Ren (Migration)

[2021] AATA 4250

Ren (Migration) [2021] AATA 4250 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jianming Ren

VISA APPLICANTS:  Mr Huisheng Ren
Ms Pinzhu Ding

CASE NUMBER:  1920489

HOME AFFAIRS REFERENCE:               BCC2019/3212507

MEMBER:Rosa Gagliardi

DATE:20 August 2021

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 20 August 2021 at 1:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – migration history – sponsor’s previous unlawful presence in Australia – intention to comply with visa conditions – applicants’ ties to China – 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 Home Affairs on 11 July 2019 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 26 June 2019. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas on the basis that the visa applicants did not meet cl 600.211.

5. The review applicant/the sponsor appeared before the Tribunal on 11 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants in China by telephone.  Ms Yunchao Lai, the sponsor’s spouse also gave evidence.  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 registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

9. In the present case, the visa applicants seek the visas for the purposes of visiting their son and family in Australia.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   cl.600.211(a)

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

    
    

    (cl. 600.211(a)).

11. The sponsor gave evidence at hearing that his parents had previously travelled to Taiwan some twenty years ago as they have relatives there.  The Tribunal acknowledges this one-off travel event and there is no information before it to suggest that the applicants did not abide by their conditions on that occasion.  Nonetheless, the applicants do not have a travel history demonstrating a pattern of visits to countries like Australia. 

12. On the basis of the applicants’ minimal travel it is difficult to establish that they have a consistent history of compliance with any visas, particularly as it relates to travel to Australia or like countries.  This matter of itself, is not, however, determinative of the review.

13. The sponsor was honest at hearing in stating that he had come to Australia in 2005 as a student but had not completed his studies because his parents were unwell, and he had difficulty learning.  He advised the Tribunal that he was unlawful for ten years before regularising his status when he married his partner and gained a spouse visa in 2015.  The sponsor’s wife stated at hearing that the applicant was earning an income while unlawful.  Asked why he had not sought the assistance of the authorities to maintain a lawful presence in Australia, the applicant stated that he was young and did not know what to do.

14. The Tribunal finds it difficult to accept that the applicant, during the course of ten years, was not able to seek advice from a migration agent or the Department of Home Affairs about his status in Australia.  Instead, it is more likely than not that it suited him to be unlawful to continue working undetected by the authorities.  It was only when it suited his purposes that he emerged from his unlawful status to apply for a Partner visa.  The Tribunal considers that the applicant’s conduct in Australia demonstrates he has had minimal regard for Australia’s immigration rules and was ready to flout them to suit his own purposes.  In terms of how this matter relates to whether the sponsors’ parents have a genuine intention to stay temporarily in Australia, that is a separate issue and it is incumbent on the Tribunal to assess the visa applicants’ intentions in isolation of the sponsor’s previous migration transgressions.  Having said this, the Tribunal can not rule out that the sponsor might influence his parents’ intention if the sponsor were to consider that the visa applicants would have a higher quality of life in Australia.

15. The sponsor’s wife stated that the sponsor was now a more mature person.  He had a successful business and was responsible.  Previously he had been young and did not know what to do about his unlawful presence in Australia.  Ms Lai herself, however, had given evidence that she had come to Australia as a 17 year old and it can be presumed that, if she was not aware of the sponsor’s unlawful status when she met him prior to marriage, she did not enquire or assist him to present himself to the authorities until they lodged the Partner visa. 

16. The Tribunal is not satisfied that if the sponsor were minded to encourage his parents to breach their visa conditions, they would not do so.  This is particularly so as based on the sponsor’s experience there had been no adverse consequence for his serious breach, and further, ultimately managed to secure a permanent migration outcome due to his actions.

17. The Tribunal notes that the Departmental decision states, “I have considered the support offered by his family, documents provided in support of this application, and the immigration history of the applicant and family”.   The sponsor categorically stated that he had never sponsored siblings or other family members to Australia, let alone anyone who had an adverse migration history.  He stated that he had a nephew in Australia who was studying but as far as the sponsor was aware, his nephew held a valid visa.  As the Tribunal stated at hearing, it is prepared to accept that no other family, apart from the sponsor, has a migration history of concern.

18. Overall, the Tribunal can only place limited weight on the applicants’ previous migration history.

    cl.600.211(b)

19. 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:

    ·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.

20. The sponsor and applicants stated that they were farmers in Fujian Province.  They had subsisted from their farm produce, being sweet potatoes and peanuts.  They had two properties; one in the village and one in the more urban area and they lived between the properties. When they tendered the crops, they lived in the village property.  The Tribunal for the purposes of the review accepts that the visa applicants have two properties and made a living from farming.

21. The sponsor and applicants confirmed that the applicants were now retired and lived off their savings and continued to earn some income from the crops they grew.  They were also in receipt of 500 RMB (AUD107.73) each per month as a pension from the government, meaning the total household pension received is 1,000 RMB.  The Tribunal considers these rates are quite low but acknowledges that the parties are not arguing that they are only living on these government payments alone. 

22. In support of their claims that the applicants are living a comfortable life in China, the visa applicants have submitted the following:

    ·What appears to be details of term deposit account dated 27 May 2019, due to expire on 27 May 2022, totalling 117,388 RMB (AUD25,265.67);

    ·Term deposit for three years, dated 3 August 2021, with a total of 160,000 RMB (AUD 34,437.14);

    ·Various other accounts showing smaller amounts and contributions towards medical insurance;

    ·License for the applicants to operate their enterprise from 2015 License for the applicants to operate their enterprise from 2015;

    ·The sponsor’s and his wife’s bank account details showing he has accumulated a sum of AUD88,024.18; and

    ·Evidence of the sponsor’s business and earnings.

23. The Tribunal has considered the evidence submitted.  In particular, the Tribunal has had regard to the applicants’ various accounts holding minor deposits.  From these it appears that the applicants do receive a pension in total of 1,000 RMB per month and the Tribunal accepts that this is the case.

24. In terms of the large term deposits, the Tribunal has concerns as to the origins of the sums, when considered that the applicants’ passbooks demonstrate a limited capacity to save and generate significant funds.  The Tribunal takes into account that the visa applicants’ farming business may have been more profitable when they both worked on a more full-time basis, however, with little evidence of how the applicants were able to accumulate large savings, the Tribunal has concerns that the funds may have originated from elsewhere and are not representative of the applicants’ true ability to save.  This is particularly in light of the other information submitted by way of passbooks showing withdrawals and deposits, leaving little in the way of savings.  At hearing the Tribunal asked the first-named visa applicant whether the sponsor helped them financially at all and he responded that their son offered to help but that they were not in need as they lived a comfortable life, and they refused such assistance.  On the basis of the evidence, however, the Tribunal queries whether this is indeed the case.

25. The sponsor and his wife, Ms Lao, in their letter to the Department (undated) attempt to reassure the immigration authorities that they will take care of the applicants’ financial needs in relation to the visit and state they will:

    ….cover the expenses during their visit in Australia, which includes international return air tickets, local transportation, accommodations, and all other related expenses.  My parents also have a bank statement attached with her application to show they have enough money to support their visit to Australia….

26. At hearing the sponsor stated that his parents wanted to stay for around 3 months while the first-named visa applicant stated that they wanted to stay with the sponsor and his family for 6 months.  The Tribunal does not draw an adverse conclusion from any inconsistency in the evidence provided to the Tribunal but notes that the applicants are prepared to leave their homes, other children, and grandchildren, as well as their farm for a significant period.  This leads to questions about how attached they are to their lives in China. 

27. It was argued that the applicants were similarly attached to their other three children and several grandchildren who were settled in China and lived close by.  It was simply that they had not seen the sponsor’s two children in person; only the elder child and were desirous of holding them.   The sponsor also missed his parents very much.  The Tribunal has no doubt that the applicants have a strong bond with their children and grandchildren in China also.  However, were the applicants able to achieve a migration outcome in Australia it would mean that they would have access to good social services and health care and together with the sponsor’s solid financial position, a good quality of life into their old age.

28. The sponsor also stated that he wanted his parents to look after his two children as his wife was going to get more involved in the business.  As put to the sponsor at hearing, however, if his wife were to work for the business in a greater capacity on a longer term basis, then having his parents here for 3-6 months would not necessarily assist their longer term need with help looking after their two children.

29. The Tribunal has considered the applicants’ ties to China but is not persuaded that these are enough to outweigh the concerns the Tribunal has about the applicants’ intention to stay in Australia temporarily for the purpose for which the visa is granted.  This is particularly so as each of the applicants would be travelling to Australia with their significant other – their spouse – and could severe their financial ties to China without too much difficulty.  In terms of their two homes, for example, these could be sold.

    cl.600.211(c)

30. The Tribunal has also considered all other relevant matters (cl 600.211(c)).   The Tribunal accepts that the sponsor is financially able to support his parents in Australia for 3 months and if necessary, 6 months.  And even though the Tribunal is concerned about the source of the funds held in term deposits by the applicants - given the Tribunal is not aware as to how these were generated, the evidence shows the visa applicants do have access to some funds. 

31. The Tribunal also accepts that the sponsor is prepared to pay a bond to secure the visit.  Having considered the sponsor’s financial situation, however, the Tribunal is not satisfied that a bond would necessarily dissuade the applicants from seeking a migration outcome onshore if it suited them to do so if gaining entry into Australia is a priority. 

32. In passing, the Tribunal notes that the sponsor advised the Tribunal, when asked at hearing, that his parents had paid a fine for being in breach of the 1 child policy.  When the sponsor was born, he already had 3 older siblings and the 1 child policy was in effect at that time.  The sponsor stated that his parents had paid their financial penalty and no further action was taken by the government.  The Tribunal accepts that this is the situation and that the applicants are no longer of adverse interest to the government in respect of having had more than one child.  This is particularly so as China in recent years has relaxed the 1 child policy in any event.[1]

    Conclusion

    [1] BBC News, China Allows Three Children in Major Policy Shift, China allows three children in major policy shift - BBC News, accessed on 20 August 2021.

33. For the above reasons overall, the Tribunal is not satisfied that the visa applicants genuinely intend 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

34. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Rosa Gagliardi
    Member