Yang (Migration)

[2021] AATA 3867

Yang (Migration) [2021] AATA 3867 (1 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xinyu Yang

VISA APPLICANT:  Mr Xiaoming Yang

CASE NUMBER:  1924546

HOME AFFAIRS REFERENCE(S):          BCC2019/3885346

MEMBER:Luke Hardy

DATE:1 October 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 01 October 2021 at 11:33am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 699 (Visitor) – sponsored family stream – genuine temporary entrant – purpose to visit young son in Australia with mother, now remarried – other family members, work and own apartment in home country – previous visitor visa application refused – previous compliant travel to another country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 23 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, Mr Yang, who is a citizen and resident of China, applied for the visa on 6 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 Mr Yang 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 Mr Yang did not meet cl 600.211 because the delegate was not satisfied that he intended to stay only temporarily in Australia.

5. The review applicant is Mr Yang’s son, Xinyu, who is a minor. His mother, Ms Zheng, is Mr Yang’s remarried former wife. She appeared before the Tribunal by telephone on 3 September 2021 to give evidence and present arguments on behalf of the review applicant. The Tribunal also received oral evidence by telephone from Mr Yang in China.

6. The hearing was held during the current lockdown caused by the outbreak of the Delta variant of the pandemic COVID-19 virus. I exercised the discretion to hold the hearing by telephone, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of both applicants. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to avoiding indefinite delay to the matter were the hearing of Ms Zheng’s evidence not to be conducted by telephone.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting his young son who attends primary school in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

11. 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)).

12. Mr Yang has never previously visited Australia. He took a short holiday in Mongolia and returned to China after ten days in 2011. There is no evidence in this matter of Mr Yang having failed to comply with conditions of a previously held visa, and if so, whether there was substantial compliance.

13. 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.

14. Prior to the hearing, the applicants submitted evidence of Mr Yang’s property and savings in China to argue that he would be able to support himself during a visit to Australia.

15. At the Tribunal hearing, Mr Yang said he resides in a two-bedroom apartment that he owns. He said he does not own any additional properties in China. He said he has worked 12 years with an electrical company as a manager responsible for sales, after-sales, installation and de-bugging. He argued that his life in China has been stable. He claimed no religion or other characteristics that might be potentially controversial in China.

16. Mr Yang said he last saw his son two or three years ago, before the Covid-19 pandemic, during a visit the son made to China with his mother. He said the purpose of his visit would be to help maintain bonds with his son, such as by seeing his school and picking him up to take him home in the afternoons during his time here. He said that this would give his son a sense of belonging that other children have. Ms Zheng voiced a similar view, saying that her son’s relationship with his new stepfather in Australia is good, but no substitute for the relationship he should have with his biological father.

17. Mr Yang said he would only have time for a two-week visit as he only gets fifteen days leave a year at the moment. He nevertheless indicated a preference for a multiple entry visa so that, if he is able to take more leave in the near future, he will not have to go through having to apply afresh for another visa.

18. Mr Yang said he was aware that an earlier visitor visa application had been refused. He said he applied in August 2019 and that after the application was rejected his son lodged a review application that affirmed the primary decision in September 2019. He said he understood that the reason for the refusals might have been a lack of evidence to indicate that he had sufficient incentive to return to China. The Tribunal notes that the present review application provides more evidence linking Mr Yang to a secure and stable economic life in China, including evidence of home ownership there.

19. Mr Yang said he has not entered into any new relationship since his divorce from Ms Zheng. He said he has a father and siblings all living and working in China.

20. For her part, Ms Zheng came to Australia as a visitor in January 2015, returned to China in May 2015. She re-entered Australia in August 2015 and married her current husband in September 2015. She had been divorced in China in May 2015. She was successfully sponsored as a partner and now has permanent residency in Australia. She evidently has no history of non-compliance with previously-held visas.

21. Ms Zheng said that the purpose of her ex-husband’s visit would be to spend time with their son and see where and how he lives. The Tribunal questioned why the intended visit was to take place during school term instead of during school holidays when father and son can spend more time together. In reply, Ms Zheng said children only study for six hours a day and have free time at night as well as Saturdays and Sundays off. She said that her son likes to be like other children who have their father pick them up from school and drop them off there. Asked who picks up her son currently, Ms Zheng said that normally she does, except that because of lockdown protocols, her son attends online classes at home.

22. The Tribunal has considered all this evidence and all other relevant matters (cl 600.211(c)).

23. The Tribunal gives more weight than the delegate did in this matter to Mr Yang’s evidence of stability and ties in China. This has weighed into the Tribunal’s satisfaction that Mr Yang has sufficient incentive to return to China at the end of his intended visit. The Tribunal has considered whether the intention to become involved in such day-to-day activities as picking-up the review applicant from school indicate an intention to extend stay beyond the short period of two weeks indicated in this application. Having reviewed the evidence, the Tribunal is satisfied that Mr Yang genuinely intends a temporary visit.

24. 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

25. 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.

    Luke Hardy
    Member