Wang (Migration) - [2025] ARTA 333

WANG (MIGRATION) [2025] ARTA 333 (21 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Zhili Wang
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2310034

Tribunal:Senior Member L. Symons
Place:Sydney
Date: 21 February 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa

Senior Member L Symons
Statement made on 21 February 2025 at 04:35pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visit daughters – two younger daughters are studying in Australia – strong incentives to live here permanently – using Visitor visas to maintain residence in Australia – not a change in the applicant’s circumstances – not satisfied that exceptional circumstances exist for the grant of the visa – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 65, 359

Migration Regulations 1994, Schedule 2, cl 600.215

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 23 June 2023 to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied to the Department of Immigration and Multicultural Affairs (the Department) for the visa on 2 May 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 (the Regulations). Relevantly to this case, they include cl.600.215, which requires the applicant to satisfy the Minister that exceptional circumstances exist for the grant of the visa.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215. This is because the delegate was not satisfied that exceptional circumstances exist for the grant of the visa. On 8 July 2023, the applicant applied to the Tribunal for a review of this decision.
The applicant appeared before the Tribunal via video on 8 October 2024 to give evidence and present arguments. This hearing was conducted as a joint hearing of an application for review by the applicant’s wife, Ms Guoqin Zhu, with their consent. They each indicated that they were giving evidence in relation to their respective applications and as witnesses in the other’s case. The Tribunal also received oral evidence from Ms Guoqin Zhu. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his eldest daughter, Ms Jin Wang, who attended the hearing via video.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for purposes of the proceeding after the 14 October 2024. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal (item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The issue in this case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that exceptional circumstances exist for the grant of the visa if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more Visitor visas or subclass 417 (Working Holiday) visas or subclass 462 (Work and Holiday) visas or a Bridging visa for a total period of more than 12 consecutive months.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 23 June 2023. It indicates that he last arrived in Australia on 27 August 2019 as the holder of a Subclass 600 Visitor visa that was valid until 16 May 2023. On 2 May 2023, he applied for another Subclass 600 Visitor visa requesting a further stay until 1 May 2024. This would result in him staying in Australia for a total period of more than 12 consecutive months. In his visa application, he stated that the reason for the extension is that he wanted to stay in Sydney with his daughter and grandson as his daughter was working, his son-in-law was overseas and he wanted to help them through this difficult time.
In considering whether exceptional circumstances exist for the grant of the Visitor visa, the Tribunal has had regard to the policy guidelines in PAM GenGuide H – Visitor visas. It states that the principles of the Visitor Program are that visitors to Australia must genuinely intend only to visit Australia temporarily, not work unlawfully, not engage in studies or training for more than 3 months, have, or have access to, adequate means to support themselves during the period of the visit so that they do not need to access Australia’s social welfare system and leave Australia on or before the date their visa ceases unless they make a valid application to stay for a longer period to the benefit of Australia.
As the Act does not define exceptional circumstances, the Tribunal has considered the policy guidelines in PAM GenGuide H – Visitor visas in relation to exceptional circumstances which it states may include:
·the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support
·a change in the applicant’s circumstances (or the circumstances of an Australian resident) that:
◦       could not have been anticipated at the time their Visitor visa was granted and
◦       is beyond the visa applicant’s control and
◦       where not granting a visa would cause significant hardship to an Australian   resident or citizen.
During the hearing, the applicant gave evidence that he is retired. He last worked in China in about September or October 2009. He has never worked in Australia. When asked about his current source of income, he responded that his daughter (Ms Jin Wang) works here. She is supporting him financially. He brought some money from China. He later stated that he sold his property in China and supports himself. He has two other daughters who are in Australia on Student visas. They are aged 26 years and 25 years respectively. They are both planning to apply for permanent residence in Australia. He has no family in China.
The applicant gave evidence that he has visited Australia several times. He last arrived in Australia on 26 August 2019. His Visitor visa was extended during the Covid 19 pandemic. He and his wife live with their daughter (Ms Jin Wang). She works full time as a registered nurse. She has been doing that job for the last 2 years. She is married and has a son who is 9 years old. Her husband lives and works in China. He sometimes visits Australia but does not come here often. He spends most of his time in China. His father is in poor health so he takes care of him. When asked whether his son-in-law has any plans to live in Australia, he responded no. He then said he has no idea of his plans. He then said does not have any plans.
The applicant stated that his wife takes their grandson to school and picks him up after school. He sometimes accompanies her to pick him up. When asked what else he does to help his daughter, he responded that he sometimes takes care of his grandson and sometimes helps with cooking and cleaning. When asked what his wife does to assist their daughter, he responded that she spends most of her time with their grandson.
The applicant stated that there have been no changes in his circumstances or his wife’s circumstances since he was granted his last Visitor visa on 16 November 2022. There have been no changes in his daughter’s (Ms Jin Wang’s) and her family’s circumstances since 16 November 2022.
The Tribunal referred to the applicant’s statement in his visa application that he wanted his visa extended until 1 May 2024, noted that this date had expired and asked him why he had not returned to China. He responded that they needed to stay in Australia to take care of their grandson. His daughter works full time and sometimes has to work at night. She is also studying a Master’s degree. The family needs them.
The Tribunal informed the applicant that one of the requirements for the grant of this Visitor visa was that there are exceptional circumstances for the grant of the visa. When asked whether there are exceptional circumstances for the grant of the visa, he responded that he respects Australian law. He wants the Tribunal to consider his family situation as there are some special reasons. When asked what the special reasons are, he responded that his daughter has to work full time and sometimes works at night. There is no one else who can take care of his grandson. When asked about his two other daughters, he responded that his grandson has a food allergy and they have to cook for him.
The Tribunal noted that it had no evidence before it in relation to his grandson’s food allergy. The applicant responded that they have a letter from the hospital which states that he has a milk allergy. He can ask his daughter to provide it to the Tribunal. The Tribunal asked him whether the refusal of this visa would cause significant hardship to an Australian resident or citizen, he responded that it is hard for him to say. When they are in Australia, they obey the laws. His eldest daughter (Ms Jin Wang) and his grandson are Australian citizens.
The Tribunal asked the applicant whether either his eldest daughter or his grandson would be caused significant hardship if he is not granted this visa. He responded yes. His eldest daughter has to work at night and study. When she has to work at night, no one can take care of his grandson. Otherwise, she cannot go to work at all. She will lose her job and not have an income. They have been taking care of their grandson. He will have problems with food and living conditions. He cannot go to school. When the Tribunal pointed out that there are thousands of children with allergies who go to school, he responded that the key issue is that his eldest daughter has to work. If they return to China, his daughter will lose her job because she has to take care of her child.
The Tribunal asked the applicant whether he and his wife had applied for permanent visas to live in Australia. He responded no, as they cannot. He has three daughters but only one has Australian citizenship. Australian law requires that half of his children have to have Australian citizens. When asked whether it is his intention to apply for a permanent visa once one of his other daughters gets Australian citizenship, he responded no. He does not have any plans. He has property in China and his home is there. When asked whether he had not sold his property in China, he responded that he has three other properties in Henan Province.
The Tribunal asked the applicant for how long he is seeking this visa. He responded one more year so that all the problems can be resolved. When asked how they will be resolved, he responded that his son-in-law would return to Australia and solve the problem. When the Tribunal reminded him of his earlier evidence about his son-in-law, he responded that he would return to Australia. He is also an Australian citizen. He had nothing further to add.
The applicant’s wife, Ms Guoqin Zhu, gave evidence that she is retired. She used to work in a factory that produced prams but it closed down during the Covid 19 pandemic. She has never worked in Australia. When asked about her current source of income, she responded that it is from the proceeds of sale of a property. They brought the money here. They brought some cash and have also managed through bank transfers. They financially support themselves (in Australia). She has siblings in China but no other family there.
Ms Guoqin Zhu gave evidence that her three daughters live in Australia. She has visited Australia about six times. Her first trip was in 2009. She last arrived in Australia on 26 August 2019. She visited her eldest daughter when she was a student here. She is now working full time as a registered nurse and has done this job for more than 2 years. She is also studying full time and studies online. Her son-in-law has never worked in Australia and it has always been his intention to work in China. His mother passed away 7 years ago and he has been taking care of his father in China. He visited Australia for a short time in August 2024 and returned to China. He does not have any plans to return and live in Australia at the moment as he cannot.
Ms Guoqin Zhu stated that her eldest daughter has one son who is 9 years old. He attends school and is in fourth grade. When asked what she does to care for him, she responded that she takes him to and from school and takes him to swimming classes, piano classes, basketball games and curriculum classes. When asked what she does to help her eldest daughter, she responded that she does some grocery shopping, cleans the house with her husband and takes care of her grandchild so that her daughter can spend her time working and studying online. The most important thing her husband does is cooking for their daughter and grandson.
Ms Guoqin Zhu stated that there have been no change in her circumstances or her husband’s circumstances since she was granted her last Visitor visa on 16 November 2022. There have been no changes in her eldest daughter’s and her family’s circumstances since 16 November 2022.
The Tribunal referred to Ms Guoqin Zhu’s statement in her visa application that she wanted her visa extended until 2 May 2024, noted that this date had expired and asked her why she had not returned to China. She responded that if she returns to China her daughter will lose her job.
The Tribunal informed Ms Guoqin Zhu that one of the requirements for the grant of this Visitor visa was that there are exceptional circumstances for the grant of the visa. When asked whether there are exceptional circumstances for the grant of the visa, she responded that it is mainly about her (eldest) daughter. She is going through a difficult time. They need someone to take care of her son. She has not finished her studies yet. The work she is doing is special work. She has eight night shifts a month. The most important thing is that no one can take care of her child. Both her daughter and her grandson need them to be here.
The Tribunal asked Ms Guoqin Zhu whether the refusal of this visa would cause significant hardship to an Australian resident or citizen. She responded that the biggest problem is that her daughter will lose her job because she cannot go to work. When asked whether her daughter and grandson are Australian citizens, she responded no. When asked whether it is her intention to stay in Australia permanently, she responded no. When asked when she planned to return to China, she responded that she wants her daughter to finish her studies at the beginning of 2025 and wait until her grandson is older. She thinks that when he is in High School his life will be better. She would like her visa to be extended for 2 years. She had nothing further to add.
The Tribunal raised a number of issues with the applicant. The Tribunal noted that his reasons for seeking the Visitor visa may lead it to the conclusion that he wanted a Visitor visa for the purpose of being a carer for his grandson. The Tribunal noted that this was not a purpose for which a Visitor visa is granted. He declined to respond.
The Tribunal noted the applicant’s evidence in relation to his son-in-law was that he lives and works in China. He sometimes visits Australia but does not come here often. He spends most of his time in China. His father is in poor health so he takes care of him. When asked whether his son-in-law has any plans to live in Australia, he responded no. He then said he has no idea of his plans. He then said he does not have any plans. His wife’s evidence was that her son-in-law has never worked in Australia and it has always been his intention to work in China. His mother passed away 7 years ago and he has been taking care of his father in China. He visited Australia for a short time in August 2024 and returned to China. He does not have any plans to return and live in Australia at the moment as he cannot.
The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may lead it to conclusion that his eldest daughter’s husband lives in China and has no intention of living in Australia and that it is his intention to live here permanently. He declined to respond.
The Tribunal noted the applicant’s evidence in relation to the extension of his Visitor visa was that he would like another Visitor visa for 1 year as his son-in-law would come to Australia then and can take over the care of their grandson. His wife’s evidence was that she would like her Visitor visa extended for 2 years to enable her daughter to complete her studies and her grandson to go to High School. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may lead it to conclusion that he will not return to China in a year’s time. He declined to respond.
The Tribunal noted the applicant’s evidence that his two younger daughters are studying in Australia and it is their intention to apply for permanent residence in Australia. He has no immediate family in China. His only grandchild lives in Australia. As his grandparents, he and his wife do a lot to care for him. The Tribunal concludes that both of them are attached to him. As they get older, it is good to be with their children and grandchild. The Tribunal noted that these are all strong incentives to live here permanently. This is not a purpose for which Visitor visas are granted. He declined to respond.
The Tribunal informed the applicant that it had a number of other concerns in relation to his case. He and his wife had lived in Australia since 2019. He had used Visitor visas to extend his stay in Australia. He is now wanting a Visitor visa for another 1 year. It may find that he is using Visitor visas to maintain residence in Australia. This is not a purpose for which Visitor visas are granted. He declined to respond.
The Tribunal noted that supporting his daughter is normal for a parent. Wanting to be with his grandson and help him is also normal for a grandparent. The Tribunal noted that there are permanent visas he could apply for to do that. It may not be satisfied that there are exceptional circumstances for the grant of the visa. He declined to respond.
The Tribunal asked the applicant whether he would like some additional time to provide evidence of his grandson’s allergy. His representative, who is his eldest daughter, responded that it would take too long to organise an appointment with a specialist and stated that she did not wish to provide that evidence.

Having considered all the evidence, the Tribunal accepts that the applicant’s eldest daughter is a permanent resident in Australia and lives here with her 9 year old son. The Tribunal accepts that he has two other daughters, who are students in Australia, are on Student visas and intend applying for permanent residence in Australia. The Tribunal accepts that he has no immediate family in China. The Tribunal accepts that his eldest daughter is married and her husband lives and works in China. The Tribunal accepts that she works full time as a registered nurse and is required to do shift work. The Tribunal accepts that she also studies online and is expected to complete her studies in early 2025.
The Tribunal accepts that the applicant and his wife have been assisting their eldest daughter by caring for her 9 year old son and by cooking and cleaning her house. The Tribunal accepts that they wish to continue to do so to enable their eldest daughter to keep working. The applicant has claimed that his grandson has a food allergy and that he cooks for him. The Tribunal has not been provided with any evidence to support this claim. Nevertheless, the Tribunal is prepared to accept that he has an allergy to milk. The Tribunal is not satisfied that this is a serious medical condition.
The applicant’s eldest daughter studied in Australia and then obtained employment as a registered nurse. It is standard practice that nurses work shift work including night shifts. This is something that the applicant’s eldest daughter would have been aware of when studying and when she applied for employment at a hospital. This is something the Tribunal would expect her to have communicated to her parents. The applicant’s evidence is that there were no changes in his circumstances or his eldest daughter’s circumstances since he was granted a Visitor visa on 16 November 2022.
This was therefore not a change in the applicant’s circumstances (or the circumstances of an Australian resident) that could not have been anticipated at the time his Visitor visa was granted on 16 November 2022. The Tribunal is not satisfied that these circumstances fall within the guidelines for exceptional circumstances.
In view of the above, the Tribunal finds that the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of a subclass 600 Visitor visa for a total period of more than 12 consecutive months. The Tribunal is not satisfied that exceptional circumstances exist for the grant of the visa. Therefore, the applicant does not meet the requirements of cl.600.215 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.
Date of hearing: 8 October 2024
Representative for the Applicant:Ms Jin Wang