Teh (Migration)

[2021] AATA 3550

Teh (Migration) [2021] AATA 3550 (15 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yew Choong Teh

VISA APPLICANT:  Ms Huifang Liu

CASE NUMBER:  1922836

HOME AFFAIRS REFERENCE(S):          BCC2019/2731048

MEMBER:Luke Hardy

DATE:15 September 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 15 September 2021 at 5:42pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – incentives to remain or return and compliance with conditions – validly married – intention to apply for partner visa after retiring – long-term government employee three years from retirement would forgo superannuation payout – compliant travel to other countries – 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 13 June 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 Liu, is a national of China who resides in Wuhan. The review applicant, Mr Teh, is her husband. They were married in China on 25 December 2019. The applicants have submitted evidence of their marriage.

3. Ms Liu applied for the visa on 27 May 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.

4. 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.

5. The delegate refused to grant the visa on the basis that Ms Liu did not meet cl 600.211 because, in the delegate’s opinion, she did not genuinely intend to visit Australia only temporarily. The delegate was apparently concerned that Ms Liu would not have sufficient incentive to return to China before the expiry of a tourist visa, and that she might to remain in Australia and apply for residency here as Mr Teh’s spouse.

6. Mr Teh appeared before the Tribunal, constituted by me, to give evidence and present arguments on 1 September 2021. The hearing was held during the current lockdown caused by the outbreak of the Delta COVID-19 variant. I exercised the Tribunal’s discretion to hold the hearing by telephone, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicants. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, mindful of the delay to the matter were the hearing not to be conducted by telephone. Mr Teh did not require an interpreter. In this particular case, it became unnecessary for me to call Ms Liu. I am satisfied that Mr Teh was given a fair opportunity to give evidence and present arguments.

7. For the following reasons, I have 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 taking leave from her work as a government employee in China to spend time with her husband here. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. 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)). As far as the present case is concerned, Ms Liu has never previously been granted a visa for Australia. She has provided evidence, however, of travel over the last three or four years to Hong Kong, Thailand and Malaysia where she sojourned with Mr Teh. She evidently returned to China after all those visits abroad. The delegate evidently overlooked the evidence of that travel and placed no weight on Ms Liu’s previous travel abroad. I take a different view, having considered all of the evidence before me, and give Ms Liu’s previous travel abroad some small but cumulative weight.

11. The delegate noted Ms Liu’s 23-year career as a state school teacher in Wuhan but was concerned that her employment did not provide sufficient evidence of incentive to return to China. In the course of applying for review, Ms Liu and Mr Teh provided additional evidence  Mr Teh referred me to certified documents already submitted, attesting to Mr Liu’s state employee status. He also submitted evidence of her income and retirement benefit policy. In addition, he submitted a copy of Chinese state regulations pertaining to state employees who migrate abroad before their state tenure is complete. In particular, he drew my attention to the implications of Ms Liu leaving or quitting her job before she becomes entitled to early retirement, which will not be for another three years. He argued, quite persuasively, in my view, that neither he nor Ms Liu want her to sacrifice what would essentially be her superannuation payout just to overstay in Australia, when they could simply make an offshore partner visa application in three years’ time. He mentioned a number of trips he has made to China that would presumably become evidence in of support of such an application. He told me the Chinese government has given him a multiple-visit visa because he is the spouse of a Chinese national. I have given this evidence some cumulative weight.

12. 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.

13. Mr Teh described his work as a manager for a firm named in the visa application. That information is consistent with information in the original application. Mr Teh said he would support Ms Liu while she was here. He said she would only be able to take a short break of a couple of weeks.

14. Overall, I was left more confident than the delegate was that the applicants have thought together on their rights and obligations and do not want to blow their chances of being able to settle here later on. Their argument is essentially that just because they may want to settle here together in a few years’ time should not lead inexorably to the assumption that they will breach the conditions of a tourist visa now. Having considered all of the evidence cumulatively, I accept that Ms Liu intends only a temporary stay on the visa for which she has applied.

15. For the above reasons, I am 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

16. 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