Wang (Migration)

[2021] AATA 3772

Wang (Migration) [2021] AATA 3772 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wenjia Wang

VISA APPLICANT:  Ms Xiaoyun Hu

CASE NUMBER:  1924103

HOME AFFAIRS REFERENCE(S):          BCC2019/4045531

MEMBER:Antonio Dronjic

DATE:17 September 2021

PLACE OF DECISION:  Melbourne

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 17 September 2021 at 3:00pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – sponsored family stream – visiting Australian husband – has significant personal ties in China – the visa applicant genuinely intends to stay temporarily in Australia – positive migration history–decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 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 Home Affairs on 28 August 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 applied for the visa on 15 August 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.

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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211. The review application was lodged with this Tribunal on 28 August 2019. With his application, the review applicant submitted a copy of the primary decision record and his statement dated 28 August 2019.

5. By letter dated 19 July 2021, the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a video hearing scheduled for 9 September 2021.

6. The review applicant appeared before the Tribunal on 9 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Ms Xiaoyun Hu.

7. In his evidence, Mr Wang stated that he is the visa applicant’s spouse. They married in April 2017 and the wedding ceremony was held in China. This is the review applicant’s second marriage. He divorced his former wife in late 2016 or at the beginning of 2017. He has no children from that marriage. Mr Wang’s parents live in China and he does not have any siblings either in Australia or overseas. He does not provide financial support to his parents as both are receiving the pension.

8. Mr Wang confirmed his residential address and stated that he owns a two‑bedroom apartment located in Dandenong, Victoria, where he currently lives. He owns another property in Boronia, Victoria, that is currently rented for approximately $1,800 per month. He is repaying a mortgage on the Boronia property (approximately $2,000 per month). He gave evidence that he and his spouse do not operate a joint bank account either in China or Australia.

9. Mr Wang is and has been since 2014 a full-time employee at TCL Electronics Australia. He has savings of approximately $60,000. The review applicant undertook to provide documentary evidence related to ownership of the Boronia property, his earnings and his savings.

10. The review applicant stated that he would like his wife to come to Australia for Christmas and stay for a period of 12 months. He acknowledged that it is difficult to make any definitive plans because of the current COVID-19 related travel restrictions imposed in Australia.

11. He stated that his wife did not apply for a spouse visa despite being married for more than four years. Mr Wang reiterated that on 30 September 2016, his wife was granted a visitor visa that remained valid for three years and that she travelled to Australia on eight occasions from October 2016 until July 2019. He further stated that she never overstayed her authorised period of stay in Australia or breached any of the conditions imposed on her visa.

12. The Tribunal enquired about Ms Hu’s incentives to return to China after completing her visit to Australia. Mr Wang stated that she owns an apartment in Shanghai together with her parents. He further stated that his wife commenced employment 12 months ago and is earning the equivalent of AUD2,000 per month. The Tribunal enquired what will happen to her job if she stays in Australia for 12 months. Mr Wang stated that she will have to quit her job.

13. The Tribunal noted that in his statement, the review applicant stated that his wife has elderly parents living in China and that she must look after them. The Tribunal enquired as to who will look after her parents if she stays in Australia for 12 months. Mr Wang stated that her parents are in their early sixties and can look after themselves.

14. Mr Wang stated that the last time he travelled to China was in December 2019. He stayed with his parents and his wife at his parents’ apartment.

15. The review applicant gave evidence that his spouse was previously married. She divorced her ex‑husband in 2014 or 2015 and she does not have any children from that marriage. Ms Hu is currently renting an apartment in Shanghai. She does not have siblings. Her parents recently sold their apartment and purchased a new one.

16. The Tribunal explained that his wife’s visa, if granted, will be subject to several conditions including condition 8503 that may prevent her from lodging an onshore application for a spouse visa. Mr Wang stated that his wife will return to China after 12 months and after that they will make decision as to whether to apply for a spouse visa.

17. Ms Hu gave evidence that she first met Mr Wang 20 years ago as they attended the same school in Shanghai. They reconnected in late 2016 after Mr Wang divorced his former wife. The visa applicant confirmed that between 2016 and 2019, she travelled to Australia eight times. She never overstayed or breached any of the conditions imposed on her visitor visa. She further stated that, if granted a visitor visa, she will comply with the conditions that will be imposed.

18. She gave evidence that she wants to travel and stay in Australia for 12 months to be with her husband. She stated that her husband lives alone and has no relatives or family support in Australia. She stated that, because of COVID-19, it is no longer possible to travel as often as she did before. She further stated that she is aware that she must obtain permission from the Australia Border Control to travel to Australia.

19. Ms Hu stated that she and her husband have not made a decision as to whether they want to live permanently in China or Australia. She further stated that both her parents and Mr Wang’s parents live in China and they will need their children’s help in the future.

20. Ms Hu stated that she commenced her full-time employment as a supply chain manager in December 2020, and that if she is granted a visa to stay in Australia for 12 months, she will most likely have to resign from her employment as no Chinese company will keep a job for her for such a long period.

21. When asked if she is aware of the conditions that will be imposed on her visa (if granted), Ms Hu gave evidence that she was aware that the visa would be granted subject to conditions 8101 (no work), 8201 (limited study or training), 8503 (no further visa application in Australia) and 8531 (must not remain past expiry of visa granted). The visa applicant stated that she will abide by these conditions.

22. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that both the review applicant and the visa applicant were given a fair opportunity to give evidence and present arguments.

23. On 15 September 2021, the review applicant submitted additional documentary evidence in support of the application. The list of documents is attached to this decision record and marked as Attachment A.

24. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.

26. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband. This is a purpose for which a visa in the Sponsored Family stream may be granted: (cl 600.231).

27. 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)).

28. Based on the evidence before it, including the visa applicant’s movement records, the Tribunal finds that the visa applicant was first granted a visitor visa on 9 September 2014. She arrived in Australia on 20 September 2014 and departed on 4 October 2014. There is no evidence before the Tribunal that on this occasion Ms Hu breached any of the conditions imposed on her visa.

29. Her second visitor visa was granted on 30 September 2016 and remained valid for three years. From October 2016 to July 2019, Ms Hu travelled and stayed in Australia eight times. On each occasion, she departed Australia within the authorised period of stay. There is no evidence before the Tribunal that she breached any of the conditions imposed on her visa. The Tribunal gives significant weight to these findings.

30. 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.

31. Based on the applicant’s evidence and her immigration history, the Tribunal is satisfied that the applicant does not intend to work in Australia if granted a visitor visa. The Tribunal accepts that her husband will provide financial support to the visa applicant during her proposed stay in Australia. Similarly, the Tribunal does not have concerns that the applicant is coming to Australia to study for more than three months, if at all.

32. Despite being married to Mr Wang for more that four years, Ms Hu did not apply for a partner visa in order to permanently migrate to Australia. She and her husband have not decided if they want to settle in Shanghai or Australia. Both the visa applicant and her husband are aware that the visitor visa, if granted, will be subject to condition 8503 (no further stay condition) that will effectively prevent Ms Hu from lodging an onshore partner visa application.

33. Based on her oral evidence and movement records, The Tribunal is satisfied that the visa applicant will not remain in Australia after the end of her permitted stay and that she will comply with condition 8531.

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

35. The visa applicant has parents who are living in China and the Tribunal accepts that the visa applicant maintains a strong relationship with them. Consequently, the Tribunal accepts that the visa applicant has significant personal ties in China.

36. The Tribunal notes that the visa applicant’s husband lives in Australia which may pose an incentive to the visa applicant to remain in Australia but only if this was considered in the absence of all the other factors. She has been in Australia eight times and has always complied with the conditions imposed on her visa. Despite being married to Mr Wang for more than four years, Ms Hu did not apply for Australian permanent residency.

37. The stated purpose of the visa applicant’s visit to Australia is to visit her husband. The visa applicant wishes to remain in Australia for a period of up to 12 months. The Tribunal finds that the purpose of the visa applicant’s visit and her proposed stay in Australia is consistent with the purpose for which the sponsored visitor visa is granted.

38. For the above reasons, the Tribunal is 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

39. 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.

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    ·Certification of Deposit issued by ICBC dated 09/09/2021

    ·Letter from Jessica Sammut dated 09/09/2021

    ·Commonwealth bank statements dated 15/09/2021

    ·Letter from Wang Yu dated 13/09/2021

    ·Payslips issued by TCL Electronics Australia for 2021

    ·Commonwealth bank documents regarding home loan addressed to Wenjia Wang