Tacey (Migration)

[2017] AATA 1838

Tacey (Migration) [2017] AATA 1838 (22 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Paul David Tacey

VISA APPLICANT:  Ms Xuan Qin

CASE NUMBER:  1707343

DIBP REFERENCE  BCC2016/4330452

MEMBER:Rosa Gagliardi

DATE:22 September 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 September 2017 at 4:57pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine visitor – Review and Visa Applicants are married – Previous visits to other countries – Previous student visa applications – Plans to meet husband’s family – Long-term intention to remain in Australia – Assessment about genuine relationship – Son and extended family in China – Business and employment commitments

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, 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 Immigration on 6 February 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 21 December 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 it was considered that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 14 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant overseas, as well as from Mr Howe Wong, a friend. 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 his registered migration agent.

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

   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 putative spouse, Mr Paul David Tracey. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

10. The parties married in China in September 2016.  It was claimed at hearing that they have known each other since the beginning of 2016.  The parties have met on several occasions in person since the wedding, including more recently in Japan.  It was claimed at hearing that the parties had not submitted a Partner application as yet because the sponsor was unclear as to whether the sponsor would move overseas due to his work or the applicant would come and live with him in Australia.  In the meantime, the applicant claims to want to spend a brief period in Australia (a week) to get to know the family and friends of the sponsor and to see some of Australia.  The sponsor has met the applicant’s family overseas and he wanted to be able to reciprocate the hospitality in Australia.  The sponsor stated that it was much more difficult to get his family to travel overseas to meet the applicant.  The applicant cannot stay for a lengthy period in Australia because she has spent a week with the sponsor in Japan already and only has another week of annual leave.

11. The applicant has parents, a 7 year old son, and siblings who live in China.

12. An extensive amount of material has been submitted to the Tribunal that goes to the issue of the nature of the parties’ relationship, such as the Relationship Continuation Statement by the applicant as well as evidence of communication, among other things. 

13. Mr Wong also gave evidence at hearing indicating that, among other things, he knew the parties well and that he was aware that the applicant had a stable income.

    cl.600.211(a)

14. 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)).

15. The Tribunal accepts that the applicant has travelled extensively to Singapore, Thailand, Malaysia and other countries in the region, although she has never travelled to Australia previously.  The Tribunal places some positive weight in the applicant’s favour on her travel history.

16. It also emerged at hearing that the applicant had previously applied to come to Australia prior to meeting the sponsor but that the visa applications were refused. 

17. In his submission dated 21 June 2017, the migration agent has argued that the applicant had applied for two previous Visitor visas for the purpose of studying in Australia (24 month course) and that since the two applications were organised by her Chinese education provider, may have been badly handled by this education provider.

18. The Tribunal does not accept the migration agent’s assertion that the Tribunal should not deduce from these applications that “the visa applicant has any particular interest in coming to Australia”.   The Tribunal respectfully places significant weight on the fact that the applicant has made several applications to come to Australia, independent of her putative spousal relationship with the sponsor.  The Tribunal considers that the applicant has demonstrated a strong motivation to travel to Australia and the Tribunal cannot be satisfied that, on this occasion, the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  Rather, the Tribunal is concerned that the applicant is attempting to fulfil a longer term aspiration to maintain an ongoing presence in Australia, by way of study or changing her visa status onshore. 

19. This concern is reinforced because the Tribunal has been provided with evidence that the applicant, as at 15 December 2016, had undertaken a Smart English Training Course of 23 months duration.  The Tribunal considers that this undermines the migration agent’s comments in the submission dated 21 June 2017, that it is reasonable to conclude that the visa applicant does not have any current intention to obtain Australian residency status. 

20. The Tribunal accepts that the applicant may want to improve her ability to communicate with the sponsor, however, it is not plausible that she would not be undertaking such a course if she did not have a long-term intention to remain in Australia. In terms of her relationship with the sponsor and their ability to communicate, the parties have already been able to communicate to the point of making a decision to marry so it is unclear why she would be undertaking such an intense language course for some other purpose. 

21. The delegate wrote in her decision that as the parties had not as yet lodged a Partner visa application, and there had been no assessment about whether the relationship was genuine and continuing, it was not possible to make a finding that the relationship, and thus the purpose of the visit, is genuine.  The Tribunal considers that it is not within its purview to make an assessment about the nature of the relationship at this juncture.  However, clearly if the relationship is not genuine then the Tribunal must have cause to be concerned that the applicant is not being truthful about whether she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Given the circularity of this argument, however, the Tribunal considers that it is not beneficial to focus on the nature of the parties’ relationship and instead makes an assessment about whether the applicant genuinely intends to stay temporarily in Australia by carefully weighing the considerations under cl.600.211(b).

    cl.600.211(b)

22. 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.

23. The applicant argued strongly that she had a son in China so of course she would want to return to him.  She also has other family by way of her parents and siblings.  In his statutory declaration dated 17 June 2017, the sponsor has emphasised that the applicant is well-established in China, with a stable and well-paid job.  She has two real estate properties and various assets including cash savings in banks, shares, insurance policies, etc.  The Tribunal has sighted evidence to support these claims.  One of her apartments is owned outright and she has owes 380,000 RMB on the other.  She also has a term deposit with savings of 200,000RMB (approximately AUD28,000). 

24. In her statement to the Tribunal dated 13 December 2016, the applicant wrote to confirm that she has a strong history of work and stable income since she graduated from High School. In June 2006 she became a salesperson for a company dealing with products to maintain the aesthetics of autos.  She earned 2,000 RMB (presumably monthly) plus performance rewards.  In January 2007 she became a sales manager of the head office of an E-commerce company and she was in charge of telemarketing and received 4,000 RMB plus performance rewards, also presumably monthly.  In 2008 she married and ran the family winery with her ex-husband.  She was responsible for the management of production and sales departments and derived an income of about 6,000 RMB plus dividends.

25. After she lived apart from her ex-husband, the applicant has stated that she ran her own business and had her own bakery chain.  She had three bakeries.  But later the business turnover and profits started to fall because she had to raise her child and she could not pay as much attention to the businesses.  She therefore, gradually decided to close the stores, with the final one closing in March 2016. 

26. The applicant then returned to sales and was the sales manager of a company in April 2016, earning 100,000RMB annually (excluding awards and bonuses) which is approximately equivalent to AUD19,100.00

27. The Tribunal accepts that the applicant’s financial situation is relatively sound even though clearly salaries in Australia are much higher.  However, the Tribunal is not satisfied that these assets could not easily be liquidated at any time.  Her investments are such that she could realise their value if she were to change her status onshore and remain in Australia. 

28. It is also argued that currently the applicant is renovating one of her apartments and that she needs to be in China to supervise the work.  The Tribunal is not satisfied that the renovation of her apartment requires her to be in China as she has other family members overseas who could oversee works there and in any event, the Tribunal queries why the applicant is undertaking renovations and may not be doing so in preparation for the sale of such a property in the event she moves to Australia where work and business opportunities would be more lucrative. 

29. The Tribunal acknowledges that the applicant has her parents and siblings in China but her attachments to her family members could not be said to override those of her attachment to her husband in Australia. 

30. The Tribunal understands that the applicant has a son who would be looked after by her parents during any stay in Australia and it is argued that this strong affective tie should persuade the Tribunal that the applicant will return to China on expiry of her visa.  Were the applicant to change her status onshore, however, this would not mean that she would never be able to travel to China or indeed sponsor her son to Australia where the child would have access to a Western education as well as quality healthcare. 

    cl.600.211(c)

31. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  As the Tribunal commented at hearing the Australian citizen sponsor appeared to be genuine in expecting that the applicant would abide by her visa conditions and would return to China.  However, the Tribunal is required to assess the applicant’s intention and given that the marriage is still in its early stages and the parties appear not to have lived together for any extensive period, it is difficult to rely on the sponsor’s assessment alone at this stage. 

32. For the above reasons 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

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

    Rosa Gagliardi
    Member