SHEN (Migration)

[2018] AATA 5833

SHEN (Migration) [2018] AATA 5833 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Melisa Shen

VISA APPLICANT:  Mrs Meijun Shen

CASE NUMBER:  1730387

HOME AFFAIRS REFERENCE(S):           BCC2017/2276091

MEMBER:Moira Brophy

DATE:14 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2018 at 11:46am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – does not intend to stay temporarily in Australia – visiting daughter – family in Australia – previous visa applications rejected – decision under review affirmed

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

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 27 September 2017 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 27 June 2017. 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 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 applicant intends to stay temporarily in Australia for the purpose of the visa.

5. The sponsor (who is the review applicant in this matter); Ms Melisa Shen appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mrs Meijun Shen.The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   BACKGROUND

7. The applicant is a 63-year-old national of China. She is married and has two daughters; one of her daughters (the sponsor) resides in Australia. In her application for a visitor visa, she stated that she is retired and her travel will be funded by her pension payment and savings, the sponsor will also support the applicant during her stay in Australia. She has previously been to Australia three times, in 2013 and twice in 2014. In terms of her immigration history, she lodged an application for a Combined Partner (subclass 309/100) visa on 31 December 2014 following her marriage to an Australian permanent resident and that application was refused by the Department on 16 March 2016. She applied for a review at the Tribunal on 23 March 2016 and on 16 February 2017 the Tribunal affirmed the Department’s decision. She has since applied for a Contributory Parent visa on 14 March 2017 and is currently awaiting an outcome.

8. The sponsor is an Australian Citizen by conferral. She first arrived in Australia on a student visa in 2007 and was granted a Skilled (Resident) visa in 2010. She acquired her citizenship in 2012 and is currently employed as a manager in Chinatown Group Pty Ltd.

9. In support of her application for a visitor visa, the applicant provided the following documents to the Department:

   ·A letter from the applicant, dated 20 August 2017

   ·A Sleep studies report, dated 14 August 2017, with a diagnosis of ‘insignificant sleep disordered breathing

   ·A certificate of retirement, dated 20 September 2005

   ·A Polysomnography Report, dated 7 April 2017

   ·2 letters from Dr Malcolm Ogborne, dated 12 May 2017 and 10 July 2017

   ·A letter from Dr Gloria Xu, dated 15 August 2017

   ·A receipt for a cruise, dated 28 June 2014, for the period of 20 August 2014 to 29 August 2014

   ·Sponsorship application form 1149

   ·A cruise itinerary, dated 27 June 2014

   ·A notarial certificate of birth for Gao Li

   ·A St.George bank statement in the name of the sponsor, for the period 26 March 2017 to 25 June 2017

   ·An ANZ loan statement in the name of the sponsor, for the period 19 April 2017 to 19 June 2017

   ·Key cards for the applicant and the sponsor’s cruise trip

   ·A Change of name certificate, dated 4 November 2011

   ·A Construction Bank of China bank statement, in the name of the applicant, for the period 1 December 2016 to 29 June 2017

10. On 26 November 2018, the applicant provided the following additional documents to the Tribunal:

    ·A St George Bank statement in the name of the sponsor, for the period 26 June 2018 to 25 September 2018

    ·A marriage certificate between the sponsor and Michael Keith Palozzi, dated 10 September 2018

    ·A Commonwealth bank statement in the name of Michael Keith Palozzi, for transactions dated 26 October 2018 to 26 November  2018

    ·An Acknowledgement of application for a Contributory Parent (Migrant) visa for the applicant

    ·2 Term deposit certificate from the Bank of Shizuishan, in the name of the applicant

11. On 27 November 2018, the applicant provided the following documents:

    ·A copy and a translation of the applicant’s retirement card

    ·A copy and a translation of the applicant’s title deed to an apartment in Ningxia, China

    ·A Construction Bank of China statement for the period 22 August 2018 to 24 November 2018

    ·A Construction Bank of China statement for the period 6 August 2018 to 24 November 2018, showing credit of pension

12. On 29 November 2018, the applicant provided the following documents:

    ·Notification of Partner visa refusal and Decision record

    ·A list of relatives the sponsor had sponsored previously and their passport biometrics

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

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

15. 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)).

16. The applicant had been to Australia on three previous occasions. She travelled on Tourist Stream visas and the Tribunal accepts on the first occasion she complied with the terms of her visa but in 2014 she did not comply with the terms of her visa. Whilst the Tribunal accepts the applicant may have been given wrong advice as to whether travelling to New Caledonia by boat would satisfy her visa conditions the fact remains that the responsibility is on the visa holder to familiarise themselves with the visa requirements of their host country and to abide by them. In this application she seeks to visit Australia to spend time with her daughter. In the application it is stated the daughter is very busy with her work and does not have opportunity to visit her mother in China. At the time of hearing she said she also wanted to spend time with her husband who is in poor health.

17. On her application form she indicated she wanted to stay for a period of up to twelve months and to spend the time with her daughter and to support her. The applicant has substantial ties in Australia in that she has her husband, her daughter, her son in law and his family living here. The sponsor had entered Australia on 21 July 2007 on a Student visa, she was then granted a Temporary Graduate visa on 16 December 2009 and a Skilled Independent visa on 19 January 2010. She is now an Australian citizen. The review applicant indicated at time of hearing that it was her mother’s intention to come to Australia for twelve months. She said she wanted the option of having her to stay for a longer period rather than having to keep travelling. The visa applicant stated she would also prefer to stay for a longer period.

18. 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.

19. The Tribunal discussed with the visa applicant how she would arrange her family responsibilities in China if she were to come to Australia for an extended period. She told the Tribunal she was very involved with her other daughter and her two children. She takes the children to and from school each day, cooks the meals for the family and cleans the house. She said her son in law is an only son and if she were to be away for an extended period his sisters would step up and take over her role for the family.

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

21. In assessing intention the Tribunal was mindful of the evidence given by the sponsor as to whether she was prepared to post a security bond and if so for what amount. The review applicant gave evidence of owning her own home and of her and her husband owning three other properties and of having savings of around $100,000. The visa applicant gave evidence of being in full time employment, and of being in a secure position. When the sponsor was asked if she would be prepared to post a security bond and if so for what amount she was hesitant before answering that she would not be in a position to post a security bond for any amount in excess of $20,000. While the Tribunal appreciated that it may be difficult for some people to have ready access to an amount of money for a bond the picture the sponsor painted was of being from very financially secure background. Her hesitation and subsequent indication she would not be prepared to post a bond for an amount in excess of $20,000 was not indicative of a sponsor who had confidence the visa conditions would be complied with.

22. The Tribunal discussed with the review applicant its concerns that the visa applicant would not return to China at the end of her stay if the visa was granted. The Tribunal put to the sponsor that she had previously had one tourist visa application and a Partner visa rejected. She had lodged an application for a permanent visa on the grounds of her being in a genuine continuing relationship with her husband but that application had been rejected. The Tribunal was mindful that at the time of application there had not been a mention of the visa applicant’s husband. In a letter dated 20 August 2017 and provided at the time of application the visa applicant stated she would like to see and live with her daughter. There was no mention of her continuing to be in a relationship with her husband. However at the time of hearing the visa applicant gave evidence of wanting to spend time with her husband who was in poor health. The Tribunal was concerned that  this history of having previously overstayed one visa and of making two applications for visas to allow her live in Australia permanently was not indicative a history of a person who intended a genuine short stay at the time she entered Australia on a Tourist visa. The Tribunal discussed with the review applicant the concerns of the Tribunal this was really an application to obtain a migration outcome that allowed her and her mother to be together in Australia. The review applicant stated the visa applicant would return home because of her responsibilities to her other sister and her family. Taking into consideration her past conduct the Tribunal was not persuaded her family in China would be an incentive that would encourage her to abide by her visa conditions and return to China at the end of a twelve month stay.

23. While the visa applicant said her daughter was too busy with her work to travel to China the Tribunal was mindful that in the period from March 2017 to December 2018 the sponsor had been outside Australia on five occasions. The Tribunal noted she last saw her mother in China in October/November 2018.

24. The Tribunal has taken into account the applicant's personal profile, the circumstances of her family and especially her husband’s health, but given the matters discussed above the Tribunal has difficulty accepting that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

25. For the above reasons, both singularly and cumulatively, 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

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

    Moira Brophy
    Member