Lin (Migration)

[2018] AATA 3167

Lin (Migration) [2018] AATA 3167 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xiang Lin

VISA APPLICANT:  Mr Hongshui Lin

CASE NUMBER:  1808022

DIBP REFERENCE(S):  03655035

MEMBER:Adrienne Millbank

DATE:2 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 02 August 2018 at 9:37am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream –Genuine temporary entrant – Family members previously breached visa conditions – More close family members in Australia than China – Incentives to remain in Australia – Practice and procedure – Joint hearing of review applicant’s parents – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.221, 600.222, 600.611

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 22 March 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 is a Chinese national born in Fujian Province in 1961 and aged 56 at the time of decision. He applied for the visa on 20 March 2018, for a three month period from 18 May – 17 August, for the purpose of visiting, with his wife, his son and daughter-in-law at the time of the birth of their second child, and also visiting his sister-in-law and her family. At the time of decision the applicant indicated that he intended to come in August, when his son and daughter-in-law’s second child is due, and to stay for a period of from one to three months. 

3. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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. The Delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The Delegate was not satisfied that the visa applicant was a genuine visitor; that he intended to conduct a compliant visit and return to China within visa validity. The Delegate considered the immigration history of the visa applicant’s relatives, on the grounds that this was directly relevant to the visa applicant’s intentions.  Departmental records showing a previous member of the visa applicant’s family had not complied with the conditions of a visa raised concerns with the Delegate as to whether the visa applicant would comply with his visa conditions, and the applicant did not provide sufficient evidence to satisfy the Delegate that he intended to return to China before the expiry of the visa.

6. The review applicant appeared before the Tribunal by video on 20 July 2018 to give evidence and present arguments. As the applicant’s wife was also appealing the Delegate’s decision to refuse her application for a Visitor visa, to visit for the same purpose and for the same period, the Tribunal organised a joint hearing. The review applicant confirmed at the outset of the hearing that he agreed to a joint hearing of both of his parents’ review applications.  The Tribunal received oral evidence from the visa applicant and his wife in China by phone, as well as from the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The Tribunal advised the review applicant, pursuant to s.359AA of the Act, that it had information that would be the reason or part of the reason for affirming the decision under review, and that this information comprised the record of decision, a copy of which was not provided to the Tribunal by the review applicant; Departmental records of the visa applications and outcomes of the review applicant; and the movement records of the review applicant. The Tribunal advised the review applicant that this information was relevant because it suggested that the applicant might, like him, not comply with the temporary stay condition of a visa. The review applicant was advised that he could seek an adjournment and consult with his representative when questions were asked or issues raised based on this information. The review applicant did not seek an adjournment, but obtained advice and assistance from his representative during the hearing.

8. The review applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his son and daughter-in-law at the time of the birth of their second child. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Compliance with visa conditions

12. 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)).

13. The visa applicant has not entered Australia previously. He applied for a Visitor visa in 2017, which was refused on the grounds of insufficient funds.

14. The applicant provided evidence that he travelled to countries in the region, Singapore, Hong Kong and Malaysia, in the early 2000s, when working as project manager for a construction company. At hearing he claimed that he also travelled to Denmark, for around a week, for business purposes. The Tribunal accepts that the applicant has travelled to other countries for work purposes and that he complied with entry and stay conditions on those occasions, and gives this some weight. The Tribunal notes however that the circumstances of travel were different and the applicant did not have similar incentives to overstay. The Tribunal further notes that the applicant is approaching retirement, that he intends to travel to Australia with his wife, and that the close family members they intend to visit are settled permanently in Australia.

15. 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

16. The visa applicant indicated at the time of application that he did not intend to engage in study or training in Australia; that his intention is to attend his new grandchild’s birth and undertake tourist activities with his family. He indicated at hearing that he does not intend to work in Australia. There is no information before the Tribunal to indicate that the applicant intends to work in Australia. The Tribunal accepts that the visa applicant does not intend to work or study in Australia during the validity of a Visitor visa.

    All other matters relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c))  

17. Departmental records show that the review applicant, the applicant’s son, first arrived in Australia on 17 June 2006 on a Student (Subclass 571) visa, valid to 15 March 2009. He did not attend classes from 2007, and his visa was cancelled. He remained unlawfully in the country for eight years.  He was granted a Bridging visa C in association with his Partner visa application lodged in July 2015. The review applicant at hearing explained that he had to drop out of his studies because there was a downturn in the fortunes of the company his father worked for, and his father could no longer afford to pay for his tuition and upkeep in Australia. He stated that he was reluctant to return home as a student drop-out, and for this reason remained and worked illegally.

18. The review applicant was granted an onshore Partner (Residence) (BS) (Subclass 801) visa on 1 February 2018. His representative at hearing advised that the Schedule 3 requirements which would have applied because the review applicant was not the holder of a substantive visa, were waived, for the compelling reason that at the time of decision the review applicant and his wife had a child. The Tribunal asked the review applicant how his aunt, his mother’s sister, came to settle in Australia. He advised that she migrated to Australia; that he thought that she visited and that she was subsequently sponsored by her son, his cousin.

19. When the Tribunal asked the applicant how his situation differed from when he applied in 2017, unsuccessfully, for a Visitor visa, he stated that there has been no change in his situation. The review applicant argued that his father’s situation is different because he is now is the owner and manager of a kitchen appliances and utensils business, to which he would need to return. The applicant advised that his wife has not been employed in China; that she does not speak Mandarin or English, and for this reason she will feel self-conscious in Australia and return to China with him. He also advised, however, that he is approaching retirement; that his daughter in China is stepping into his management role in the kitchen business; and for this reason he is flexible regarding the time he and his wife might stay in Australia on a Visitor visa.

20. Regarding the applicant’s financial situation, evidence was provided in the form of a Personal Certificate of Deposit that the equivalent of AUD 30,000 was deposited into a Bank of China account in the applicant’s name on 2 March 2018. When asked where these funds came from, the applicant advised that they were transferred from his other bank accounts. A statement of transactions from another bank account was provided, in Mandarin. At hearing, the review applicant advised that the balance in this account as at 17 September 2017 was around AUD 500.  On his application form the applicant stated that besides the deposit of $30,000, he owns, with his wife, a residential property in Fu Qin city worth around AUD 200,000.

21. In his letter of invitation the review applicant stated that he and his wife would cover all the expenses associated with his parents’ visit, including air fares. Evidence was provided that the review applicant and his wife have both been in employment, the review applicant as a plasterer and his wife as a nurse; that they have around $5000 in their joint operating account; that the review applicant has around $18,000 in his business account; and that the parties own a property in Box Hill in Victoria, which they rent out. At hearing the applicant stated that he intended to pay for his and his wife’s airfares.

22. The Tribunal accepts that the review applicant and his wife, and the applicant and his wife, have sufficient funds to cover the cost of a proposed visit for up to two months. The Tribunal does not accept, however, on the evidence provided, that the financial situation of the applicant and his wife is such as to provide an incentive for them to return to China.

23. The applicant advised that he is nearing retirement and does not intend to continue to manage the kitchen business. For this reason, the Tribunal does not accept that his involvement in the business is an incentive for him to return. The Tribunal accepts that the applicant and his wife own residential property, but notes that they could sell this property or leave it for their daughter and her family. The Tribunal notes that the applicant and his wife have more close family members — their son and daughter-in law and their soon-to-be two young grandchildren, and the applicant’s wife’s sister and her husband and son — in Australia than in China. The Tribunal further notes that the review applicant at hearing stated that his parents are close to his daughter, who spent six months with them, as a one-year-old, when his wife returned to work.

24. At the time of application the review applicant stated that he intended to show his parents around Margaret River and Perth city and ‘in a future visit’, Queensland and Sydney. At hearing, the applicant stated that his son was intending to take him to visit Melbourne and Canberra. When this was put to the review applicant at hearing, he stated that the family had not yet decided where they would go. The Tribunal accepts that the stated purpose of the visa applicant and his wife’s intended visit is to spend time with family.

25. The Tribunal has considered the circumstances of the applicant and his wife, and the circumstances of the review applicant, including his immigration history. The review applicant argued that his father’s application for a Visitor visa should not be treated adversely on account of his own failure to comply with the conditions of his Student visa. The Tribunal acknowledges this argument. The Tribunal finds, however, having considered the applicant’s intentions and situation, that his incentives to return to China are outweighed by his incentives to remain in Australia.

26. For the above reasons 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

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

    Adrienne Millbank
    Member