SHI (Migration)

[2018] AATA 1594

SHI (Migration) [2018] AATA 1594 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Xiaoqing SHI

VISA APPLICANT:  Ms Yayun XUE

CASE NUMBER:  1720907

DIBP REFERENCE(S):  BCC2017/2043930

MEMBER:Roslyn Smidt

DATE:2 March 2018

PLACE OF DECISION:  Sydney

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.

·cl.600.212 of Schedule 2 to the Regulations.

Statement made on 02 March 2018 at 11:24 am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Sponsored Family stream – Visiting daughter and assist her during her illness – Genuine intention to stay temporarily – Adequate means to support herself

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, 600.231, Schedule 8, Condition 8101, 8201, 8503, 8531

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 5 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 9 June 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 and cl.600.212 which requires that the Tribunal is satisfied that the applicant has adequate means to support himself or access to adequate means to support himself.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she was not satisfied that the applicant genuinely intended to remain in Australia on a temporary basis. In reaching this conclusion she noted that the applicant did not work and did not find that the family members who would remain in China provided a sufficient incentive for her to return home at the end of her stay.

5. The review applicant appeared before the Tribunal on 1 March 2018 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 her registered migration agent.

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

   BACKGROUND

7. The visa applicant is a 55 year old married woman from Fujian in China. She wishes to travel to Australia with her husband to visit his daughter (the review applicant) and grandchildren. The visa applicant’s husband will cover the costs of her travel and her expenses in Australia. The visa applicant wishes to remain in Australia for a period of six months.

8. The review applicant is a 31 year old single mother with two young children. She arrived in Australia in November 2014 on a spouse visa. Her marriage later broke down. She lives in a rented two bedroom house. She receives Centrelink benefits and her father provides her with additional financial support. She and one of her children have significant health issues. Medical evidence of these issues has been provided.

9. The visa applicant has provided copies of her husband’s bank statements and evidence of ownership of a property in China. At the hearing the review applicant stated that her father operated a business as a seafood wholesaler. In support of this claim she provided a certificate from the Fuqing Chaohui Aquatic Food which confirms that they purchased in access of $400,000 of products from the visa applicant in a six month period in 2017. She said that her father would be able to carry out the business temporarily by telephone and internet while in Australia

10. At the hearing the review applicant stated that the visa applicant lives with her husband and two adult children in China. Her son who is married and has one child. Her daughter who is divorced and has two teenage children. Her son works and her daughter runs her own business. They are a close family and the visa applicant is very involved in caring for the entire family, particularly her grandchildren.

11. The visa applicant previously visited Australia between November 2009 and January 2010 and complied with the conditions on her visa on that occasion. The review applicant explained at the hearing that one of her maternal uncles lives in Australia and sponsored her mother for this visit.

12. At the hearing I reminded the review applicant that the visa applicant’s application had been refused because the delegate had not been satisfied that she intended to remain in Australia temporarily and asked if she wished to comment. She said that the visa applicant has no wish or desire to remain in Australia. She noted that her mother had travelled to Australia previously and had complied with the conditions on her visa on that occasion. She said that she and her mother understood that if her mother did not comply with the condition requiring that she leave Australia before her visa expired she would probably not be able to visit Australia again and it was important to both of them to avoid this possibility.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. The issue in this case is whether cl.600.211 is met. Cl.600.211 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.

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)). The visa applicant visited Australia for a period of 2 months and complied with the conditions on her visa.

16. 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.

17. The Tribunal must also consider all other relevant matters (cl.600.211(c)). 

18. The visa applicant is 55 years old and does not currently work outside the home. She has provided evidence her husband has a relatively high income and access to sufficient funds to support her during her stay in Australia.  She has strong family ties in China.  She complied with the conditions on her visa during her previous visit to Australia. Her husband has visited Australia twice and complied with the conditions on his visa on both occasions. In addition, I found the review applicant’s evidence that she and her mother are aware of the consequences which they would likely face if her mother failed to comply with the conditions which would be attached to her visa and wished to avoid this possibility convincing.

19. On the evidence before me I am satisfied that the visa applicant genuinely intends to remain temporarily in Australia for the purposes of visiting her daughter. I am also satisfied that she has access to adequate means to support herself during her stay in Australia and will comply with all the conditions on her visa. I find that the requirements of cl.600.211 and cl.600.212 are met.

    DECISION

20. 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.

    ·cl.600.212 of Schedule 2 to the Regulations.

    Roslyn Smidt
    Member