Shi (Migration)

[2021] AATA 5244

Shi (Migration) [2021] AATA 5244 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Cynthia Shi

VISA APPLICANT:  Ms Rongjian Wang

CASE NUMBER:  1925652

HOME AFFAIRS REFERENCE(S):          BCC2019/3185953

MEMBER:Luke Hardy

DATE:28 October 2021

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.

Statement made on 28 October 2021 at 3:58pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – waiting in queue for Parent visas – financial and property holdings in China – previous travel to Japan – intention to comply with visa conditions – decision under review remitted

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 9 July 2019 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, Ms Wang, a retiree who lives in China, applied for the visa on 25 June 2019. 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 Ms Wang did not meet cl 600.211 because of a lack of satisfaction on the part of the delegate as to the genuineness of her intention to visit only temporarily.

5. The review applicant, Ms Shi, is an Australian citizen and Ms Wang’s adult daughter. Both appeared before the Tribunal by telephone on 3 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. Ms Shi was represented in relation to the review by her registered migration agent. The representative also attended the Tribunal hearing by telephone.

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

   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, Ms Wang seeks the visa for the purposes of visiting her daughter Ms Shi for a period of up to three months. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. Ms Wang lives with her husband in China. They are presently nominated for migration Australia as parents of Ms Shi on Parent visas. The process has taken some time and is likely to take longer as Ms Wang and her husband are in a reportedly long queue that is subject to annual quotas. There is no evidence before me to suggest that they would be ineligible for Parent visas or fail to meet the criteria for the latter for any reason. As put to me at the hearing, it is merely a matter of waiting. In the meantime, Ms Wang wishes to spend some family leisure time with her daughter while her husband is evidently prepared to remain in China. The applicants told me at the hearing that they have no intention of compromising the chances of Ms Shi’s father being able to migrate here in due course, such as by breaching the conditions of any Visitor visa granted to Ms Wang.

11. The delegate gave little weight to the fact that Ms Wang’s husband would remain in China as an incentive for her to return. I give more weight to this factor, having heard from both the visa applicant and the review applicant in this case.

12. I also give some weight to the evidence of financial and property holdings in China, some of it held under the name of Ms Wang’s husband, some held in Ms Wang’s name. I am prepared to accept that these financial and property holdings provide some incentive for Ms Wang to return to China at the end of a temporary visit to Australia.   

13. 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)).

14. In this case, Ms Wang has provided evidence of travel to Japan. She evidently returned to China within the validity period of her visa. The delegate gave this only a little weight, but I am prepared to give it more than that.  

15. 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.

16. In considering these conditions, I have had regard to the evidence to the effect that Ms Wang’s travel would be self-funded, with Ms Shi only needing to provide accommodation. Ms Shi also provided evidence of her capacity to support a temporary visit by Ms Wang. I am satisfied that she would be able to support herself for up to three months in such circumstances and that she would not be tempted to seek work, including paid work, in Australia. I have no reason to be concerned that Ms Wang would seek to undertake any kind of study in Australia.

17. Whereas the question of applying for a protection visa is not necessarily a disqualifying factor in Visitor visa applications, my reading of a wide range of case histories shows that this can sometimes be elided with concerns about whether a visa applicant’s intention to visit only temporarily is genuine.  In this case, I explored with Ms Wang and Ms Shi the issue of whether Ms Wang might be tempted to extend her stay by lodging a protection visa application and she was quite candid about her social situation in China, as will be apparent to anyone reviewing the audio recording of the hearing, but compelling in her stated desire not to do anything in Australia that would jeopardise the success of the Parent visa applications that are currently on foot for her and also her husband. Overall, I am satisfied that Ms Wang will meet condition 8531.

18. I have also considered all other relevant matters (cl 600.211(c)).

19. 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.

    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.

    Luke Hardy
    Member