Un (Migration)

[2024] AATA 710

Un (Migration) [2024] AATA 710 (19 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lam Un

CASE NUMBER:  2300949

HOME AFFAIRS REFERENCE(S):          BCC2023/227856

MEMBER:Tania Flood

DATE:19 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2024 at 10:43am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting his father – has limited financial means to support himself while also paying for his son’s university tuition – applicant does not maintain a home in either mainland China or Macau – applicant has remained in Australia for a considerable length of time – strong family ties – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221

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 17 January 2023 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 applied for the visa on 12 January 2023. 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 Tourist 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 visa was refused on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied he genuinely intends to stay temporarily in Australia.

5. The applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments.: The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

   Migration history

7. The Department’s records indicate that the visa applicant last arrived in Australia on 27 October 2022 as the holder of a Visitor visa which ceased on 27 January 2023.  On 12 January 2023 he lodged a further application for a Visitor visa.

   Application for the Visitor visa

8. The visa applicant made the application for the Visitor visa whilst in Australia.  He requested a further stay of up to six months until 10 July 2023 to accompany his father to celebrate Chinese New Year and to look after him until he puts in place appropriate care arrangements for him in the future.

9. The visa applicant indicated that he is divorced and his son, Saohang Un, is an Australian temporary resident on a Student visa.  His father is an Australian citizen. 

10. The visa applicant stated that he has sufficient savings to support his stay in Australia and that his father will be providing him with accommodation.

11. The applicant’s father, Chi Keong Un, has written that he is 88 years old and residing alone in Belmore.  His son, the visa applicant came to Australia from Macau to visit relatives.  He hopes his son can stay in Sydney for a long time to take care of him so that he can recover as soon as possible.

12. The applicant’s father’s Certificate of Australian Citizenship is attached along with a copy of his passport and New South Wales driver’s licence.

13. Also attached is a Patient Health Summary report printed on 2 December 2022.

    Tribunal hearing

14. The applicant attended a hearing on 14 February 2024.  At the hearing he provided the Tribunal with a letter dated 14 February 2024 which states that his father has been involved in a property dispute with his sister and he decided to extend his time with his father to support him through this.  He also states that he contacted a lady on WeChat for assistance to process his visa extension.  He said that she asked him for a copy of his passport but it was only when his son received email correspondence addressed to him that he learnt that this lady had lodged a Protection visa application without his consent.  He said that he gave instructions for the application to be withdrawn and he attempted to report the incident to the police.  He further states that he has four children and two grandchildren living in Macau; that he is a pensioner in receipt of MOP$80,000 per annum; that he owns a property with his wife worth MOP$8,000,000 and that he has travelled to Australia ten times between 2014 and 2019 without overstaying a visa, applying to extend a visa or applying for other visas to enable him residency in Australia. 

15. The applicant provided a copy of an email trail regarding his father’s property dispute and copies of identity documents.

16. During the hearing the applicant testified orally that prior to his last entry to Australia in 2022 he was residing in Zhuhai, Guangdong Province, China.  He explained that he originally departed mainland China in about 1976 and resided in Macau.  He said he returned to mainland China in about 1998.

17. The applicant testified that he maintains  no home in mainland China.  He said his family live in Macau and so that is his home now. 

18. The applicant testified that he has five children.  His eldest son is a permanent resident of Australia having completed his studies here; his middle son is working in Taiwan and his youngest son is enrolled at the University of Technology Sydney but is currently on holiday in China.  He said his son will return to Australia soon to complete his studies after which he will attempt to obtain a work permit to remain in Australia.  He said is paying for his son’s university tuition.  The applicant’s two daughters are living in Macau. 

19. The applicant testified that he was married twice.  His first wife lives in the family home in Macau and he divorced his second wife in China in 2015.

20. The applicant testified that prior to his arrival in 2022 he was already close to retirement age and was not working in China.  He confirmed he has been retired since 2018.  He said that he moved to Zhuhai after 2018 because the standard of living is high in Macau and his income was not sufficient to live there. 

21. The applicant testified that he has not worked in Australia.  He said he relies on his pension income.  He added that throughout the pandemic he also received a subsidy payment from Macau.  He also said he has some superannuation and savings.  He estimated his combined annual income to be AUD$16-17,000. 

22. When the Tribunal put it to the applicant that it is difficult to accept he is able to live in Sydney and pay his sons university tuition from his annual earnings he replied that he is very thrifty.  As to the suggestion that he may in fact be working he said that he doesn’t speak English and doesn’t want to work at his age. 

23. The applicant testified that his mother passed away in 2015 and he has a sister living in Australia.  His father is now living in government housing and has mobility issues and is mostly confined to a wheelchair.  He said he hopes to get some home care but for the moment his father is reliant on him for support.   He said his father receives Centrelink payments which he shares with him.  He later clarified that his father sometimes buys his food.  He also said he cannot live with his father due to the housing regulations and he has no fixed abode and stays with friends. 

24. The applicant testified that his sister does not support their father; in fact, after she secured his house she has effectively abandoned him.  He said his sister and his father remained locked in a dispute over the property. 

25. When asked about his future intentions the applicant stated that when all the issues with his father are cleared up he can return home.  He was unable to state when that time might come.  When the Tribunal put it to the applicant that he has already remained in Australia beyond the date he requested to extend his Visitor visa he referred to being deceived by the person who made a Protection visa on his behalf.  He said he did not appoint that person; did not pay her any money and he didn’t sign any documents.  He claimed to be perplexed that something like that could happen.   He said that the application for the Visitor visa was made after he became aware of that Protection visa application.  He confirmed he was assisted to make the Visitor visa application by a friend. 

26. The Tribunal asked the applicant why he put his trust in the hands of a stranger met through WeChat to process his visa application when he had two educated, adult sons residing in Australia at that point in time.  He replied that he did not want to bother his sons and he had no idea that person would make a Protection visa application on his behalf.  He said that person is still chasing him for money and still advertising a service on WeChat.  He said his attempt to report the person to the police was unsuccessful as no money had been exchanged.   He stated that he thought the matter would be resolved after withdrawing the Protection visa application.

27. The Tribunal put it to the applicant that it might form the view he will not abide by visa conditions if granted a further Visitor visa.  The Tribunal pointed out that his oral evidence indicates he has limited financial means to support himself while also paying for his son’s university tuition.  The Tribunal also put it to him that it appears he has strong incentives to remain in Australia.  Specifically, the Tribunal noted he is the only person supporting his elderly and frail father and that additionally he has one son already resident in Australia and another who is likely to seek to remain in Australia when his studies are completed.  The applicant responded that he has travelled in and out of Australia more than ten times and has never yet overstayed a visa.  He said that he will be content to be able to travel in and out of Australia to support his father. 

28. The applicant testified toward the end of the hearing that he is not able to go back to mainland China or Macau.  He said that he cannot work in Macau and the cost of living is very high.  When asked why he could not return to Zhuhai he said he is divorced from his second wife.  The Tribunal put it to him that his testimony in respect of his ability to live in either mainland China or Macau adds to its concerns about his future intentions.  He reiterated that he wants the ability to travel freely.   When the Tribunal queried his ability to undertake frequent travel given his declared income he stated that he has savings and said that Macau is a tax-free haven.   He also referred to his written statement that he also owns a property in Macau valued at MOP 8,000,000 in which his first wife lives. 

29. Before the hearing concluded the applicant stated that if he had an intention to remain in Australia permanently he would have sought to do so a long time ago.  He stated that even when his mother was sick with cancer he did not think to do that.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. 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.

31. In the present case, the visa applicant seeks the visa for the purposes of visiting and supporting his Australia citizen father. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

32. 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)).

33. According to the Department’s records the visa applicant has been travelling in and out of Australia on Visitor visas since 2013 and there is no evidence of past non-compliance with visa conditions.

34. 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 600.611(2)):

    ·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.

35. Having considered the available evidence, the Tribunal is concerned that the applicant does not have sufficient funds available to support his further stay in Australia without working.  Based on his evidence he receives an equivalent of $16,000 to $17,000 per annum from his combined retirement income which amounts to at best $1,416 per month.  He claims to be staying with friends but has provided no evidence to support this.  Additionally, he claims to have been paying the tuition fees for his son who is enrolled at UTS.  The Department’s records indicate his son first entered Australia on 24 July 2013 holding a Student visa and according to the applicant he will complete his studies in 2024.  According to the applicant he has been retired since 2018 and given his declared income and noting the high cost of living in Sydney the Tribunal finds it difficult to accept he could be providing for his own living expenses and paying his sons not insignificant University tuition fees from his limited retirement income alone.  Notably, during the hearing the applicant stated that his father has been assisting him by buying him food from his Centrelink income.  When discussing its concerns with the applicant during the hearing he indicated that he is 65 years old and cannot and does not want to work.  The Tribunal has considered his response but having carefully considered his evidence and his personal and financial circumstances it remains unconvinced that the applicant is not or will not engage in some form of employment in Australia if granted a further Visitor visa.  The Tribunal is not satisfied that the applicant will comply with condition 8101 if he is granted a Visitor visa.

36. The Tribunal is also not persuaded, for the reasons which follow, that the applicant genuinely intends to stay temporarily in Australia. 

37. The applicant claims that his home is in Macau but the Tribunal is not persuaded he intends to resume living there.  In fact, during the hearing the Tribunal established that the applicant does not maintain a home in either mainland China or Macau.  It appears he gave up his rental accommodation in Zhuhai when he travelled to Australia in 2022 and his evidence is that his first ex-wife is occupying the home they previously shared in Macau. Relevantly, at the conclusion of the hearing the applicant stated that he could not return to either Macau or to China.  He said he could not afford to live in Macau on his retirement income and he had divorced his second wife in Zhuhai.   Earlier in the hearing the applicant stated that he moved out of Macau because he could not support the standard of living there on his retirement income.  While it could be the case that he still has a financial interest in the house in Macau his ex-wife is currently living in that house and it wouldn’t appear there are any plans to liquidate that asset or that the applicant is able to resume living there.

38. While it is claimed the applicant has two daughters and some grandchildren residing in Macau, his evidence indicates that he has not lived in Macau since 2018.  In addition to his elderly father, he has one adult son residing in Australia permanently and another who is planning to resume his university studies in Australia this year.  According to the applicant that son also intends to remain in Australia after completion of his studies.   His only other son is working in Taiwan.  The Tribunal considers the applicants family ties in Australia are significant, outweigh his family ties in Macau and are a strong incentive for him to remain in Australia.

39. The Tribunal is also concerned that the applicant has remained in Australia for a considerable length of time after the date he requested to extend his stay until.  In his application for the visa the applicant stated that he wanted to use the additional time to put in place appropriate care arrangements for his father but his oral testimony does not support this.  While he indicated they do want to make some arrangements he said they have not done so as yet as he is still able to support his father by visiting him every other day whilst he is here.   According to the applicant his sister, who is resident in Australia, is estranged from their father as a result of an ongoing legal battle over property and does not visit her father or provide him with any support.  The applicant did not indicate that anybody else is available to support his father and the Tribunal considers the applicant is motivated to remain in Australia for this purpose.  The Tribunal acknowledges he claimed at hearing that he would like the opportunity to travel in and out of Australia for this purpose but his description of his father’s condition indicates he has high needs and his claimed intentions do not appear to align with these needs. 

40. The Tribunal also has serious concerns about the claims raised in respect of a Protection visa application made on his behalf.  As discussed with the applicant during the hearing the Tribunal finds it difficult to accept that the applicant would seek the assistance of a stranger on WeChat to process his Visitor visa application when he has two highly educated sons living in Australia who have had a long engagement with Australia’s migration laws.  The Tribunal has considered his response that he did not want to bother his sons about this but does not find this convincing.  Despite claiming to have tried to report the matter to police there is no evidence to support this and the Tribunal considers it possible that the applicant was aware that a Protection visa application was made on his behalf.  This contributes to the Tribunals concerns about the genuineness of the applicant’s claimed intentions. 

41. Notwithstanding the above, the Tribunal is not satisfied the applicant has not or will not work in Australia if granted a Visitor visa.  Additionally, for the reasons outlined above, the Tribunal considers he is motivated to remain in Australia indefinitely and has strong family ties here that could entice him to prolong his stay.  The Tribunal also considers he has very little incentive to return to either Macau or mainland China where he formerly resided. 

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

43. 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

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

    Tania Flood
    Member