Wang (Migration)

[2021] AATA 3595

Wang (Migration) [2021] AATA 3595 (6 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jinbao Wang

VISA APPLICANT:  Mr Yongguo Wang

CASE NUMBER:  1920638

HOME AFFAIRS REFERENCE:               BCC2019/3382466

MEMBER:Rosa Gagliardi

DATE:6 September 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:       

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

  

Statement made on 06 September 2021 at 3:39pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s daughter undertaking tertiary studies in Australia – previous compliant travel to other countries – limited evidence of the applicant’s work history – work opportunities – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 18 July 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 5 July 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.

5. The review applicant/sponsor appeared before the Tribunal on 5 August 2021 and

   
   

   16 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, Mr Yong Guo Wang, overseas, who is the sponsor’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl. 600.231.

   Background

9. The applicant is a 50-year-old married male from Shandong, China.  Together with his wife he claims to have one daughter, 21 years of age, who is undertaking tertiary studies.  Initially, the applicant claimed he wanted to visit Australia for around 6 months.  At hearing with the Tribunal the sponsor stated that it was from 3 to 5 months only, and when the Tribunal put to the applicant at hearing that 5 months seemed like a lengthy period to be away from his family and work, the applicant agreed and stated that he only wanted to stay 3 months.

10. The sponsor came to Australia on a Guardian visa as he has a child who is studying here. 

11. It was claimed at hearing, as it has been in the sponsor’s statement to the Department/Tribunal, dated 28 July 2019, that the sponsor was desirous of thanking his brother for having cared for their mother who unfortunately passed away in April 2019, in China by way of an invitation to Australia and to also give him an opportunity to relax.  In the words of the sponsor:

    At that time my work was extremely busy so I could not find time to take care my mother and I feel very lost and regret after her passing. My brother had been caring for my mother for 10 months during her illness. He spent many days and nights care for her, tried many treatments, and witnessed her suffering. I owed my brother for what he had done for my mother. My brother has been feeling very sad after my mother passed away. In our family, my mother had always been the person we looked up for and to seek support from ever since my father passed away thirty years ago. Now she is gong (sic), my brother and I feel very lost. I would like my brother to come to Australia to spend some time with me. This will help us to release some painful feelings…

12. At the time of application, the applicant and sponsor had submitted little evidence of the applicant’s financial circumstances in China, or other details of his salary and general work situation.  At hearing the Tribunal asked for specific information regarding such matters and some material has now been submitted to the Tribunal as discussed below.

    cl.600.211(a)

13. 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)).

14. The Tribunal has taken into account the evidence demonstrating that the applicant had spent several years undertaking research and study in Japan relatively less recently, and that he went backwards and forward without attempting to remain in Japan on an ongoing basis. 

15. The Tribunal also notes that the applicant had a brief period on tour in Europe and the United Kingdom and the Tribunal has no reason to doubt that the applicant complied with his conditions on that occasion. 

16. The applicant stated that he enjoyed travelling and his spouse was very supportive of him doing so.  He had wanted to bring his wife to Australia, but she was very busy at her work and could not accompany him.

17. The Tribunal places some weight on the applicant’s previous travel.  Nonetheless, the Tribunal is concerned that the applicant has a brother who is settled in Australia which would make any transition to a new country much easier than had he attempted to stay in countries in which he had no personal connections such as in Japan, Europe or the United Kingdom.  However, this matter is not determinative of the review.

    cl.600.211(b)

18. 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:

    ·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.

19. At hearing the Tribunal asked of the applicant and sponsor specific information given the paucity of evidence before it regarding the applicant’s circumstances.  This included:

    ·Evidence of the applicant’s savings;

    ·Evidence of the applicant’s salary and where it was deposited on a monthly basis;

    ·Evidence of his current workplace and how long he has been working there and that the contract is for 5 years;

    ·A summary of the applicant’s work experience prior to 2018 when he started his role as a Manufacturing Engineer in the machinery manufacturing company; and

    ·Evidence of the applicant’s previous travel.

20. At hearing the applicant stated that his wife worked with the government as an academic/researcher and some of his funds were combined with hers.  He stated that he earned 96,000 RMB annually, which is approximately the equivalent of AUD20,005.10.

21. The Tribunal has before it the following:

    ·Passport details confirming the applicant’s travel to Japan, Europe and the United Kingdom as claimed;

    ·A certificate from the applicant’s employer dated 21 June 2019 stating the applicant had worked in the company from April 2018 and that his contract would expire in April 2023.  The applicant’s employer also confirmed that the applicant earned 96,000 RMB annually.  The letter, which does not appear to be signed, also states that the applicant will continue to work in the company on return from his visit to Australia;

    ·Statement from the Agricultural Bank of China confirming that the applicant as at August 2021, had a deposit of 100,000 RMB (equivalent of AUD20,852.61); and

    ·An untranslated document.

22. The Tribunal accepts that the applicant is employed as a Manufacturing Manager working in that role since April 2018 as claimed.  The sponsor at hearing stated that the applicant had worked with the company for a lengthy period after graduating, and that it was only in 2018 that he started as a Manufacturing Manager.  Given the limited evidence to support that the applicant has been in full-time employment since leaving an education provider as claimed, the Tribunal asked that he provide a summary of his past work history.  This summary has not been provided.  The applicant is 50 years of age and it would be expected that he would have started working prior to April 2018 in some capacity, even if within the same company or not.  On the evidence before it, the Tribunal has limited evidence of the applicant’s work history or other material that the applicant has been, apart from a period during the COVID-19 pandemic, fully employed.

23. Apart from the opaque nature of the applicant’s work history, the Tribunal also notes that the applicant’s current work is not ongoing and that he is due to finish his contract in April 2023, and will, therefore, have to enter into new arrangements (whatever these might be) within less than two years.  In the absence of probative evidence to the contrary, the Tribunal is unable to discern that the applicant has any work arrangements beyond 2023.  It could be argued that when the applicant applied for the visa, he had more than several years to go on his contract.  Nonetheless, the Tribunal is assessing the applicant’s circumstances at this current time – at the time of decision.  It is also not clear to the Tribunal whether his employer would be prepared to pay him on his leave of say 3 months.  If not, the Tribunal queries why the applicant would not want to maximise his time at work to earn money prior to entering any further work arrangements, rather than spending his resources to visit Australia. 

24. The applicant has stated that he is supporting his daughter studying at university in China and while she may be at the end of her studies, and the applicant’s wife might also be assisting to fund the studies, the Tribunal queries, given the applicant’s circumstances where his work future is not ongoing, and he is yet of working age, why visiting Australia should be a priority at this time.

25. The Tribunal appreciates that the applicant has cared for his and the sponsor’s mother during an illness, and that the sponsor feels he needs to recompense the applicant in some way, and to give him the opportunity to relax.   The Tribunal is concerned, however, that the applicant is close to a juncture in his working life where it is not clear whether he will have any earning capacity beyond April 2023.

26. The Tribunal has also taken into consideration the applicant’s earnings of 96,000RMB per annum.  This salary is well below any wage the applicant could earn in Australia in a managerial role.  The applicant’s current earnings also leave the Tribunal to query whether the applicant genuinely intends to stay temporarily in Australia and whether he might not be coming here to pursue long-term work opportunities.

27. The Tribunal also notes that it had been contemplated initially that the applicant might come to Australia for 3-5 months even though the applicant at hearing stated that he would now only stay 3 months.  Given the applicant’s circumstances, in which it appears that he has no job certainty after April 2023, this appears to be a lengthy period to be away from his home country.  The Tribunal has taken into account that the sponsor has undertaken to cover the applicant’s expenses, nonetheless, the Tribunal considers the timing of the applicant’s visit inconsistent with someone who, on the evidence, does not have job security.

28. Regarding the applicant’s savings of 100,000 RMB, the Tribunal notes that if the sponsor were to take responsibility for all the applicant’s expenses, the applicant might not have need to dip into his life savings.  Nonetheless, the Tribunal has concerns about the provenance of the funds as the bank account does not demonstrate how the applicant has been able to save what is essentially the equivalent of an annual salary over the years.  The bank account does not reflect, for example, the applicant’s earnings and it is difficult from this statement to deduce that the applicant has a savings history.  The Tribunal takes into consideration that the applicant stated that he combined his resources with his spouse, but the Tribunal is unable to discern whether the 100,000 RMB represents the combined savings he and his wife have, which in that case would mean that the applicant’s personal resources might be even less than assumed.

29. The Tribunal is not satisfied from the material that the applicant’s ties to China by way of employment and financial circumstances are such that they would motivate the applicant not to seek an ongoing presence in Australia.  On the contrary, the Tribunal considers that they are conducive to the applicant’s stay here on the basis of the limited evidence that the applicant has employment beyond 2023.

30. The applicant also stated that he had a sister in China, his wife’s father and her family and that this would ensure that he returned to his home country on expiry of his visa.  The Tribunal has taken these familial bonds into account but considers that given the applicant’s own uncertain circumstances, these bonds do not outweigh the Tribunal’s concerns about whether the applicant does have a genuine intention to stay in Australia temporarily for the purpose for which the visa is granted.

    cl.600.211(c)

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

32. The Tribunal places weight on the solid savings held by the applicant in his bank account and does not dispute that he would be in a position to assist the applicant meet his daily needs, including airfares and other eventualities in Australia.  Nonetheless, the sponsor’s financial position is not outweighed by the applicant’s own less than secure work and financial situation.  As such, the Tribunal is not satisfied that the sponsor’s own circumstances go to whether the applicant genuinely intends to stay temporarily in Australia.

33. The Tribunal also notes that the sponsor is in a position to secure the visit with a bond.  Given the Tribunal has concerns that the applicant may be seeking to remain in Australia on an ongoing basis, the offer of a bond or the capacity to pay it, does not detract from the Tribunal’s misgivings about the applicant’s intentions.

    Conclusion

34. For the above reasons combined 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

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

    Rosa Gagliardi
    Member