Wang (Migration) - [2025] ARTA 441

WANG (MIGRATION) [2025] ARTA 441 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Yu Wang
Visa Applicant:  Mr SHENG WANG
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2310446

Tribunal:General Member M. Moustafine
Place:Sydney
Date: 12 March 2025
Decision: The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
General Member M. Moustafine
Statement made on 12 March 2025 at 12.30 pm.

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family and business ties in home country – previous compliant family visits to other countries – inconsistent information on family composition and employment – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 11 May 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 13 April 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.
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.
Evidence before the Department
Based on his visa application, the visa applicant is a 49-year-old citizen of China, born and living in Guilin, Guang Xi province. He stated that he was separated and employed as a manager at Guilin Chanatte Catering Management Co since 1998. He seeks the visa for the purpose of visiting his brother, the review applicant, an Australian citizen. He will fund his visit from his personal bank deposit and his brother will provide accommodation. The visa applicant stated that he has not previously visited Australia and will not work or undertake a course of study during his visit. His parents and two 9-year-old sons will remain in China.
In support of his application the visa applicant provided copies of his Chinese passports showing various entry/exit stamps and visas for Korea and South Africa; his Chinese national identity card; a family composition form 54 and untranslated household booklet; his personal bank account statement and property title deed; a letter from his employer stating that he was currently employed by the company as a manager responsible for office administration and public relations on a monthly salary of RMB5000 and leave approval for a period of 25 days.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because he did not find that the applicant demonstrated sufficiently strong employment, economic, family or other commitments that would be an incentive for him to return to his home country and was therefore not satisfied that the applicant intended to stay temporarily in Australia.
Evidence before the Tribunal
On 14 July 2023, the review applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision, providing a copy for the purposes of the review.
On 23 July 2024, the Tribunal contacted the review applicant to advise that the case was being prepared for hearing and requested that the visa applicant provide updated contact details and any further information in support of his case. On 30 July 2024, the applicants provided a completed hearing form, together with a copy of a Japanese visa granted to the visa applicant and several photographs purporting to be of the visa and review applicants taken in Japan.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 16 November 2024, the review applicant submitted to the Tribunal an appeal support letter providing clarification and additional supporting information regarding his brother’s employment and financial ties, family commitments and his credibility and travel history, including the following relevant points:
a.The visa applicant has both financial and professional incentives to return home after his intended visit, as well as significant family responsibilities that firmly anchor him to home country.
b.He has been employed for over 15 years at the same company and has achieved a management position, with a monthly salary of CNY 5,000, a good income in the local community. He has strong professional relationships with colleagues and external clients and fully intends to continue working with this company for the foreseeable future.
c.He has substantial financial resources, with bank deposits totalling CNY148,000.00 (equivalent to AUD $31,319.00) and JPY6,000,000 (equivalent to AUD $59,604.00). These assets reflect his financial stability and ability to support himself during his intended short stay in Australia. He also owns a three-bedroom flat.
d.He is father to 9-year-old twin boys and is actively involved in their daily lives, including taking them to school, attending parent-teacher meetings, and supervising their extracurricular activities. His responsibilities as a father are a major reason he will return to his home country after his trip. If he travels to Australia, these family responsibilities will be temporarily taken by the mother of twin boys during his travelling period.
e.Until recently he was a major helper for his father, who passed away in February 2024, driving him to hospital for dialysis treatments three times a week for more than five years. Now he supports his 76-year-old widowed mother emotionally and practically, spending time with her regularly as she copes with the loss of her husband.
f.The visa applicant plans to travel to Australia together with their mother, who holds a 3-year multiple entry visitor visa, to visit the review applicant, who has been living in Australia for over 20 years and is an Australian citizen. The visa applicant intends to visit Australia for a short period, primarily to spend time and travel with the review applicant and their mother.
g.The Department decision did not consider the visa applicant’s previous travel history to various countries, including South Africa, Japan, South Korea, and multiple EU countries, always adhering to visa conditions. Most recently, the visa applicant travelled to Japan in July 2023 with the review applicant and their mother and returned home promptly after the permitted travel period.
Supporting documents included photographs purporting to be of the visa applicant’s apartment; the visa applicant’s bank statement from December 2023 to March 2024; the applicants’ mother’s Australian visa grant letter for three years; an English language certificate of employment for the visa applicant, confirming his role as manager of office administration and public relations, dated 18 November 2024 and signed by the visa applicant; an English language certificate of leave approval for the visa applicant, indicating approval of 25 days leave with start and end date to be determined, dated 18 November 2024 and signed by the visa applicant.

The hearing

The review applicant appeared before the Tribunal on 6 March 2025 by MS Teams videoconference to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in China by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
In a discussion of his background, the review applicant told the Tribunal he first came to Australia on a Student visa in 2003, was granted an independent skilled visa and permanent residency in 2005 and is now an Australian citizen. He previously sponsored his parents to visit Australia in 2007 and his mother in 2024. His mother holds a 3-year multiple entry Visitor visa and has applied for a Contributory Parent visa, which has a long wait period.
The review applicant told the Tribunal that his brother, the visa applicant has not visited Australia previously but would like to come together with their mother. He has approved leave for 25 days from the catering company where he has been employed for 15 years as public relations and marketing manager. He has previously travelled in Europe, South Africa, Korea and Japan and always abided by his visa conditions. The review applicant said his brother was separated from his wife, with whom he had two 9-year-old sons but had no other relationships. He said his brother’s incentives to return home were that he had to look after his sons, who lived with him most of the time as his apartment was close to their school. Other incentives were his job and professional connections and the fact that all his friends were in China.
In a discussion about his background, the visa applicant told the Tribunal that he had been working for 15 years as manager of a restaurant catering company, managing the daily operations of the restaurant and kitchen staff and dealing with the government to obtain licenses and pay taxes. He said he was married with two children and lived with his wife, and their two 10-year-old sons. He told the Tribunal he owned the apartment he lived in and another in same building which he owned jointly with his wife, who worked for the government’s sports department. As to what family he had in China, the applicant initially identified his parents, his grandparents and an uncle, saying it was a big family. Asked if he looked after his father, the applicant said “yes, for many years” as he was sick and had to go to the hospital 2-3 times a week but later said that his father had passed away recently so he was no longer taking care of him. He claimed that he initially mentioned both his parents because his father had only died recently, and they were still in mourning.
The visa applicant said he wished to visit Australia for a month to see his brother and to see the country. He did not yet have leave approval but could get approval depending on the length of time for which his visa would be granted. He said he planned to bring his sons with him to Australia. He had not included his mother in his travel plans, though it was up to her as to whether she would remain in China while he was in Australia. He said his incentives to return were that his sons had to go back to school, and he had to go back to work as he was about to retire after many years and had to continue working till retirement so he could get his retirement payment and all social securities. He claimed he had previously travelled to Europe, Japan, Korea, and Thailand – always returning home within the visa period.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
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 the visa applicant has not previously visited Australia, the question of previous compliance is not relevant. According to Department records, there is no evidence of non-compliance with conditions of his previously held visa by the review applicant, who first arrived on a Student visa, was subsequently granted an independent Skilled visa in February 2006 is now an Australian citizen.
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(3)):
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 months.
Based on his written evidence in his application form that he does not intend to work or study in Australia, the Tribunal is prepared to accept that the visa applicant will comply with these conditions.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The Tribunal is concerned about inconsistencies between the visa applicant’s evidence at the hearing, his written evidence and the evidence of the review applicant regarding important aspects of his personal background.
The visa applicant told the Tribunal that he was married, lived together with his wife and two sons and owned a property together with his wife in China. He gave no indication that his relationship situation had ever been different, other than to say that his wife was now working. This was inconsistent with the information provided in his visa application form and family composition form 54, where he indicated his relationship status as separated and the address of his spouse as “unknown”. It was also inconsistent with the evidence of the review applicant at hearing that his brother was separated and that his sons lived mostly with him and in the review applicant’s appeal support letter of 16 November 2024, in which he referred to the visa applicant’s responsibilities as a father would be ‘temporarily taken by the mother of twin boys during his travelling period’ (paragraph 10.d refers). The Tribunal did not find persuasive the review applicant’s explanation that he did not know that his brother and his wife were living together again.
There were also inconsistencies regarding the visa applicant’s employment role between the evidence of the visa and review applicants. The review applicant told the Tribunal that his brother was the public relations and marketing manager at a catering company and had leave approved for 25 days. This was generally consistent with the employment letter provided to the Tribunal, which referred to him as manager of office administration and public relations and the leave approval certificate. By contrast, the visa applicant said his main role was managing restaurant operations and kitchen staff, as well as dealing with the government about licenses and paying taxes. He also told the Tribunal he did not yet have leave approval but could get it depending on the length of time for which his visa would be granted. Significantly, the visa applicant’s evidence at the hearing regarding his plans for his proposed visit were inconsistent with that of the review applicant. In his appeal support letter, the review applicant indicated that his brother would travel to Australia with their mother and his sons would remain in China (paragraphs 10.d and 10.f) and reiterated this at the hearing (paragraph 13). By contrast the visa applicant told the Tribunal that he was planning to bring his twin sons with him and was not including his mother in his travel plans (paragraph 15).
The Tribunal has had regard to the review applicant's appeal support letter but is concerned that its claims on a number of important issues discussed above were not supported by the evidence of the visa applicant. as outlined above. While the Tribunal accepts that the applicant has travelled to other countries and departed, as discussed at the hearing, these were not countries where he has close family that might give him incentive to stay.
The various inconsistencies outlined above regarding the visa applicant’s family ties and employment in China, as well as his travel plans, issues of direct relevance to his incentives to return home after his visit, raise serious concerns about the truthfulness and general credibility of the applicants’ evidence. In view of this, the Tribunal is not satisfied that the visa applicant has sufficiently strong employment or family ties that would be an incentive for him to return to China within the timeframe of his visa.
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
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Date of hearing: 6 March 2025