Yang (Migration) - [2025] ARTA 604

YANG (MIGRATION) [2025] ARTA 604 (23 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Dongqiu Yang
Visa Applicant:Mr Chaoyi Wan
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number:2309180

Tribunal:General Member C Cody
Place:Sydney
Date: 23 February 2025
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Statement made on 23 February 2025 at 8:40am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – combined hearing of separate applications by husband and wife, visiting wife’s brother – child remaining at boarding school – property, savings and leave from employment – no previous travel – review applicant’s evasive evidence about migration history – previous student visa cancelled before partner visa granted – applicants’ work history and similar letters from employers – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231(b)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review[1] of a decision made by a delegate of the Minister for Home Affairs on 1 June 2023 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
[1]The applicant had lodged his application for review with the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The visa applicant applied for the visa on 22 May 2023. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the in the Sponsored Family stream. The visa applicant applied with his wife, whose application was also refused.
The visa applicant was represented by a registered migration agent Yichuan Tian. The applicant to the Tribunal, who is the brother-in-law of the visa applicant, was represented in relation to the review by the same representative. The applicant also lodged an application for review in relation to the refusal of the visa applicant’s wife’s application (2309178), and the cases were heard jointly.
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, 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 him 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.
Evidence before the Department[2]
[2] The evidence before the delegate is contained in the file of the Department of Home Affairs (the Department).
The visa application and sponsorship forms and supporting documents state that:
·     The visa applicant is Mr Chaoyi Wan, a Chinese citizen aged 38 years. He is married to Ms Dongxue Yang (who is referred to as the visa applicant’s wife/ the applicant’s sister). Her brother is Dongqiu Yang, the applicant.
·     The visa applicant plans to go to Australia with his wife to visit the applicant, his brother-in-law, and to travel. He plans to visit for up to 3 months (specific dates provided were from 22 June 2023 to 5 July 2023).
·     He and his wife have an 8-year-old son who they propose to leave behind in China. They live in Shenyang.
·     The visa applicant has been working for a construction company since 6 March 2019.
·     This is his first application for a visa to Australia. He has never travelled overseas before. His passport was issued in August 2016.
·     The applicant is a Chinese citizen who is a permanent resident of Australia[3]. He is the manager of a construction company.
·     All of the costs of the proposed visit will be funded by the applicant.
[3] Department letter dated 22 March 2022 confirming visa status: Resident return (subclass 155), was provided.
Evidence of their relationship has been provided: a kinship certificate showing the applicant and the visa applicant’s wife are siblings, and the marriage certificate for the visa applicant and his wife, and the oral evidence.
Additional documents provided include:
·     The applicant’s invitation letter confirmed that he is inviting his sister and brother-in-law and that they will stay for 2 weeks, they will return to China at the completion of their visit and they will not engage in any employment during their stay.
·     The visa applicant’s home ownership certificate, household register, marriage certificate, work documents (untranslated) and his identity card.
·     The applicant’s passport and tax document for 2022, and documents relating to his business including ASIC Record of Business name dated May 2021, and business documents for 2022.
The delegate’s refusal
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 visa applicant genuinely intends to visit Australia temporarily for the purpose for which the visa would be granted, for the reasons set out below:
The applicant has not provided any evidence of previous travel outside of their home country that may demonstrate previous compliance with immigration laws in countries outside of their own. This does not necessarily indicate that the applicant will not comply with any conditions if they were to be granted a subclass 600 visa, however previous visa compliance provides a key risk indicator that can be used to determine whether a subclass 600 visa applicant genuinely intends to stay temporarily in Australia. As no evidence of travel history exists, I have been unable to give this factor positive weight.
I note the applicant has declared their relationship status as married yet they have only declared their minor child as a family member who will remain in their home country during the applicant’s proposed visit to Australia. While I acknowledge that this family member may offer some inducement for the applicant to return to their home country and have given this some weight, I find it concerning that the applicant is willing to leave their minor child for a period of up to three months during their visit to Australia for (purpose of visit) purposes.
The applicant has declared they have been employed since 06 March 2019 as a Technician and Trades Worker at Shenyang FuRao Construction Com Ltd in Liaoning Sheng China. The applicant has provided a letter from their employer with their current role. As this document has not been translated into English I am unable to confirm if the applicant has been authorised by their employer to take leave in order for the applicant to undertake their proposed travel to Australia. I have given the applicant’s claimed employment as an incentive to return limited weight.
In making this decision, I have carefully considered the representations from the sponsor Dongqiu YANG. While such support is important for assisting a decision maker to assess the merits of each case, it is not, in itself, sufficient evidence that a genuine temporary stay is intended. The onus remains with the applicant to demonstrate their intention to undertake a genuine temporary stay. While I have considered the support from the sponsor Dongqiu YANG the applicant has not provided evidence of sufficient personal, business, employment and cultural ties to China to demonstrate that they intend a genuine temporary stay in Australia.
After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.
There are no non-disclosure certificates on the Department file.
The Tribunal
The applicant provided an application for review and a copy of the notification and the delegate’s decision record.
The Tribunal asked whether the applicant would agree to a combined hearing and this was agreed to. The applicant was invited to attend a hearing. The applicant then sought a postponement which was granted. A new hearing date was agreed of 13 February 2025. The Tribunal advised that it may wish to take evidence from the visa applicant and his wife. The applicant provided a Response to Hearing Notice, noting that he and his sister would be available for the hearing but the visa applicant would not attend.
On 11 February 2025, the representative provided the following: The translated version of the work certificate and letter of leave of [the applicant’s sister] and [the visa applicant]. The [applicant’s sister] also provided the latest certificate of deposit.
Attached to the email were four letters in Mandarin and four translations. The translations were two work certificates and two letters of leave (one each for the visa applicant and his wife, from their respective companies).
· The translated letters for the visa applicant showed that he has been working as a plumber in the company since 6 March 2019, he is responsible at work and abides by the rules, his salary was provided and it was acknowledged that he intends to take leave for three weeks.
· The translated letters for the wife showed that she had been working in sales for the company since 1 March 2020, she is responsible at work and abides by the rules, her salary was provided and it was acknowledged that she intends to take leave to visit her brother in Australia for three weeks.
Also attached were 2 bank statements in the name of the visa applicant’s wife.
The applicant appeared before the Tribunal on 13 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. The representative was present. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal indicated that it intended to consider the evidence in relation to both this application and 2309178, and there was no objection.
The applicant’s evidence
Some of the applicant’s evidence is set out below:
·     The applicant said he has been in Australia for 13 years. He is married and has 2 children. He was able to remain on the basis of his marriage[4]. When asked for his wife’s name and date of birth he said Yan Feng Yang, and that her date of birth is [Date 1]. When the Tribunal asked how she came to Australia he said he doesn’t know. He said that her whole family migrated here, after she completed primary school. The Tribunal put to him that it was difficult to understand why he never asked his wife the basis for her arrival and stay in Australia. Departmental movement records could not be found for the given name and date of birth. This was put to the applicant, and after the break he provided a new date of birth for his wife: [Date 2]. He said he got mixed up. Departmental movement records show that she arrived in October 2006 aged 14 years. The Tribunal accepts that he made a mistake with his wife’s date of birth.
·     The applicant said that he travelled to China in 2018 and saw her there, but he has not seen her since then. Because of his busy work schedule he thinks he won’t be able to go back to China in the next 1-2 years.
·     He would like his sister and the visa applicant to see his 2 children; he has a new child who is 1 year old.
·     The Tribunal asked the applicant whether his parents have come to visit him. He said that he is in contact with them but they have not come to see him and the children. The Tribunal asked why and he said that he previously submitted a visa application in 2018-2019 for them yet he never got a decision from the Department. The Tribunal asked whether he had ever followed up with the Department and he said he doesn’t have this idea to chase it up at the current point. The Tribunal asked the representative if he knew anything about this and he said he had called the Department and was informed that it was in progress but there was nothing further to date.
·     Neither he nor his wife have had any visitors. He has no other siblings.
·     He said that his sister and the visa applicant have been married for 8 years [the marriage certificate stated they had been married for about 10 years; the Tribunal accepts that the applicant may not have known the exact length of the marriage].
·     His sister works in a real estate agency as a salesperson. She has her own property, no mortgage; the property is in her name, she lives there with her husband. The child goes to school at a boarding school; about 20 minutes by car. The child comes back on weekends.
·     His sister has savings of about 400,000 RMB; he is not sure how much savings the visa applicant has.
The applicant’s sister’s evidence
[4] Departmental movement records confirm that on 21 October 2016 he was granted UK 820 and BS801 visas.
The sister gave evidence by telephone. Some of her evidence is as follows:
·     She said that she wants to visit her younger brother in Australia. She would like to come with her husband. Her brother is married with 2 children. She last saw him in about 2017/2018. Her brother works in gyprocking/ renovation industry.
·     She works in a real estate company, she started work in 2020, she looks after sale and rental of properties. Her husband started work as a plumber in about March 2019.
·     She gave evidence about her savings. She said that she has 3 bank accounts with savings totalling about 470,000RMB; all the savings are in her name (the property is in her husband’s name) [while the representative’s prehearing email provided only 2 bank statements in the sister’s name, the Tribunal is prepared to accept for the purpose of these proceedings that the applicant’s sister has the savings stated].
·     She and her husband have incentives to return (their work and their child, who attends boarding school during the week but comes home on weekends). The child is being left behind because of his schooling.
·     When asked to explain why she and her husband will not want to stay, she said there are 4 reasons: although they don’t work for government they are at the top of their industry, she can’t leave her child for a long time, she is used to the life in China and she has a busy life.
The Tribunal put information to the applicant pursuant to s359A Migration Act and he provided his comments at the hearing.
At the end of the hearing the Tribunal said that it has not made up its mind and it will weigh up all the evidence, but that it does have concerns with the evidence and it may not find the documents to be reliable.
The representative submitted that the delegate had refused the case and had referred to the visa applicant and his wife wanting to come for 3 months but that they had not wanted to come for so long; the Tribunal said that it accepted that the period applied for was “up to 3 months” and that the visa applicant (and his wife) had specified a proposed visit period of a few weeks. The Tribunal does not consider this proposed period to be unreasonable.
The representative also submitted that they have strong personal ties including their jobs and their child and their parents; the applicant has a job and he pays taxes and contributes to Australian society and he will give full financial support.
The Tribunal has taken into account the evidence and information and the submissions received.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether cl 600.211 is met. In the present case, the visa applicant seeks the visa for the purpose of visiting his Australian permanent resident brother-in-law and to undertake tourist activities. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231 (b).
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).
The applicant confirmed that his brother-in-law has never previously come to Australia. The Tribunal finds that this subclause is not relevant.
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.
The applicant told the Tribunal that his brother-in-law will comply with these conditions. The Tribunal is not satisfied, when considering all the circumstances, that this is the case. It is not satisfied, for the matters discussed below, that the applicant’s assertions about the intentions of the visa applicant, namely that he only intends a genuine visit, are reliable.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The Tribunal considered the consistent oral evidence of the applicant (supported by that of the visa applicant’s wife) which was consistent with the written evidence: that the visa applicant and his wife have family members, property, savings, and activities they undertake in China and thus they have an incentive to return home; there will be sufficient funds to support a visit; they just want to see the applicant and his family and will then return to China.
However, the Tribunal does not place positive weight on the evidence and assertions made by the applicant or the visa applicant (or his wife) when assessing whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and when assessing whether he will comply with the conditions that he would not seek another substantive visa or would seek to stay longer than permitted in Australia, or would not seek to work or study. This is because the Tribunal has concerns with the credibility of the case presented by the applicant which is not overcome by any of the documentary evidence nor the assertions. The Tribunal notes as follows:
Evasive evidence about the applicant’s immigration history
The Tribunal had before it the Migration Review Tribunal (MRT) decision 1412484 dated 2 October 2014 in which the MRT affirmed the delegate’s decision to cancel the applicant’s student visa because the applicant had not been enrolled in a registered course since 13 May 2013 and thus had not complied with condition 8202(2) of his student visa. The Departmental movement records show that he was subsequently granted a partner visa. However, the Tribunal was concerned that the applicant was not forthcoming when giving his evidence to the Tribunal about his student visa having been cancelled. In this regard it asked him about his immigration history and he said he was a student. However, when the Tribunal asked what happened with his student visa, he only said that he “transferred” it to a spouse visa. When the Tribunal asked him again what happened with his student visa, he again did not respond: he said that his girlfriend got pregnant so they got married. The Tribunal noted that it was important that he be truthful when giving his evidence, and that he was not answering the question about what happened to his student visa, and he was given another opportunity, but again he did not respond. He said he didn’t complete his study and so he got his tuition refunded and he made another application for a partner visa.

The Tribunal was concerned that the applicant was evasive about his migration history; and while it accepts that his tuition was refunded[5], he did not tell the Tribunal that his student visa had been cancelled by the Department for failure to comply with a condition; and he had lodged an application for review to the MRT against the cancellation of his student visa, but that he had been unsuccessful. The Tribunal put this information to the applicant pursuant to s359A of the Migration Act, noting that he had been informed that his credibility would be considered, he had been asked on multiple occasions what had happened to his student visa and he had not acknowledged the cancellation of his student visa. The Tribunal put to the applicant that this may indicate that he is prepared to mislead the Tribunal about his migration history and it may not place weight on his assertions about the intentions of his brother-in-law in coming to Australia.
[5] Source: decision record 1412484.
The applicant commented that he withdrew from the enrolment and he didn’t know it was cancelled and the later procedures were dealt with by a migration agency and he heard that his visa was cancelled and not been aware of this until 2-3 months later. The Tribunal notes that this comment indicates that, by the time he was giving evidence to this Tribunal, he was aware that his student visa had been cancelled, yet he remained evasive about it. The Tribunal considers that this indicates that he is prepared to be untruthful when giving evidence seeking a visa outcome for his brother-in-law.
Financial matters and documents relied upon by the applicant
The Tribunal also had concerns with the evidence about the work of the visa applicant and his wife, and how much weight could be placed on the documents, noting that the applicant gave inconsistent evidence with the documents he had produced, as discussed in the paragraphs below.
Firstly, although the applicant was seeking to sponsor his brother-in-law who had been married to his sister for 10 years, and he made assertions in his letter of support that his brother-in-law would not seek employment in Australia, the applicant showed a lack of knowledge about his brother-in-law’s employment. In this regard, the applicant (whose documents show that he works in construction) told the Tribunal that he did not know what work his brother-in-law does, nor what kind of company he has been working for. Given the documents suggest that the visa applicant has been working as a plumber in a construction company for almost 6 years, since 2019, the Tribunal put to the applicant that it was difficult to accept that he did not know this. The applicant responded that he had not asked about this and he doesn’t have that frequent contact with his brother-in-law, he has more frequent contact with his sister. The Tribunal is not persuaded by this explanation, noting that the applicant warranted that his brother-in-law would not seek work in Australia, and noting that they claim to be working in the same industry, and that his brother-in-law has been working in the same job and industry for almost 6 years. The Tribunal considers that this undermines his credibility.
There was a further concern in this regard, when taking account of the visa applicant’s wife’s evidence. She told the Tribunal (consistent with the documents) that she has been working in her job since 2020 and her husband has been working in his job since 2019. The Tribunal asked her whether she had told the applicant that her husband works in construction as a plumber, and she said she thinks she didn’t tell her brother this. The Tribunal considered this difficult to accept and put this to the applicant as a concern pursuant to s359A of the Migration Act. It put to him that her response did not seem credible, especially given that her brother was sponsoring her husband to come to Australia. The applicant’s comment in response was that while she is his sister, he has been in Australia for 7 years and their conversations are not always about their workplace or income, they talk more about their parents in China and those kinds of things. While the Tribunal is prepared to accept that the applicant talks about family matters with his sister, it is not prepared to accept that, if his brother-in-law was a plumber working in the construction industry, the sister had not informed her brother of this at any time in the 6 year period that her husband had been working in this role. The Tribunal considers that this undermines the credibility of the sister as a witness and the work documents relied upon.
An additional concern arose because, as was also put to the applicant pursuant to s359A of the Migration Act, his evidence undermined his sister’s evidence (and the content of the documents) as to when the visa applicant and his wife had started their current jobs. In this regard, the applicant told the Tribunal that prior to their current jobs, his sister and his brother-in-law had been working together in a supermarket until 2-3 years ago. Thereafter, first his sister obtained her current job, and later his brother-in-law obtained his current job.
The visa applicant’s wife and the documents, however, recorded that the visa applicant started working in his current job almost 6 years ago (in 2019), and his wife started working in her job some 5 years ago, which was one year after the visa applicant started working (and not before). The applicant’s comment in response was that he didn’t know precisely when they closed the supermarket and when they started their new jobs, they didn’t talk about it in particular.
While the Tribunal is prepared to accept that he may have got the years wrong, it remains concerned with his inconsistent evidence as to who started work first after their joint enterprise closed, given the documents indicate that his sister spent a whole year not working after her husband got a job, and given the applicant’s evidence that he maintains contact with his sister and they talk about their lives.
Secondly, the Tribunal put to the applicant that there were similarities between the letters he had produced to the Tribunal for both the brother-in-law and his sister, despite them both working in different companies. In this regard the Tribunal noted that the wording of the Work Certificate documents was almost identical:
This is to certify that [name, ID number] has been working as a [role] in our company since [date]. [She/he] is responsible at work and also abides by National law and regulations of our company.
Contact: [name provided]
Mobile: [number provided]
Business address: [address provided].
· The Tribunal also noted that the translated Letters of Leave produced by both companies were also in a very similar format. The Tribunal put to the applicant that it has concerns as to whether the letters are reliable and asked if he wanted to say anything about this and he said no.
· The representative later submitted that it may be that a type of template is used in some companies; the Tribunal accepts that this is a possibility, however the Tribunal also notes that the applicant did not seek to comment when the Tribunal raised concerns about the reliability of the documents.
The Tribunal has considered the evidence of the applicant that, although he had provided documents to the Tribunal through his representative, when he was asked about these documents, he initially said that he didn’t know about these. He later asked if they were about work (indicating that he was somewhat aware of the documents). The representative later said that he had obtained the documents directly from the visa applicants. The Tribunal finds it difficult to accept that the applicant would have been unaware of the documents being submitted to the Tribunal on his behalf, and it is not persuaded that he didn’t know about the documents.
The Tribunal also noted that the representative had suggested that the Tribunal could try to contact the companies if there were concerns with the employment, which the Tribunal did attempt, but was unable to get through. The representative did not seek extra time after the hearing to provide any further clarifications as to the employment of the visa applicant and his wife.
In all the circumstances the Tribunal does not place weight on the work documents provided.
While the Tribunal has been prepared to give the applicant the benefit of the doubt in a number of respects; including that is also prepared to accept that he was mistaken when he told the Tribunal that his sister owns the property that she and the visa applicant and child reside in (whereas the document provided to the Tribunal 2 days earlier showed that the visa applicant was the owner of the property), it remained concerns with aspects of the evidence provided. The Tribunal is not satisfied that the visa applicant and his wife have the employment they claim to have in China.
In summary
The Tribunal accepts that the visa applicant has incentives to return from a visit to Australia, including his child in school and family members, and financial assets. However, this does not overcome the credibility concerns arising from the above evidence, including that the Tribunal is not satisfied that the visa applicant and his wife have the employment they claim, and that the applicant was prepared to mislead the Tribunal when asked about his immigration history.
The Tribunal is not prepared to accept the assertions about the visa applicant’s intention. The Tribunal is not satisfied that he would comply with conditions referred to above and nor is it satisfied that the visa applicant intends a genuine temporary visit.
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
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Date(s) of hearing: 13 February 2025
Representative for the Applicant: Mr Yichuan Tian (MARN: 1170541)