Lin (Migration)

[2020] AATA 4055

Lin (Migration) [2020] AATA 4055 (1 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xifang Lin

VISA APPLICANT:  Ms Yinjiao Chen

CASE NUMBER:  1818351

HOME AFFAIRS REFERENCE(S):          BCC2018/2193688

MEMBER:Angela Cranston

DATE:1 October 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 1 October 2020 at 12:24pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – no previous visa or travel – review applicant and wife only family members in Australia – extended family, business and property in home country – review applicant’s offer of security deposit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Immigration on 6 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 Tribunal’s consideration of claims and evidence is at paragraph 14. The claims and evidence are directly below. 

3.    The visa applicant applied for the visa on 21 May 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.

4. 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.

5.    In her application, the applicant stated that he was born in 1959, was married and born in Pingtan County, that she had two children, a parent and three siblings that would remain in China, that she wanted to come to Australia to visit for up to 3 months and that wanted to visit the review applicant, his son. She also stated she was a housewife.

6.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 for the following reasons:

I have noted that the applicant has declared the presence of family members that will remain in China during the proposed visit to Australia namely two adult children, one elderly parent and three siblings. While I acknowledge that these family members may offer some inducement to return to China, I am not satisfied their presence sufficiently demonstrates that the applicant intends a genuine temporary stay in Australia.
In response to the employment status of the applicant on the application for a visitor short stay visa, the applicant declared that she is not in paid employment and her occupation is housewife. Based on the evidence provided, I am not satisfied that the applicant’s employment circumstances would encourage the applicant to depart Australia at the end of the proposed visit.
The applicant provided insufficient evidence that they are receiving a regular income/pension. Therefore, I am not satisfied that the applicant has demonstrated that there is a strong financial incentive to comply with any visa conditions and to depart Australia within the visa validity period.
The applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in was Australia or other countries. I therefore place no weight on previous international travel as evidence that the applicant will comply with their visa conditions and depart Australia within the visa validity period. There is no evidence to demonstrate a history of abiding by the conditions of prior visas and departing other countries within the visa validity. This is a factor in my decision to refuse the application.
I have taken into consideration the offers of support given by family members in Australia. However the onus is on the applicant to demonstrate that they have the means and intention for a genuine temporary stay in Australia. I have noted the support provided by the applicant’s son, Xifang Lin, however this is not sufficient outweigh concerns about the applicant’s personal, business and employment ties to China necessary to demonstrate that they intend a genuine temporary stay and intend to depart Australia within visa validity.

7.    The review applicant appeared before the Tribunal on 30 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin, Fuqing (Chinese) and English languages.

8.    The review applicant was represented in relation to the review by his registered migration agent. The review applicant agreed to combine two hearings (that is the review applicant’s separate review applications in relation to the applicant and her husband’s separate visa applications).

9.    The Tribunal indicated the conditions that would be attached to any Australian tourist visa, that is the applicant must not work in Australia, must not study, would not be entitled to any visa other than a protection visa in Australia and must not remain in Australia after any period of permitted stay.

1. The review applicant stated that his parents had not previously visited Australia. He also stated that his parents had been operating the same business in Pingtan County for years and had supported the review applicant throughout his studies, so he felt that they had sufficient income to meet their trip expenses. He also stated that they still operated that business, that he was the only family member in Australia (apart from his wife), that the applicant’s family in China included the review applicant’s maternal grandmother, the applicant’s son and sister and the applicant’s five grandchildren. The applicant had 4 siblings and her husband had 2 siblings. The review applicant stated that his maternal grandmother was 97 and that the applicant wife looked after her. He also stated the applicant and her husband had their business, looked after their grandchildren who lived close by and their friends and relatives lived there. They also had land, the floating petrol station and two motorcycles.  The review applicant stated that he was willing to offer a security of $50 000.

2. The review applicant stated that he was keen for both applicants to come to Australia, however if only one could come, he would be happy for his father to visit first. 

3. Movement records indicate the review applicant arrived in Australia in 2005 on a student visa. He obtained a permanent visa skilled independent visa (subclass 885) visa on 25 December 2013.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

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

3. 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)), however because the applicant has not been to Australia, this is not relevant.

4. 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.

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

6. The applicant is a 61, nearly 62 year old Chinese national who is the review applicant's mother. She is married with 3 children and has lived in Pingtan County her entire life. She has family in China that includes her husband (who is also a visitor visa applicant), two children, grandchildren and siblings. She also has property and other possessions in Pingtan County.

7. The Tribunal has considered the applicant's personal ties to China and property ties to China. While the Department was not satisfied that the applicant had provided sufficient evidence that the applicant was receiving a regular income and was not satisfied that the applicant’s circumstances would encourage her to depart Australia at the end of the proposed visit, the Tribunal accepts that the applicant has spent her entire life in Pingtan County and that her personal ties to that area as well as her age would be strong reasons why she would only stay temporarily in Australia and will return to China.

8. The Tribunal has also considered that there is nothing adverse before it in relation to the review applicant's migration history or that of his family and the Tribunal accepts that the review applicant is the only member of the applicant’s family in Australia. The Tribunal also accepts that the review applicant is an honest witness and that it is his intention for the applicant to visit Australia only. The Tribunal is also mindful that the parties would not wish to jeopardize the future travel of any other family members to Australia including the review applicant’s siblings.

9. The review applicant has also stated he is willing to lodge a security of up to $50 000 if required, and the Tribunal considers that the lodgment of a security will serve as a strong financial inducement for the applicant to return to China should she come to Australia.

10. For the above reasons the Tribunal is satisfied that the visa applicant 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

1. 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.

Angela Cranston
Member