Liu (Migration)

[2020] AATA 2983

Liu (Migration) [2020] AATA 2983 (19 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zipeng Liu

VISA APPLICANT:  Mr Xinhua Liu

CASE NUMBER:  1904303

HOME AFFAIRS REFERENCE(S):          BCC2018/5534729

MEMBER:Joseph Lindsay

DATE:19 May 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 19 May 2020 at 12:56pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – applicant’s previous visitor visa refusals – previous permanent visa application – business owner in China – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 30 January 2019 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 applied for the visa on 9 December 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.

3. 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.

4. The review applicant appeared before the Tribunal on 15 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

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

8. 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)).

9. The Tribunal is not aware whether the visa applicant has complied substantially with the conditions of the last substantive visa held and therefore places no weight on this issue.

10. 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.

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

12. In the hearing, the Tribunal asked the review applicant why he wanted his father to have a visitor visa to come to Australia. In response he indicated that he had not seen his father for 3-4 years, but then he indicated he had been back to China to see his father.

13. When asked when he first came to Australia, the review applicant responded that he first came to Australia in June 2014 to study, but that he never subsequently completed his studies.

14. The review applicant indicated that he was now a permanent resident because he came to Australia with his mother in 2016 when he was a minor. He indicated that his mother cares for his sister, who is 12 years old, at home.

15. When asked what family his father had in China, the review applicant responded that his father had 2 brothers and 1 sister, and also his father’s mother was in China.

16. The review applicant then indicated his parents divorced in 2015, but that his mother re-partnered to his step-father, Vixiong Wu.

17. The review applicant said his father owns a manufacturing factory in China, and that the factory produces transformers and electrical cables.

18. When asked if his father had previously been refused for a visitor visa, the review applicant said yes and indicated that his father had previously been refused for a visitor visa 3 or 4 times. When asked why his father had previously been refused for a visitor visa, the review applicant indicated that the Department thought his father might stay in Australia unlawfully, but the review applicant assured the Tribunal his father would never do anything like that because his father owns a factory in China.

19. When asked whether his father had lodged a Subclass 143 parent visa, the review applicant said yes. When asked if his father had lodged a Subclass 143 parent visa in 2018, he said yes. When asked whether the Subclass 143 parent visa was either a temporary visa or permanent visa, he said it was a permanent visa.

20. The Tribunal put to the review applicant that the object of the visitor visa was that the visa applicant genuinely intended to stay temporarily in Australia, and put to the review applicant that, subject to his response, the Tribunal may find that the visa applicant does not genuinely intend to stay temporarily in Australia because he had applied for a permanent visa. In response the review applicant said that his father will have to wait for years to get his permanent visa but that he wanted his father to come and stay with him. The review applicant said that his father would not do anything illegal, and that his father just wanted to come and travel with him and sister.

21. When the Tribunal asked the applicant’s representative whether she wanted to comment, she said ‘not really.’

22. The Tribunal attempted to call the visa applicant but despite initially making contact with him the Tribunal lost contact with the visa applicant. The review applicant indicated that he was happy for the hearing to be conducted in the absence of the visa applicant.

    Findings

23. The Tribunal has carefully considered the information made available to the Tribunal.

24. The Tribunal accepts that the visa applicant has had previous applications for a visitor visas refused, and the Tribunal places high weight on this against the visa applicant.

25. The Tribunal accepts that the visa applicant has made an application for a Subclass 143 parent visa – a permanent visa. The Tribunal places high weight on the finding that the visa applicant has made an application for a Subclass 143 parent visa – a permanent visa. The Tribunal notes the review applicant’s response that his father will have to wait for years to get his permanent visa but that he wanted his father to come and stay with him. The Tribunal notes the review applicant’s response that his father would not do anything illegal, and that his father just wanted to come and travel with him and sister.

26. In balancing the above considerations, the Tribunal finds that whilst the visa applicant owns a factory in China and has some family members in China, the visa applicant’s application for a permanent visa strongly indicates to the Tribunal that the visa applicant does not genuinely intend to stay temporarily in Australia.

27. 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

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

    Joseph Lindsay
    Member