Lin (Migration)

[2023] AATA 3877

Lin (Migration) [2023] AATA 3877 (10 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Enfa Lin

VISA APPLICANT:  Mr Qinfu Lin

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  2213729

HOME AFFAIRS REFERENCE                BCC2022/2451559

MEMBER:L Symons

DATE:10 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 10 November 2023 at 5:33pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – family visit – genuine temporary entrant and compliance with conditions – incentives to remain or return – work and property – inconsistent evidence about work leave arrangements and finances – previous visa refusal not declared – wife’s contributory parent visa with applicant listed as non-migrating family member – plan to travel together on different visas – review applicant’s previous visa cancellation and period as unlawful non-citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
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 5 September 2022 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 to the Department of Immigration (the Department) for the visa on 30 June 2022. 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 visa 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 he/she was not satisfied that he genuinely intends on staying temporarily in Australia for the purpose for which the visa is granted. On 16 September 2022, the review applicant, who is the son of the visa applicant, applied to the Tribunal for a review of that decision.  

5. The review applicant appeared before the Tribunal, via video, on 20 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Xiaodan He, the visa applicant’s daughter-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The review applicant was represented in relation to the review by his migration agent, Mr Stanley Chan, who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Tourist stream may be granted.

10. 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.

11. The records of the Department indicate that the visa applicant has not previously held a substantive in Australia.

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

13. In considering whether the applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that he is married and has three children aged almost 8 years, 6 years and 1½ years. He is employed in internal renovation and works on a construction site in Maroubra. He earns $1,500.00 per week. He owns a house and two cars. When asked whether he has any savings, he responded that he has $10,000.00 or $20,000.00 or something. When asked whether he has any debts, he responded no. He then stated that he has a mortgage of over $600,000.00. His wife is not in paid employment.

14. The review applicant gave evidence that the visa applicant works in the construction industry. He is a contractor for road management. He owns a house and cars. He does not know how much he has in savings. He has no debts. He will pay for his own airfare and living expenses in Australia. He will provide the visa applicant with accommodation in Australia. When asked how much money the visa applicant is planning to bring with him to Australia, he responded that he did not know. The visa applicant is not planning to work or undertake any study or training in Australia.

15. The visa applicant gave evidence that he works in project management. He will pay for his airfare and living expenses in Australia. When asked how much money he is planning to bring with him to Australia, he responded 50,000 RMB or 60,000 RMB. When asked how much he has in savings, he responded 50,000 RMB. When asked whether he is planning to bring his life savings with him to Australia, he answered yes. He has no debts. He will live with the review applicant in Australia. He is not planning to work, study or undertake any training in Australia.

16. The Tribunal has considered supporting documents provided to the Department and the Tribunal. This includes a Title Deed issued on 20 October 2000 in relation to a property in the visa applicant’s name, a bank statement dated 10 June 2023 in relation to a term deposit of 50,000 RMB which expired on 3 September 2023, bank statements, a Certificate of Employment dated 8 June 2023 confirming the visa applicant’s employment, monthly salary of 17,000 RMB and that he had approved leave for three months and the visa applicant’s Marriage Certificate dated 7 November 1986.

17. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the proposed length and purpose of his visit to Australia. The review applicant gave evidence that the visa applicant wants to come to Australia for about one month as he has a job. When asked how much leave he gets from his job, he responded that it is not a leave arrangement. He will ask his brother in law to attend to the business so he can get four or five weeks off to visit them (in Australia). His brother in law works for the visa applicant.

18. This evidence is not consistent with the Certificate of Employment filed with the Tribunal which indicates that the visa applicant has been had approved leave for three months to travel.

19. The review applicant gave evidence that he last saw the visa applicant about 3 years ago when he went to China to visit him. When asked about the purpose of the visa applicant’s visit to Australia, he responded that he wants to visit him and his children. When asked what he is planning to do during his visit, he responded that he wants to play around and see the children. 

20. The review applicant’s wife, Xiaodan He, gave evidence that she wants the visa applicant to visit them. He has not met their last child. They have not been able to visit him. Her three children miss their grandfather and he misses them. They are looking forward to seeing each other. The visa applicant told her that he wants to see the Sydney Harbour Bridge and Opera House and do some sightseeing. He is looking forward to that.

21. The visa applicant gave evidence that he would like to visit Australia for four weeks. When asked how much leave he gets in his job, he responded that he can get one to two months as he is the chief manager. He works on a road project and is responsible for a part of that road. He is the “second boss”. This is not consistent with the Certificate of Employment filed with the Tribunal which indicates that he has been approved leave for three months to travel.

22. The Tribunal asked the visa applicant why he wants to come to Australia. He responded that he would love to see his son (the review applicant), daughter in law and his grandchildren. When asked what he plans to do during his time in Australia, he responded that he plans to visit the Sydney Opera House and visit his son, daughter in law and grandchildren. Since the Covid pandemic he has not been able to see them other than through video calls. He looks forward to doing that.

23. The Tribunal has also considered other relevant matters. The review applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 5 September 2022. It indicates that in his application for a Visitor visa he was asked questions about his immigration history including whether he had had a visa refused, cancelled, or if he had failed to abide by the conditions of a visa. He did not declare his previous immigration history in his visa application. On 5 May 2022, an attempt was made by the Department to contact him by telephone to provide him with an opportunity to comment on this adverse information. However, he did not answer the call.

24. During the hearing, Xiaodan He gave evidence that her husband was busy and she was the one who provided documents to support the visa applicant’s application for a Visitor visa. The visa application was prepared by a migration agent. They were asked a question about whether the visa applicant had previously made an application for a visa and she answered no. She thinks that may have been a problem. May be the visa applicant did not answer the call from the Department because of the prevalence of scam calls.

25. The Tribunal asked Xiaodan He why she stated that the visa applicant had not previously been refused a visa when he had, she responded that she forgot. His earlier visa application was in 2017. When the migration agent asked this question maybe she misunderstood the question. When asked whether she understood how important it is to be truthful in visa applications, she responded yes.

26. The records of the Department indicate that the visa applicant applied for a Visitor visa on 29 June 2017 and his visa application was refused on 6 July 2017. He then applied for another Visitor visa on 30 June 2022. In the visa application, there was a question about whether he had ever had a visa refused or cancelled and he answered no. The Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, and noted that this may lead it to the conclusion that the visa applicant or someone else on his behalf provided false information to the Department. The Tribunal noted that it may also find that the visa may not comply with visa conditions. He responded that he is not clear about something. His wife followed the migration agent’s advice. Maybe she misheard what he said.

27. The records of the Department indicate that the review applicant’s mother (and the visa applicant’s wife) has applied for a Contributory Parent (Migrant) (Class CA) (Subclass 143) visa. The visa applicant is listed as a non-migrating family member. In his application for a Visitor visa, he stated that he wanted to visit Australia with his wife. The Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, and noted that this may lead it to the conclusion that his mother has an intention to reside in Australia permanently and that his father may also have the same intention.

28. The review applicant responded that the visa application was prepared by his wife. He is not clear about those things. He believed that their applications were separate. He did not ask for clarification. His response does not address the issue raised with him.

29. Xiaodan He gave evidence that her mother in law’s visa application predates her father in law’s application for a Visitor visa by several years. In March or April 2022, their migration agent told them that her mother in law’s visa application had been approved and she had to arrive in Australia within a year. She then started to apply for a visa for her father in law so that both of them could visit at Christmas time. That is why she stated that both of them could visit together. The Tribunal accepts Ms He explanation for why the visa application indicates that the visa applicant wanted to visit Australia with his wife. However, this does not alleviate the concerns raised with the review applicant.

30. The Tribunal’s concerns are exacerbated by the review applicant’s evidence that the application fee for his mother’s Contributory Parent (Migrant) (Class CA) (Subclass 143) visa application was more than $5,000.00, his lawyer’s fees were more than $2,000.00 and the total cost for her visa was $50,000.00. In view of his evidence that he has savings of “$10,000.00 or $20,000.00 or something” and a mortgage of over $600,000.00 the Tribunal is not convinced that he had or has the financial capacity to pay for a Contributory Parent (Migrant) (Class CA) (Subclass 143) visa for the visa applicant as well. He has not provided the Tribunal with any documentary evidence in relation to his savings.

31. The review applicant is his parents’ eldest child and only son. The Tribunal raised this as an issue with him and noted that it may conclude that, as his parents are aging and his father nears retirement, they may wish to live with him. The Tribunal noted that his parents will be able to get good medical care in Australia. The Tribunal noted that it may conclude that these are incentives for the visa applicant to remain in Australia after the end of his permitted stay.  He responded that his mother has visited previously. She is not used to the way of life here. If he wanted his father to get a permanent visa he would have lodged an application for a permanent visa.

32. The Tribunal does not find this response to be persuasive. Despite his mother not being used to the way of life here as claimed, she still applied for and was granted a permanent visa. The Tribunal is not convinced that the visa applicant meets the requirements for a permanent visa other than a Contributory Parent (Migrant) (Class CA) (Subclass 143) visa and, for the reasons given above, is not satisfied that he has the financial capacity to pay for this visa application.

33. The visa applicant gave oral evidence that he had 50,000 RMB in savings and planned to bring 50,000 RMB or 60,000 RMB with him to Australia. When asked whether he was going to bring his life savings with him to Australia, he responded yes. The Tribunal put this information to the review applicant, pursuant to s.359AA of the Act and noted that this was not consistent with someone visiting Australia for a holiday. He responded that maybe he did not hear the question. In the Chinese context the word savings does not mean all the money you have. When the Tribunal pointed out that it asked the visa applicant about bringing his life savings, he did not respond.  

34. The Tribunal finds it implausible that if the visa applicant wanted to come to Australia for a month to visit his son and his family, live in his son’s house during that time, see the Sydney Opera House and the Sydney Harbour Bridge and then return to his home and job in China, he would bring his life savings with him. The Tribunal is of the view that this raises further concerns in relation to whether he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

35. The records of the Department indicate that the review applicant arrived in Australia on 22 May 2007 as the holder of a subclass 571 Student visa that was valid until 15 December 2009. However, that visa was cancelled and he thereafter remained in Australia as an unlawful non-citizen for almost 6 years until 12 February 2015 when he was granted a Bridging C visa. He was subsequently granted a subclass 820 Partner visa on 12 December 2016 and a subclass 801 Partner visa on 21 March 2018.

36. The Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, and noted that his immigration history indicates that he is someone who has no respect for Australia’s laws. The Tribunal noted that this may lead it to the conclusion that the visa applicant may be planning to do what he did and overstay his visa and that he is unlikely to do anything to ensure that the visa applicant complies with his visa conditions if he is granted a Visitor visa.

37. The review applicant responded that, at that point in time, he was young and playful and was hanging around with a group of friends. His family sent him money and that led to him just hang around. He did not do anything wrong. When asked whether he considered living in Australia unlawfully was not doing anything wrong, he responded that he knows it is not a good thing to do. He does not know why he did it at that time. His response exacerbates the Tribunal’s concerns.

38. The Tribunal has considered the pre-hearing submissions dated 13 June 2023 made by the review applicant’s migration agent and does not find them to be persuasive. In his submissions, he stated that the visa applicant “is in a solid marriage with his wife and has a loving family in China. He also has close family members, relatives, and friends residing in China. These strong family ties and commitments serve as an assurance that Mr. Qinfu Lin intends to return to his home country after his visit to Australia”. The Tribunal finds these submissions to be disingenuous in view of the fact that the visa applicant’s wife has been granted a permanent visa to live in Australia.

39. Having considered all the evidence and the submissions, the Tribunal accepts that the visa applicant owns a house, has a job and has 50,000 RMB in savings in China. The Tribunal accepts that the review applicant will provide him with accommodation in Australia. The Tribunal is of the view that the presence of his eldest child and only son, his three grandchildren and his wife in Australia are strong incentives for him to remain in Australia after the end of his permitted stay particularly if he also plans to bring his savings of 50,000 RMB with him. The Tribunal concludes that the incentives for the visa applicant to remain in Australia after the end of his permitted stay outweigh the incentives for him to return to China at the end of a holiday.      

40. 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

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

    L Symons
    Member

    
    

    ATTACHMENT
    600.211

    The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to: 

    a)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; and

    b)whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

    c)any other relevant matter.

    600.221

    The applicant intends to visit, or remain in, Australia:

    a)to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or

    b)for any other purpose that is not related to business or medical treatment.