Lin (Migration)

[2020] AATA 3418

Lin (Migration) [2020] AATA 3418 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mouhua Lin

VISA APPLICANT:  Ms Xiujin Lin

CASE NUMBER:  1830097

DIBP REFERENCE(S):  

MEMBER:Ian Garnham

DATE AND TIME OF

ORAL DECISION AND REASONS:         28 May 2020 at 1:05 pm (VIC time)

DATE OF WRITTEN RECORD:                2 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the following criteria for a subclass 600 Visitor (Class FA) visa.

Statement made on 02 July 2020 at 5:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa - Subclass 600 (Visitor) (Class FA) – sponsored family stream – genuine temporary entrant – family members’ history of compliant travel – applicant’s husband and children in China – strong incentive to return – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cl 600.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 October 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 28 May 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The following are my reasons for decision and decision in this matter. 

4. This is an application for a review of a decision made by a delegate of the Minister for Immigration on 3 October 2018, to refuse to grant the visa applicant a visitor Class FA visa under section 65 of the Migration Act.

5. The visa applicant is Ms Xiu Lin and she applied for the visa on 4 September 2018.  At the time, the visa application was lodged, Class FA contained one subclass, that is subclass 600, which has four streams attached to it.  In this case, the visa applicant applied for the visa, seeking to satisfy the primary criteria in the sponsored family stream. 

6. The criteria for a subclass 600 visa are set out in Part 600 of schedule 2 to the Migration Regulations. Relevantly to this case, they include clause 600.211, which requires the visa applicant to satisfy the Minister that they genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 600.211, because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

8. The review applicant, Mr Mouhua Lin, who is the 34-year-old brother of the 35-year-old visa applicant and the sponsor for the visa application, appeared before the tribunal by conference telephone to give evidence and present arguments.  The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages and the review applicant was not represented in relation to the review.

9. The issue in this case is whether clause 600.211 is met.  This 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.  Also, the tribunal must consider whether the applicant intends to comply with the conditions to which the subclass 600 visa would be subject and finally, any other relevant matter.

10. In the present case, the visa applicant in the application, claimed that they seek the visa for the purpose of visiting their brother and his other family members.  I note the review applicant advised me that since the application was made, he has purchased a new property, a four-bedroom home, where he lives with his wife and two children, being six years old and 11 years old. 

11. I am satisfied that the purpose of the visa applicant seeking to visit her brother and his family in Australia is a purpose for which a visa in the sponsored family stream may be granted. 

12. Turning firstly to clause 600.211(a) and considering whether the visa applicant has complied substantially with previous conditions of previous visas, I firstly note that the visa applicant has never travelled to Australia and the tribunal was advised that she has also never travelled internationally.  Having said that, I consider the travel of other family members to visit the review applicant is significant in demonstrating how this family uphold visa conditions and compliance with migration requirements and the tribunal has accessed the visa applicant’s parents’ movement records; which demonstrate that since 2017, they have visited Australia six times and sometimes they have come together and sometimes they have travelled separately.  I also note that on 13 November 2018, they were granted a long-term, three-year tourist travel visa to Australia. 

13. I also note that the visa applicant’s and review applicant’s other sister has also visited Australia on four occasions and note that two of her children are living at the home of the review applicant whilst studying in Australia.  I acknowledge this is extensive compliant travel and compliance with visa conditions demonstrated by other family members of the applicants.  I asked the review applicant why this travel had begun in 2017, when he came to Australia firstly in 2010.  He responded by advising that he was on a student visa up until 2016 and this is why the family members began to visit him from 2017.  The significant point here is this is demonstrably extensive compliant travel by other family members. 

14. Now turning to subclause 600.211(b) and the tribunal has considered whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject.  These conditions may include: condition 8101, that the applicant must not work in Australia; condition 8201, that the visa applicant must not engage in study or training in Australia for more than three months; condition 8503, that the visa applicant is not entitled to a substantive visa, other than a protection visa, while remaining in Australia; and condition 8531, that the visa applicant must not remain in Australia after the end of the permitted stay.

15. Turning firstly to the visa applicant’s employment, the review applicant advised the tribunal that their employment stated in the visa application has now ceased due to the COVID-19 restrictions, but the tribunal does not consider in the circumstances of this case, the visa applicant’s current lack of employment will influence their intention to remain in Australia or otherwise. 

16. The tribunal is satisfied that, as acknowledged in the application, the visa applicant has a husband and two children, nine and five years old and this is a significant incentive for her to return to her immediate family members, should she come to Australia.  There is no evidence before the tribunal to suggest that the visa applicant’s relationship is unstable, and she would have any reason to seek employment or further relationships or further visa pathways on coming to Australia.

17. Finally, I note that the visa application was made along with an application for the applicants’ mother to travel to Australia together.  The review applicant advised me that his mother did not travel at the time, which was around the time of this visa refusal, because they are waiting for the visa applicant’s application to be approved, so that they can travel together. 

18. In my view, this arrangement is consistent with an intended temporary stay in Australia.  The applicants’ mother has a significant family reason to return and has a long-established compliant migration history, whom the visa applicant proposes to travel with and the visa applicant herself has significant incentive in her family members, being her husband and two young children, to return to China.

19. I found the review applicant to be a genuine witness and consider the migration records of the other family members speak for themselves.  This is obviously a family that has significant connections in both China and Australia, and it would make no sense for the visa applicant to not comply with her visa conditions, as all the other family members appear to have done.

20. The tribunal has considered the various matters before it and on balance, is satisfied that the visa applicant will comply with the conditions and genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted and therefore, the formal decision of the tribunal is as follows. 

21. The tribunal remits the application for a Visitor (Class FA) visa, with the direction that the visa applicant meets the following criteria for a subclass 600 Visitor (Class FA) visa, that is, clause 600.211 of Schedule 2 to the Regulations and that concludes my reasons for decision and decision in this matter.

    DECISION

22. The tribunal remits the decision under review with the direction that the applicant meets clause 600.211 of Schedule 2 to the Regulations for a subclass 600 Visitor (Class FA) visa.

    Ian Garnham
    Member