Sun (Migration)

[2017] AATA 2611

Sun (Migration) [2017] AATA 2611 (15 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Yanru Sun

VISA APPLICANT:  Mrs Weiying Ma

CASE NUMBER:  1702265

DIBP REFERENCE:  01779444

MEMBER:Rosa Gagliardi

DATE:15 September 2017

PLACE OF DECISION:  Melbourne

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 15 September 2017 at 2:10pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Strong financial position – Strong ties in China – Credible witness

LEGISLATION
Migration Act 1958 ss 65, 359A
Migration Regulations 1994 Schedule 2 cls 600.211, 600.211 (a) – (c), 600.221, 600.222

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 11 January 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 6 January 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 Tourist 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 he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 12 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant overseas.  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 her registered migration agent.

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, the visa applicant seeks the visa for the purposes of visiting her daughter and grandchild. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   Background

10. The applicant is a 49 year old female national from Henan Province, China.  She seeks to visit Australia for one month.  She was married to the sponsor’s father but has been divorced from him for about ten years and now has been married to the sponsor’s step-father since 2008.  She has a step-daughter who is 25 years of age with her current husband.

11. The sponsor came to Australia with her father and step-mother in June 2009.  Her father had a business visa. 

12. She claims she intends to visit her daughter and her grandchild in Australia. On the departmental papers there is a note which the Tribunal put to the applicant in the interests of natural justice pursuant to s.359A of the Migration Act. The note reads that the application was linked by email to an applicant who was previously refused based on fraud and it was considered that non-genuine claims may have been made by the applicant.

13. In her response dated 1 June 2017, to the Tribunal the applicant states that she had been introduced to a friend called Xianhao Zhang who was based in Shanghai and specialises in visa applications.  Zhang’s company is called Visa All.  Jian Chai and Weiwei Shi are his employees.  The applicant explains that it was Jian Chai who usually contacted her and the email address provided for her visa application was their email address, not the applicant’s.  When her first application was refused, they suggested she lodge a second one and that was also refused (the one subject of this review). 

14. The Tribunal investigated the matter with the department but it appears that the fraud mentioned in the departmental notation does not relate specifically to the applicant.  In addition, having had regard to the applicant’s explanation that it was the email address of the agent that raised concern by the department, and not the characteristics of the applicant herself, the Tribunal places no adverse weight on the departmental reference to fraud and accepts the applicant’s explanation.

    cl.600.211(a)

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 has not travelled to Australia previously and there is nothing to indicate that she has travelled to other countries.  The Tribunal places some adverse weight on this factor. 

    cl.600.211(b)

17. 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)).

    ·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.

18. The applicant has provided evidence of having two properties in China.  The applicant retired “internally” in 2012.  Every month she gets 2,000RMB, the equivalent of roughly AUD386.00.  The applicant worked in her ex-husband’s business. She has submitted evidence that during her stay in Australia the usual monthly salary will continue to be paid. 

19. The Tribunal acknowledges that the applicant’s salary is not high but places weight on the titles of the properties.  In addition, evidence has also been submitted of a Bank of China Account which demonstrates that as at 31 December 2016, the applicant has 107,310.00RMB (equivalent of approximately AUD20,487) in savings.  The Tribunal places significant weight on the savings in the applicant’s favour.

20. Evidence of life insurance has also been submitted but little weight is placed on this material as of itself it does not represent a strong incentive for the applicant to return to China.  Similarly evidence of a bank card has been submitted but the balance is not significant.  It does reflect, however, that the applicant is paying superannuation.  A further bank account with the Bank of Communications also holds minimal savings. 

21. The Tribunal considers that overall the applicant’s financial position is relatively strong and that she would be in a position to fund her trip to Australia without difficulty. 

22. The Tribunal also places weight on the fact that the applicant stated at hearing that she could not leave her husband in China for very long as she was looking after her elderly step-parents and was preparing meals for them and her ex-husband could not manage without her for very long.  Her elderly mother also relied on her.  The Tribunal appeared credible at hearing when she stated that her life was in China and that she would not be able to stay in Australia on an ongoing basis and that she would not attempt to do so.

23. The Tribunal is satisfied overall that the applicant does have affective ties in China that act as incentives for her to abide by her visa conditions and return to China within the terms of her visa conditions. 

24. The Tribunal also accepts that, as claimed, the applicant is coming to Australia to be with her three year old grandchild and to spend time with her own daughter.

    cl.600.211(c)

25. The Tribunal has also considered all other relevant matters (cl.600.211(c)).   Ultimately the Tribunal has relied on the applicant’s financial position in China and her credibility.  The Tribunal notes that at the time of application the applicant had not submitted evidence of her savings to demonstrate that she had the capacity to fund her visit to Australia and was not coming here to work. 

26. Having considered the evidence individually and cumulatively, 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

27. 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.

    Rosa Gagliardi
    Member