Song (Migration)

[2017] AATA 669

Song (Migration) [2017] AATA 669 (2 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jian Bo SONG

VISA APPLICANT:  Mr Jianying SONG

CASE NUMBER:  1618844

DIBP REFERENCE(S):  BCC2016/3102740

MEMBER:B. Mericourt

DATE:2 May 2017

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; and

·cl.600.212 of Schedule 2 to the Regulations; and

·cl.600.231 of Schedule 2 to the Regulations.

Statement made on 02 May 2017 at 4:34pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 – Genuine temporary entrant – Sponsored Family stream – Family record of visa compliance – Wife and children remain in China

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 Part 600 cl 600.211, cl 600.212, cl 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 14 October 2016 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 13 September 2016. 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.

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 he genuinely intended to visit Australia only temporarily.

5. On 10 November 2016, the applicant’s brother/sponsor, hereafter referred to as the review applicant, lodged an application for review of the Department’s decision with the Tribunal.

6. The review applicant appeared before the Tribunal on 2 May 2017 to give evidence and present arguments. The Tribunal was assisted by an interpreter in Mandarin and English.

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

   BACKGROUND

8. The visa applicant was born in 1962 in China and is a citizen of China. He stated that he is self-employed as a farmer. He is married and has one son and one daughter.  They live in Renshou, Sichuan Province.

9. The review applicant is the visa applicant’s brother.  He is married and has one son.  He is Director and General Manager of his own clothing business in Sydney.  On 28 November 2000 he was granted a permanent visa (Employer Nomination Scheme subclass 856) and he was granted Australian citizenship on 1 May 2003. He has previously sponsored his mother and nephew to visit Australia.

10. The visa applicant lodged an application for a family sponsored visitor visa to visit Australia for a period of three weeks, together his mother, aunt, uncle and cousin.

11. The visa applicant’s mother was granted a six month visitor visa on January 2017. She entered Australia on 14 January 2017. The other family members were refused visas by the Department.

    TRIBUNAL HEARING

12. The review applicant  provided credible evidence to the Tribunal which is summarised as follows;

13. The visa applicant grows grain (wheat) on 3 mu of land. He and his wife both work on the farm. His wife will look after the farm in his absence as he only intends to be in Australia for a short period.

14. The visa applicant’s children are 31 and 29 years old. They live in a different area close by and are married. The visa applicant has two grandchildren. He has frequent and regular contact with his children and grandchildren in China.

15. The visa applicant originally planned to come for a period of only three weeks for Christmas and New Year celebrations with his brother. He was going to accompany his mother who cannot travel alone. His son had applied for a tourist visa separately which was granted and he accompanied the visa applicant’s mother to Australia in January this year. He returned to China after only one week as he had work commitments.

16. The visa applicant has one brother and three sisters. His father passed away in 2012. His mother lives with her children in China. The review applicant takes a turn caring for her from time to time for six months at a time. She is currently residing with him in Australia.

17. The visa applicant still plans to visit for only three weeks.  The review applicant hopes that his brother will be able to visit in June and accompany his mother back to China at the end of June this year.

18. The review applicant told the Tribunal that his son is a doctor. He married a woman whose family is in Taiwan and he invited all his relatives in China to attend the wedding in October 2016. The visa applicant was the only one unable to attend as he had to look after the farm. Consequently the review applicant particularly wanted him to visit the family in Australia. Their intention was that he would accompany his mother who was staying for six months, but leave after only three weeks to go back to his own family.

19. The review applicant is paying for all his brother’s expenses, including his airfare. He will accommodate him during his visit. The review applicant lives in a five bedroom home, now occupied by only his wife and himself, so he can accommodate all his relatives.

20. The review applicant is willing and able to pay a security bond if required by the Department.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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.

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

23. 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)).

24. The visa applicant does not have any migration history. 

25. The review applicant does not have an adverse migration history and nor do any members of his family that he has previously sponsored to Australia. The visa/review applicant’s mother was granted a six month visitor visa on 15 March 2013 and departed Australia within her visa period. She has been granted another six month visitor visa and entered Australia on 14 January 2017. Her visa is still valid. The visa applicant’s son was granted a three month visitor visa on 3 January 2017 and departed Australia within one week of his entry.

26. 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.

27. The Tribunal is satisfied that the applicant plans to visit Australia for a very short period and that he will not work or engage in study or training in Australia for the period of his visit.

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

29. The Tribunal places significant weight on the fact that the applicant is leaving his wife, two children and two grandchildren in China during the period of his visit. The Tribunal considers this provides a strong incentive for him to return to China within his visa period.

30. The Tribunal also places significant weight on the fact that the visa applicants’ mother and son who have been granted visitor visas in the past have both complied with the conditions of their visas and departed Australia before their visas ceased.

31. 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 visas are granted, and finds that the requirements of cl.600.211 are met.

32. Based on the documents provided to the Tribunal relating to the visa and review applicants’ savings and assets, and the fact that the review applicant plans to accommodate the visa applicants for the period of his visit, Tribunal is satisfied that the visa applicant has access to sufficient means to support himself during the period of his visit.

    DECISION

33. 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

    ·cl.600.212 of Schedule 2 to the Regulations; and

    ·cl.600.231 of Schedule 2 to the Regulations.

    B. Mericourt
    Member