related to business or medical treatment, this is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

15. 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)).

16. The visa applicant has travelled to Australia on a number of occasions and has been granted a range of visas including two Electronic Travel Authority Subclass 601 visas, a Subclass 572 Student visa, a Subclass 500 visa and three bridging visas and was compliant. The Tribunal places some weight on the visa applicant’s substantial compliance with the conditions of her last substantive and bridging visas. (cl.600.211(a).

17. 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.

18. The visa applicant gave evidence that she intends to apply for a Student visa once granted her Visitor visa. The visa applicant stated she is not currently employed and has not worked since 2 March 2020 when she was last in Malaysia, prior to arriving in Australia in March 2020. She stated she derives an income from a business she operates in Malaysia and that her brother sends money to her via a friend. The Tribunal has considered the visa applicant’s evidence that she has a desire to apply for a Student visa and is satisfied that she will not engage in any study or training during the currency of her Tourism visa. The Tribunal has also reviewed the visa applicant’s bank statements and considered her evidence that she receives revenue from an offshore business and is satisfied that the visa applicant has sufficient funds to support herself and will comply with condition 8101.

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

20. The Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside of Malaysia. The visa applicant has travelled to China for nine days (July 2011), Indonesia for four days (March 2013), Taiwan for seven days (July 2014), Singapore for two days (March 2019) and Taiwan for 11 days (between June and July 2019). In support the visa applicant provided a copy of her passport depicting various country stamps and an itemised list which the Tribunal accepts. However the Tribunal places limited favourable weight on the travel due to the short durations.

21. The visa applicant gave evidence that she plans to apply for a Student visa and stay in Australia for two to three years and then return to Malaysia. She stated she would like to undertake a Business Management and Marketing course which she can use to operate and expand her company back in Malaysia and manage it herself. She stated she previously commenced some studies which she got ‘half-way through’, but that she had to cease due to family circumstances and would like to finish off her previous course.

22. The visa applicant has two cousins who reside in Australia and a niece who she is currently residing with in Canberra. The visa applicant has an older brother who lives in Malaysia and claimed to be one of five children; however it was unclear from her evidence where her other siblings reside. Her parents are both deceased. The visa applicant has four children currently aged 26, 21, 13 and six years of age. In support she provided four birth certificates which the Tribunal accepts. The visa applicant gave evidence that one of her children are currently studying in Taiwan and the other three live in Malaysia. The visa applicant is divorced and in support provided a copy of her divorce court order which the Tribunal accepts. The visa applicant also has a cousin who resides in New Zealand.

23. The visa applicant states she is currently residing with her niece and that once she gets her ‘proper visa’ and ‘starts her classes’ she will move closer to the learning institution she is enrolled in. The visa applicant owns two motor vehicles in Australia. The Tribunal Member asked her whether she has an Australian drivers licence. The visa applicant stated that she currently uses her international licence to drive, but is presently undertaking a driving course in the Australian Capital Territory (ACT) so she has a drivers licence recognised in Australia. The visa applicant claimed to own a property back in Malaysia, which is currently unoccupied and in support relied on two pages of a deed covenant. During the hearing the Tribunal Member stated that they did not accept the covenant as evidence of ownership, as there was no evidence of a transfer of land and the pages depicted in the deed covenant showed inadequate details as to the property transaction. The visa applicant in response stated that was all she had and claimed that she would not receive the certificate of title until the mortgage is discharged. The visa applicant claimed to operate a business and in support provided a business registration document dated 20 November 2017.

    CONCLUSION

24. The Tribunal has considered all matters carefully. The visa applicant has a valid reason to apply for the visa. The Tribunal places some weight on the visa applicant’s substantial compliance with the conditions of her previous substantive visa and bridging visas. Limited favourable weight is placed on the visa applicant’s previous travel due to the short durations.

25. The Tribunal does not accept that the visa applicant owns any property in Malaysia as no credible independent evidence was provided in support such as a certificate of title or rates notice. Furthermore, the ‘Deed of Mutual Covenant’ does not provide evidence of a transfer of property to the visa applicant and lacks sufficient detail. The Tribunal Member did not find the visa applicant’s claims of not receiving a certificate of title until the mortgage is paid off as credible. The visa applicant gave evidence that she operates a business offshore and has done so successfully, however the Tribunal places limited weight on the business as an incentive to return, given she can do this remotely from Australia. Although the visa applicant has four children, limited weight is placed on them as an incentive to return, given their ages, including two who are adults and live independently and one that studies in Taiwan. While the Tribunal acknowledges that the visa applicant has a brother who resides in Malaysia, the Tribunal is not satisfied that he provides a sufficient incentive to return.

26. Of particular significance is the visa applicant’s evidence that she intends to remain in Australia for the next two to three years to undertake studies and apply for a Student visa. She also plans to rent her own independent accommodation near her learning institution. She also gave evidence of purchasing two motor vehicles which remain in her possession and currently undertaking a driving course to attain her ACT drivers licence. These intentions and conduct raise doubts that she has a genuine intention to stay temporarily for the purpose for which the visa is granted. Rather, this evidence indicates she has an intention to maintain an ongoing residency in Australia. This is further supported by the visa applicant’s evidence that he has remained onshore in Australia for approximately two years since her arrival in March 2020. Balancing the evidence above, it appears that the visa applicant is seeking to prolong her stay indefinitely and that she does not have a genuine intention of remaining temporarily in Australia.

27. Thus, considering all this evidence cumulatively, 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.

    DECISION

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

    Naomi Schmitz
    Member