Xu (Migration)

[2018] AATA 4108

Xu (Migration) [2018] AATA 4108 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Yinzhuo Xu

VISA APPLICANT:  Mr Tongguo XU

CASE NUMBER:  1719643

DIBP REFERENCE(S):  BCC2017/2205328 PNJ

MEMBER:Linda Symons

DATE:24 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 August 2018 at 4:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine visitor – claimed current savings – employment history – financial capacity for three months’ visit – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359AA

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 Immigration on 17 July 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 to the Department of Home Affairs (the Department) for the visa on 22 June 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 because he was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 28 August 2017, the review applicant applied to the Tribunal for a review of that decision.     

5. The review applicant appeared before the Tribunal on 3 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 sister and her family. This is a purpose for which a visa in the Tourist stream may be granted.

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. There is no evidence before the Tribunal to indicate that the visa applicant has visited Australia previously.

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. 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.

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that she and her husband are not in paid employment and live with her son, his wife and their 9 months old child. She later stated that her daughter and her husband also live in the house. When asked what her source of income was, she responded that her son pays for her living expenses and she and her husband look after his child. She stated that she has savings of almost $30,000.00 and no debts. She stated that the visa applicant will live with her in her son’s house and he will pay for his airfare and living expenses in Australia. She stated that she lives in a five bedroom house.

13. The review applicant gave evidence that the visa applicant is employed as a Sales Manager at Shijiazhuang Rongda Feed Ltd Pty since 2012. She stated that prior to that he and his wife were farmers for a long time. She stated that he has not undertaken any other work in China. She stated that he owns a house in a rural area and savings of approximately 280,000.00 rmb. She stated that these savings were acquired over the years from his income. She stated that he has no debts. She stated that he will bring some spending money with him.  

14. In his visa application, the visa applicant stated that he is employed as a Manager at Shijiazhuang Rongda Feed Pty Ltd and has worked there since 2002. This is not consistent with his evidence to the Tribunal that he has worked as a Sales Manager at Rongda Feed Pty Ltd since 2012. He stated that prior to that he worked at a smaller feed company called Baole Xiang and prior to that he worked for another company called Liming. When asked when he worked at these companies, he responded that he could not recall and then stated that he started working in Liming in 2009 and started working at Baole Xiang prior to 2000. This is not consistent with his earlier evidence that he worked at Liming before he worked at Baole Xiang. He stated that he and his wife were chicken farmers before that but his wife is now solely responsible for the chickens.

15. These inconsistencies in the visa applicant’s evidence in relation to when he started working in his current job and the chronology of his employment and the inconsistencies between his evidence and the review applicant’s evidence in relation to his employment history raise concerns in relation to his employment and his financial capacity to support himself in Australia without breaching condition 8101. 

16. The visa applicant provided the Department with a number of documents to support his visa application. One of these documents was a copy of his Household Registration Card (Hukou). His Hukou was issued on 11 October 2006 and states that his occupation is Farmer. This is not consistent with his evidence to the Tribunal.

17. The records of the Department indicate that the delegate contacted the visa applicant’s place of employment by telephone and was informed that he was away on a business trip and the person who answered the telephone did not know where he had gone. The records indicate that she stated that he had worked in that company since 2012. It indicates that when she was asked to explain why the company had issued a letter indicating that he had worked there since 2002 she was unable to provide a satisfactory explanation. The Tribunal put this information and the evidence of the visa applicant that he has worked in his current job since 2012 to the review applicant, pursuant to s.359AA of the Act, and noted that it raised concerns in relation to the visa applicant’s employment and whether his intentions to only visit Australia are genuine.

18. The review applicant responded that it has always been the case that the visa applicant started working in his current job in 2012. She stated that there must have been an error in the visa application. When asked who prepared the visa application, she responded that her migration agent did. Her response offers no explanation for why there was also an error in the letter from his employer.

19. The Tribunal put information to the review applicant, pursuant to s.359AA of the Act, in relation to the visa applicant’s evidence to the Tribunal that he worked in two other companies prior to his current employment having started work with the first company prior to 2000, the second company in 2009 and his current employer in 2012. The Tribunal informed her that the Hukou he provided the Department was issued on 11 October 2006 and indicates that his occupation is Farmer, noted that this was not consistent with his evidence to the Tribunal and raised concerns in relation to his employment and whether his expressed intention to only visit Australia is genuine. She responded that he started working in 2012, the previous jobs he mentioned were in businesses that closed down, he did not work in those businesses for long and he mainly worked at the farming factory. The Tribunal does not find this response to be persuasive.

20. The visa applicant gave evidence to the Tribunal that he currently receives a wage of 120,000.00 rmb per annum. When asked what assets he owned, he stated that he had savings of 280,000.00 rmb which he has saved over the years from his wages. He stated that he will pay for his airfare and living expenses in Australia. He stated that he plans to bring 190,000.00 rmb with him to Australia. He stated that he has no debts. He has provided to the Department a Personal Certificate of Deposit from the Agricultural Bank of China which indicates that the Certificate is valid from 7 June 2017 to 7 September 2017. It indicates that the sum of 280,000.00 rmb was deposited in a fixed term account in the visa applicant’s name.

21. The Tribunal put information to the review applicant, pursuant to s.359AA of the Act, in relation to the visa applicant’s evidence to the Tribunal that he had savings of 280,000.000 rmb which he saved over the years from his wages, noted that the Personal Certificate of Deposit shows a lump sum deposit, does not indicate where the money came from and shows that it was deposited shortly before he applied for the Visitor visa. The Tribunal noted that it has concerns that this may not be the visa applicant’s money and that his expressed intentions to only visit Australia may not be genuine. She responded that she can assure the Tribunal that the money is his that he has saved from his employment. The Tribunal noted that, if he had saved this money over the years, he would have bank statements that could verify this. She responded that he may not have saved all his money in one bank account and may have just consolidated it into one bank account.

22. Following the hearing, the review applicant’s migration sought and was granted further time to provide additional evidence. The Tribunal has been provided with a document dated 2 June 2017 from the Rural Commercial (Cooperatives) Bank. It refers to an account in the name of ‘Tongguo’ but does not refer to the visa applicant’s surname ‘Xu’. It refers to a cash withdrawal of 20,000rmb on 2 June 2017 leaving a balance of 18.78 rmb. The Tribunal has been provided with a document dated 9 June 2016 from the Postal Savings Bank of China in relation to a bank account in the visa applicant’s name. It indicates that he had a balance in his account of 30,000 rmb as at 9 June 2016. The Tribunal has been provided with a document dated 3 June 2017 and titled ‘Business Voucher’ from the Rural Commercial (Cooperatives) Bank. It refers to an account in the visa applicant’s wife’s name and is in relation to a deposit of 30,000.00rmb for a term of three months from 20 March 2017.

23. The evidence provided to the Tribunal in relation to the visa applicant’s bank statements are out of date and do not address the issue raised with the review applicant. The Tribunal is not satisfied, on the evidence before it, that the visa applicant currently has savings of 280,000.00 rmb which he was saved over the years.

24. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that the visa applicant wants to come to Australia to visit her and her family. She stated that she would like him to come to Australia for three months. When asked how he is able to get so much time off from his work, she responded that she thinks he is able to get leave from his employment as he has been a long term employee.  When asked what he is planning to do in Australia for that length of time, she responded that she does not know. She stated that “maybe he could rest and spend time with the family”. She asked whether he could work here and then stated that she did not know.

25. The Tribunal asked the review applicant whether the visa applicant wants to work in Australia. She responded that she does not know whether he is allowed to work and if he is not allowed to do so, then “maybe no”. When asked whether he has a plan to work in Australia, she responded no and stated that he will “just sit around and travel a bit”. She stated that they have a car and will show him around. When asked whether the visa applicant is planning to study or do any training in Australia, she responded that if he wants to study that will be good as he can learn some English here. She stated that even if it is only on Sundays, if he has no time, then he can study on Sundays. This evidence raises a number of concerns for the Tribunal.

26. The visa applicant gave evidence that he would like to come to Australia to visit the review applicant and her family. When asked for how long he would like to come to Australia, he responded “not long”. He then stated that he would like to come to Australia for three months. When asked how he was able to get so much time off work, he responded that he works as a Sales Manager and has a lot of old customers. He stated that he can hand over the business aspects to a colleague to look after in his absence. When asked what he is planning to do for three months in Australia, he responded “see around”.

27. The Tribunal asked the review applicant and the visa applicant what incentives the visa applicant has to return to China before the end of his permitted stay in Australia. The review applicant responded that he will definitely go back to China. She stated that they will be sponsoring him and he will not do anything to affect them. The visa applicant has not applied for a Sponsored Family visa. When asked why she did not sponsor him for a Sponsored Family visa, she responded when his Visitor expires he will return to China. The visa applicant responded that his incentive to return to China is his job. He stated that he cannot leave work for too long. He stated that he can assign work to his colleagues and cannot leave his job. He then stated that another incentive to return to China is his wife as he needs to go back to look after her business. The Tribunal does not find this evidence given by the review applicant and the visa applicant to be convincing.

28. The Tribunal raised as an issue with the review applicant its concerns that the visa applicant may work in Australia in breach of condition 8101. She responded that that will not happen. When the Tribunal raised as an issue with her its concerns in relation to whether his expressed intentions to only visit Australia are genuine, she responded that his purpose in coming to Australia is to visit them and travel a bit.

29. The review applicant’s migration agent made oral submissions during the hearing. She submitted that she has previously prepared visa applications for various members of the review applicant’s family. She stated that the review applicant will only invite someone who will return to China. She stated that if they do not have a job and money she would not invite them. She stated that if the people the review applicant invites do not return to China it will affect her permanent residence and stop other relatives from coming to Australia. She stated that this is the only visa application that has been refused. He stated that all family members are aware that if they come to Australia they must comply with the visa conditions. She stated that this is why the review applicant has sought a review of this decision. She stated that the visa applicant worked for a small company at the time the Hukou was issued. She stated that he worked at the company when they needed him and otherwise worked on the farm.

30. Following the hearing, the Tribunal was provided with copies of the visa applicant’s payslips from Shijiazhuang Rongda Feed Pty Ltd and two letters from this company. The first letter indicates that there was an error in the previous letter issued by them and that the visa applicant started working there in 2012 and not 2002 as previously indicated. The second letter states that the visa applicant has been working at that company since 1 July 2012 and sets out his annual income for 2014, 2015 and 2016.

31. Following the hearing, the Tribunal received an undated written submission from the review applicant’s migration agent in which she states that she has assisted four other family members of the review applicant to obtain Australian visas. She stated that the review applicant’s parents in law, Heiping Hao and Lanzhen Du, were granted Visitor visas on 2 November 2017 and 29 December 2017, her son in law, Yang Rui, was granted a Partner visa on 29 March 2016 and her daughter in law, Bingbing Zhou, was granted a Partner visa on 26 March 2018. She stated that her parents in law have returned to China. She submitted that there are seven reasons to guarantee that the visa applicant will return to China. She stated that the review applicant has lived in Australia for eleven years and has visited China on four occasions for a month each time. She stated that the visa applicant has not met the review applicant’s daughter in law and grandson, Daniel, who was born in Australia. She stated that there was a celebration for the birth of Daniel but the visa applicant was unable to be here for the celebration.

32. The review applicant’s migration agent submitted that the visa applicant has a good job in China to which he will return. She stated that his wife, two daughters and granddaughter live in China and he will return to take care of them. She stated that he has a house in China and savings of 280,000.00 rmb which is enough for his financial needs in Australia.

33. The Tribunal has been provided with a number of letters from the Department of Home Affairs to the review applicant’s relatives confirming the grant of visas to them. This includes a Partner visa issued to Bingbing Zhou on 26 March 2018, a Partner visa issued to Yang Ryui on 29 March 2016, Visitor visas issued to Heiping Hao on 2 November 2017 and 29 December 2017 and Visitor visas issued to Lanzhen Du on 2 November 2017 and 29 December 2017. The Tribunal accepts that these people have been granted these visas. The Tribunal is not persuaded that this has any bearing on whether the visa applicant will comply with the conditions of his Visitor visa, if granted.

34. The Tribunal has also been provided with copies of a Birth Certificate for Daniel Hao born on 25 July 2017, a Marriage Certificate for Rui Yang and Hao Zhimin together with a Notarial Certificate, a Household Register for Hao Zhuangwu together with a Notarial Certificate, Permanent Residence Registration Cards for Hao Zhuangwu, Xu Yinzhuo and Hao Zhimin together with a Notarial Certificate, a Notarial Certificate in relation to Hao Zhitao and the bio data pages of Chinese passports issued to Yinzhuo Xu and Zhuangwu Hao.  

1. Having considered all the evidence, the Tribunal accepts that the presence of family members in China is an incentive for the visa applicant to return to China. However, this does not, of itself, guarantee that he will comply with the conditions of the visa. The Tribunal is not satisfied, on the evidence before it, that he currently has 280,000.00 rmb in savings in China which he has saved over the years from his income. The Tribunal is not satisfied that he has the financial capacity to support himself in Australia for three months without working. The Tribunal is not satisfied that the review applicant has the capacity to financially support the visa applicant for three months.

2. The Tribunal does not place much weight on the visa applicant’s employment in China being an incentive for him to return to China as he would be able to earn a considerably larger income in Australia. The Tribunal is of the view that the length of stay requested by the visa applicant is not consistent with his expressed intentions in his visa application. The review applicant’s evidence in relation to what the visa applicant will do in Australia for three months raises further concerns for the Tribunal that his expressed intentions are not genuine. 

3. 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

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

   Linda Symons
   Member