Qian (Migration)

[2023] AATA 2808

Qian (Migration) [2023] AATA 2808 (24 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jun Qian

VISA APPLICANT:  Ms Haijing Jiang

REPRESENTATIVE:  Mr Wei Lin Shu (MARN: 0103008)

CASE NUMBER:  2214483

HOME AFFAIRS REFERENCE(S):          BCC2022/3535248

MEMBER:Paul Windsor

DATE:24 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations; and

·public interest criterion 4011.

Statement made on 24 August 2023 at 2:55 pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting husband and daughter – genuine temporary entrant and compliance with conditions – incentives to return or remain – employment and economic circumstances – freelance business – family commitments – caring for mother and husband’s parents – previous compliant travel – previous visa refusal not declared – completed application quickly answering ‘no’ to every question – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211(1), 600.231, Schedule 4, criterion 4011

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 Home Affairs on 16 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 for the visa on 31 August 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 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 (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 the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted. The delegate indicated that, in reaching this conclusion, she had considered the visa applicant’s economic circumstances and noted that the only evidence of her financial capacity provided was a bank deposit certificate. The delegate indicated she attached little weight to this document as evidence of the visa applicant’s financial means, and found the visa applicant does not have strong employment or economic incentives to return China at the end of her proposed stay in Australia. The delegate concluded that the visa applicant had not demonstrated sufficiently strong employment, economic, family or other commitments in China that would be sufficient incentive for her to return to China.

5. The review applicant appeared before the Tribunal on 24 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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 and his representative also attended the hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband and daughter in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. 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)).

10. The visa applicant has been granted six Visitor visas since 27 March 2012 and has visited Australia on thirteen occasions since she first arrived in Australia on a Visitor visa on             6 April 2012.  The most recent Visitor visa was granted on 20 December 2017 and permitted multiples entries for stays of up to three months for a three year period until 20 December 2020.  The visa applicant entered Australia on this visa on six occasions, most recently on        1 February 2020, departing on 26 March 2020.  There is no evidence before the Tribunal to indicate or suggest that the visa applicant has ever failed to comply with the conditions of the visas she has held.

11. 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.

12. While not raised in the delegate’s decision record, Departmental records indicate that the visa applicant made an application in Australia on 2 October 2019 for a combined subclass 820/801 Partner visa, sponsored by the review applicant. This was refused on 30 August 2022.  The Tribunal notes that, in her application for the current Visitor visa, made the day after the decision to refuse to grant her the subclass 820 visa, when asked if she has ever had a visa for Australia or any other country refused or cancelled, the applicant stated: ‘No’.  While again not raised in the delegates decision record, this means that the applicant is subject to public interest criterion (PIC) 4011 (pursuant to cl 600.213).

13. PIC 4011 provides that, if the applicant is affected by the risk factor specified in PIC 4011(2), the applicant must satisfy the Minister that, having regard to the applicant’s circumstances in the applicant’s country of usual residence, there is very little likelihood that the applicant will remain in Australia beyond the authorised period of stay. An applicant is affected by the risk factor if, during the period of 5 years immediately preceding the application, the applicant has applied for a visa for the purpose of permanent residence in Australia: PIC 4011(2)(a). As the visa applicant made an application for a combined subclass 820/801 Partner visa on 2 October 2019, PIC 4011 applies in her case.

14. The Tribunal discussed the nature of their relationship with the review and visa applicants at the hearing.  The indicated they are husband and wife, having married in Shanghai in January 2019.  The visa applicant indicated she first met the review applicant when she came to Australia on a tour in 2012 and their relationship developed from that time.  She said she got to know him through a friend.  The visa applicant indicated her daughter, who has been studying in Australia since 2018, and is currently undertaking an Arts degree at Macquarie University in Sydney, is not living with her husband but is in share accommodation with university friends.

15. The review applicant, who is an Australian permanent resident, indicated he first came to Australia in 2010.  He indicated he obtained permanent residence after being sponsored for a Partner visa by his former wife.  He indicated their relationship ended in 2016.

16. When asked if the review applicant ever sought to sponsor the visa applicant for a partner visa, the visa applicant indicated she made a partner visa application in 2019 which was refused.  When asked why it was refused, she said she returned to China because of the COVID-19 pandemic and associated lockdowns.  She indicated the application was refused because it was considered that her contact with her husband was insufficient to demonstrate that their relationship was genuine.  She commented this was because at the time neither of them could travel to be with the other.  She said she felt she had to return to China both because she had no medical cover for an extended stay in Australia and because she provides care both for her elderly mother (a 73 year old widow), who has significant health conditions and is unable to leave the house by herself, and for her husband’s elderly parents.  In relation to the latter, the review applicant indicated that his parents travel extensively, but stay with his wife sometimes when they are in Shanghai.  The visa applicant indicated that, when she travels outside of China she organises a live-in ‘female companion to care for her mother.

17. When asked why she did not state in the visa application that she had an Australia visa refused, the visa applicant indicated there were so many questions she just went through them quickly stating ‘No’ and did not realise there was one about a visa being refused.  The Tribunal accepts this explanation.

18. The visa applicant indicated that she made the Visitor visa application the day after her Partner visa was refused because she wanted to visit her husband and daughter as a sponsored visitor as she had not seen them face to face for a long time.

19. The Tribunal discussed with the review and visa applicants the mandatory conditions that would apply to the visa, if granted, and the implications of PIC 4011.  The visa applicant commented that her mother’s condition is not improving and that she only wants to visit Australia and then she will return to China to care for her mother.  She indicated that she understands she would not be able to make any other substantive visa applications while in Australia (other than for a Protection visa) and would be in breach on condition 8531 if she did not depart Australia within the stay period permitted by the Visitor visa.

20. In relation to condition 8101 the visa applicant indicated she has no need or intention to work in Australia.  She indicated that she previously worked as a sales manager for a cosmetic company but, at the time of the visa application, stated she was unemployed because she was stood down during the pandemic.  She indicated that she now runs a cosmetic business in Shanghai as a freelancer.  She submitted supporting documents to the Tribunal regarding her monthly revenues and client contacts.  At the hearing she indicated that, while her monthly income is variable, it averages around Y20-30,000 per month (approximately AUD4,300-6,450 per month).

21. In relation to condition 8201, the Tribuanl is satisfied that the applicant will not engage in study or training in Australia for more than 3 months.

22. Considering the available evidence, the Tribunal is satisfied that the visa applicant has strong financial (her business) and personal (her elderly mother, for whom, as an only child, she is the primary carer) ties to China.  The Tribunal is satisfied that the applicant will abide by the conditions of the visa and that, for the purposes of PIC 4011, there is very little likelihood that the visa applicant will remain in Australia beyond the authorised period of stay.

23. For the above reasons, the Tribunal is 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 met.  The Tribunal also is satisfied that there is very little likelihood that the visa applicant will remain in Australia beyond the authorised period of stay, and therefore finds that the requirements of PIC 4011 are met.

    DECISION

24. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations; and

    ·public interest criterion 4011.

    Paul Windsor
    Member