Xie (Migration)

[2021] AATA 2141

Xie (Migration) [2021] AATA 2141 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nan Xie

VISA APPLICANT:  Mrs Jie Meng

CASE NUMBER:  1824903

HOME AFFAIRS REFERENCE(S):          BCC2018/2762404

MEMBER:Linda Holub

DATE:9 April 2021

PLACE OF DECISION:  Sydney

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 9 April 2021 at 4:58 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visa applicant genuinely intends to stay temporarily in Australia – positive migration history – compliant in the past –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 22 August 2018 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 24 July 2018. 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211. The delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes set out.

5. The review applicant appeared before the Tribunal on 8 April 2021 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. 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 telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages although the review applicant mostly spoke in English.

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

BACKGROUND

1. The review applicant was born in 1985 and she lives in Australia with her husband and child. She first arrived in Australia in April 2008 as a holder of a Student visa. In May 2011, she was granted a Skilled (Residence) (Onshore) VB 866 – Sponsored (full fee) visa. She became an Australian citizen by grant in January 2013.

2. The visa applicant is a Chinese citizen who was born in 1959. She was planning to travel with her husband to Australia for a family visit for a period of up to 12 months. Her husband was granted the visa, but she was not.

CONSIDERATION OF CLAIMS AND EVIDENCE

10) 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.

1. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant and her family. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

12) 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)).

13) According to Department records, the visa applicant has visited Australia eight times as a holder of a visitor visa. She first arrived in Australia in November 2011 and she last departed Australia in May 2018. There is nothing that indicates to the Tribunal that the visa applicant overstayed her visa on those occasions she has been granted a visitor visa. In a submission made to the Tribunal by the review applicant, she stated that since her child was born in September 2014, the visa applicant has been visiting Australia more regularly as she has been his carer.

14) The review applicant’s father has also visited Australia on numerous occasions  as a holder of a visitor visa. He first arrived in Australia in November 2012 and he last departed Australia in December 2019, travelling here six times during that period. There is nothing that indicates to the Tribunal that the visa applicant’s father overstayed his visa on those occasions he has been granted a visitor visa.

15) 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.

16) The review applicant explained that she first came to Australia on a Student visa in 2008. She later did a master’s degree by research in Chemical Engineering at the University of Sydney. She is currently employed by the University. She stated that aside from visiting family and holidays, she has essentially resided in Australia since 2008.

17) The review applicant stated that she lives in a house with her husband and their son. Her husband is a Chemical Engineer with Licella Technology. She stated they have a mortgage on their house and they also have an investment property. 

18) The visa applicant is retired and declared that her daughter will provide accommodation and take care of expenses for her trip. The review applicant confirmed this at the hearing. She stated that her mother has not had any problems in China because of her religion, ethnicity or for any political or security situation.

19) In relation to the incentives for the visa applicant to return to China after her visit, the review applicant stated that her mother’s mother is still alive as are her siblings and her father’s parents. She stated her parents have their own apartment and their own retirement pension medical insurance in China. She also has her own social circle.

20) The review applicant stated that the visa applicant has not seen her grandson for two years and she just wants to visit them. She intends to stay for a period of no more than three months. She stated that her son now goes to school and no longer requires her mother to assist them as she used to.

21) The review applicant stated that the visa applicant’s health is good and as far as she is aware, her mother does not take any medication.

22) The review applicant stated that her parents do not intend to live in Australia. If they change their minds in the future, they will apply for an appropriate visa. At this stage, they want to be able to spend time with her and her family as she is an only child.

23) The review applicant stated that there is an incorrect reference to her mother remaining for more than 12 months in 2017-2018. She stated that a calculation of the dates will show that her mother came and went but the total was closer to 11 months. She requested that this be recorded as she would prefer the incorrect statement be corrected 

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

Findings

25) Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for up to three months for the purpose of visiting her daughter and her family. The Tribunal accepts that the review applicant will fund the cost of the visa, airfare and that she will stay with the review applicant and her other siblings who will cover the cost of her living expenses while she is in Australia. The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia. The Tribunal accepts that the visa applicant’s home, her mother and extended family and grandchildren provides sufficient incentives for her to return to her country of residence at the end of her permitted stay in Australia. The Tribunal has put significant positive weight on her and the family’s very positive migration history. Condition 8503 refers to entitlement and does not require compliance. The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

26) 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

27) 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.

Linda Holub
Member