Liu (Migration)

[2019] AATA 1528

Liu (Migration) [2019] AATA 1528 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shuaijun Liu

CASE NUMBER:  1805220

HOME AFFAIRS REFERENCE(S):           BCC2018/557396

MEMBER:Ian Garnham

DATE:1 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2019 at 4:00pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – immigration history – ample opportunity over past 7 years to conduct tourist activities – buy time to apply for a work visa – business related activity – not a valid purpose – decision under review affirmed

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 February 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 applied for the visa on 1 February 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 Tourist 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because based on the visa applicant’s migration history they were not satisfied that he intended staying temporarily in Australia for the claimed purpose (tourism).  

5. The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Background:

10. The visa applicant first came to Australia on a subclass 573 Higher Education Sector visa on 17/04/2012.  On 16/10/2014 and then 14/04/2015 he was granted further subclass 573 Higher Education Sector visas.  On 27/08/2015 he was granted a subclass 600 Tourist visa and on 01/02/2016 he was granted a subclass 485 Temporary Graduate visa that ceased to have effect on 01/02/2018.  On this day, the visa applicant lodged this application and also attempted to lodge a nomination application for a subclass 457 application.

11. With the Tourist visa application the visa applicant requested a 1 month further stay (until 28 February 2018) and stated that his reason for the further stay request would be provided.  However, no other reasons for the extension of stay were provided.

12. In a submission to this tribunal[1] the visa applicant said that this visa application was only made because he was unable to lodge a subclass 457 visa application by the required date (01/02/2018).  He said that he was unable to lodge this application because, through no fault of his own, his Immi account was locked out on this day.

    [1] At FF:20-21 (AAT)

13. When he was unable to lodge this application he instructed his registered migration agent to lodge a subclass 600 tourist visa instead.  He claims he did so for 2 reasons:

    · To remain lawful

    · Because he wanted to take a break, and conduct tourist activities in NSW, as he had been working hard since he had most recently returned to Australia in late November 2017 

14. Therefore at the time of the initial application the visa applicant claimed that the purpose of the visa application was to conduct tourism activities in Australia.

15. In the present case, some 15 months later, the visa applicant is again stating that if the visa is granted he will cease working and support himself from his savings.  At that time he also says that he will apply for a subclass 482 Temporary Skill Shortage visa.

16. The initial claimed purpose (conducting tourism) is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222. 

17. However the more recent purpose, to buy time, to apply for a work visa, is arguably a business related activity and not a valid purpose for seeking a Tourist visa (cl.600.221(b)).

    cl.600.211(a):

18. 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.

19. In this case, as outlined at paragraph 10 above, the visa applicant has previously been granted 5 substantive visas since first coming to Australia in April 2012.  There is no information before the tribunal that suggests he has failed to comply with the conditions of these visas.

    cl.600.211(b):

20. 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 (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

21. The visa applicant has candidly admitted that the reason he is seeking to remain in Australia is to continue to work in his own company, Flybee Pty Ltd.  He claims that he currently has work rights and seeks to be granted the tourist visa so that he can cease working while he lodges a subclass 482 visa application.

22. There is no information before the tribunal to indicate that the visa applicant is or has been prevented from making such an application in the last 15 months.  All of the information suggests that the visa applicant is seeking this visa so that he can continue working and not to conduct tourist activities.  Based on the migration records of the visa applicant he has had ample opportunity over the last 7 years to conduct tourist activities.

    cl.600.211(c):

23. The Tribunal has also considered all other relevant matters.

24. After the hearing the visa applicant submitted various documents to the tribunal[2] discussing and confirming their claim that they were prevented from lodging a subclass 457 visa application on 1 February 2018 due to Departmental internet problems.  They further contend, as discussed above, that because of this failure they had no alternative but to lodge this subclass 600 Tourist visa application.

    [2] At FF:22-45 (AAT)

25. If the visa applicant has been disadvantaged, through no fault of his own, it is open to the visa applicant to apply to the Minister, pursuant to section 351 of the Act, to apply a discretional decision that is more favourable to the applicant in the circumstances of the case.  If the visa applicant has been so disadvantaged in this case, due to an administrative error by the department, this avenue to redress the harm he has arguably suffered is available to them.

26. However based on the information before me, I see no reason why the visa applicant has been unable to apply for a more appropriate visa to meet their requirements, either before this application was made or in the intervening 15 months.  It is clear that the visa applicant is not seeking the subclass 600 visa for tourism purposes or that they intend to remain in Australia on a temporary basis.

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.

    Ian Garnham
    Member