Xie (Migration)

[2018] AATA 3472

Xie (Migration) [2018] AATA 3472 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Caiqin Xie

VISA APPLICANT:  Mr Kangming Xie

CASE NUMBER:  1712270

HOME AFFAIRS REFERENCE(S):           BCC2017/1617014

MEMBER:Nicole Burns

DATE:20 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2018 at 3:47pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family Stream – Wishing to visit daughter and grandchildren – Genuine temporary entrant – Family’s adverse immigration record – Incentives to return – Visa applicant’s wife ill –  Review applicant prepared to lodge a security bond – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231, 600.612,

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information

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 Immigration on 31 May 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 2 May 2017. 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 (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 appeared before the Tribunal on 16 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, Mr Craig Cameron, and the visa applicant (who is the review applicant’s father) via the telephone in China. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his daughter, son, son-in-law and granddaughter. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).  Given the visa applicant has not visited Australia before, this sub-clause does not apply.

11. 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.

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

13. The delegate was not satisfied that the visa applicant had a genuine intention to only visit Australia and concluded that there was a likelihood he would overstay and seek to remain in Australia.  The delegate considered it necessary to apply a higher degree of scrutiny to the application, because of ‘the applicant’s family links to Australia and the circumstances surrounding their arrival and ongoing residence’.  The Tribunal has discussed these matters in more detail below. 

14. At the Tribunal hearing the review applicant gave evidence about the planned visit and her father’s circumstances in China.  She said because she and her husband work, it is difficult for them to visit China and she wants to see her father.  They plan for him to stay with them in the house they own in Melbourne for a month.  She lives there with her husband, brother and daughter.  Although the review applicant does not work currently, she has in the past and her husband works as a traffic control manager.  The review applicant said her father works in China and has savings and will pay for his visit, but she will also help out.  Financial and employment documents have been provided in relation to the visa applicant and the review applicant and her husband in Australia and the Tribunal accepts that is the case.  The Tribunal is satisfied they have the financial capacity to support the proposed visit. 

15. In terms of the visa applicant’s employment ties in China, the review applicant told the Tribunal that her father works as a technical adviser for a construction company: a job he has held for many years.  In her written submission to the Tribunal the representative states that the visa applicant has worked for Fuzhou Gangshen Construction Co. Ltd. since 2011; his annual salary has been raised from RMB96,000 to RMB100,000 (excluding annual bonuses); and this indicates he has stable income in China with no intention to work in Australia.  The visa applicant’s oral evidence to the Tribunal confirmed that was the case.  Evidence has been provided to support the visa applicant’s employment status and savings, including a letter from his employer, an employment certificate, bank statements, deposit certificates, tax return information and pay slips.  The Tribunal accepts the visa applicant has a permanent ongoing job in China which he receives a reasonable income and this would act as some incentive for him to return to China. 

16. In terms of family and other ties, the review applicant told the Tribunal her father stays at accommodation linked to his work site during the week and at their family home which he owns in Fuqing, Fujian Province on the weekends with his wife (the review applicant’s mother), and his 98 year old mother who rotates her time with her four sons every three months.  The visa applicant confirmed these arrangements in his oral evidence to the Tribunal and emphasised the cultural importance of caring for his mother, which will be a key factor for him to return to China.  Whilst that may be the case, the Tribunal notes the visa applicant has three other brothers in China who help with the care of their mother. The review applicant said her mother, who was diagnosed with cancer, has recently completed radiation therapy and chemotherapy and her father would not be able to be away from China for too long, because he needs to help care for her.  In her written submission the representative noted that in addition to her cancer diagnosis, the visa applicant’s wife has hypertension and other diseases which need daily medication.  A number of medical documents have been provided to Tribunal as evidence of such and the Tribunal accepts the visa applicant’s wife is recovering from cancer treatment and her health issues would act as some incentive for the visa applicant to return to China.  As well, the review applicant told the Tribunal she has a sister who lives with her husband and two children in Xi’an, Shaanxi Province: her father sees them for Chinese new year and other occasions, as well as other relatives such as his siblings.  Taking into account these considerations, the Tribunal accepts that the visa applicant’s family ties and responsibilities in China would act as a reasonably strong incentive for him to return there before the expiry of any visitor visa that may be granted to him.  On the other hand, the Tribunal notes two of the visa applicant’s three children have migrated to Australia: one permanently and the other is seeking to stay here permanently (discussed in more detail below). 

17. The Tribunal also accepts the evidence that the visa applicant owns property and land in China but notes these could be sold if required.  These do not act as strong incentives for him to return to China.

18. The Tribunal accepts the submission that the visa applicant has travelled overseas before – specifically to Russia, Mongolia and Thailand – for a holiday in 2002 and there is no indication that he overstayed his visas.  The Tribunal gives this consideration some weight but notes the visa applicant’s overseas travel is limited.  The Tribunal finds this fact does not overcome the significant concerns in this case, as set out below. 

19. In the Tribunal’s view there also exist the following factors that indicate that the visa applicant may not have a genuine intention to stay temporarily in Australia and not comply with the condition that he must not remain in Australia after the period of the permitted stay in Australia. 

20. First, the review applicant’s adverse immigration history causes the Tribunal to doubt the visa applicant’s intention to stay temporarily in Australia.  The review applicant told the Tribunal she first came to Australia on a student visa in 2006 and after her student visa expired, stayed unlawfully for a period of time.  In the representative’s written submission provided to the Department it states that the review applicant overstayed her previous visa from 5 May 2010 to 24 October 2011.  At hearing the review applicant acknowledged it was wrong (to overstay) but said her migration agent at the time had failed to tell her she needed to submit further documents in support of a temporary skilled visa application, which resulted in a refusal.  Even if the Tribunal accepts that was the case, it notes that she failed to tell the Department after she realised she was unlawful.  At hearing the review applicant said once she realised she was unlawful she wanted to solve the problem but was young and did not know how.  The representative also emphasised her youth to explain why she did not regularise her immigration status in her written submission to the Tribunal.  However the Tribunal is not persuaded by this explanation, noting that the review applicant is educated, has studied in Australia, and had some familiarity with the migration process, having arrived here in 2006 as a student, at the time. 

21. The representative submitted in writing that the review applicant’s circumstances has significantly changed now that she holds a permanent Partner visa (granted on 17 December 2013) and has a family (including a daughter).  She requested the Tribunal to place weight on the review applicant’s efforts to actively regularise her immigration status.  The Tribunal has had regard to this submission, however notes the review applicant stayed unlawfully in Australia for over a year and appears only to have sought to regularise her status when she was in a position to apply for a permanent visa.  The Tribunal is mindful that the review applicant’s immigration history in Australia should not automatically be assumed to apply to the visa applicant.  Nonetheless, it does raise a concern that the visa applicant may also have an intention to stay longer in Australia than what any visitor visa may permit.

22. Second, the review applicant’s brother’s adverse immigration history causes the Tribunal to doubt the visa applicant’s intention to stay temporarily in Australia.  [Details deleted].

23. [Paragraph deleted].

24. The review applicant told the Tribunal her father has applied to come to Australia for one month only to spend some family time with them and it ‘impossible’ for him to stay, given his work responsibilities in China, the fact that his wife is unwell and needs care, and his mother is old and also needs care.  As well, he is 58 and does not speak English. The visa applicant questioned how he could stay in Australia given he does not speak English, is old and has responsibilities to his wife and mother in China.  The review applicant’s husband’s oral evidence was to confirm his support for the visit.  In her written submission to the Tribunal the representative argued, among other things, that the visa applicant would not forfeit any security deposit or jeopardise his chance to visit his children and grandchild in the future in Australia by overstaying any visitor visa that may be granted to him.  At hearing the representative argued that the visa applicant’s family and employment ties to China are stronger than any negative concerns.  The Tribunal understands why the visa applicant wants to visit Australia and has given weight to the existence of his family and employment ties and responsibilities in China.  However, these factors do not overcome the serious concerns the Tribunal has with this case, in particular the review applicant and her brother’s adverse immigration histories as discussed. 

25. The Tribunal notes at hearing the review applicant indicated that she was willing to offer a security bond to enable a visitor visa for his father, and the representative said referred to AUD20,000 or AUD30,000 which she said was not a small amount.  The Tribunal has taken that into consideration.  However, even with the lodgement of a security, having weighed up the reasons given for his return to China against the factors which would encourage him to remain here, 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.  

26. 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

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

    Nicole Burns
    Member