YE (Migration)

[2020] AATA 6043

YE (Migration) [2020] AATA 6043 (21 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hong YE

VISA APPLICANT:  Mr LINJIANG ZHANG

CASE NUMBER:  1819695

HOME AFFAIRS REFERENCE(S):          BCC2018/1316687

MEMBER:Tania Flood

DATE:21 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 December 2020 at 6:07pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant plans to visit wife and daughters – previous partner visa refusal – financial commitments in China – unpaid monies for a construction project – apparent intention to settle in Australia permanently – decision under review affirmed           

LEGISLATION

Migration Act 1958 (Cth), ss 65, 424AA
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 Home Affairs on 18 June 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 19 March 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 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 visa was refused on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that he genuinely intends to visit Australia temporarily.  

5. The review applicant appeared before the Tribunal on 18 December 2020 by MS Teams audio to present arguments in support of her husband’s application for a Visitor visa.  The Tribunal also received oral evidence from the visa applicant offshore. The hearing was held during the COVID-19 pandemic and the Tribunal determined it was reasonable to hold the hearing by teleconference 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 teleconference.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal is satisfied the applicants were given a fair opportunity to give evidence and present arguments. 

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

   BACKGROUND

7. According to information provided in the application for a Visitor visa, the visa applicant is a fifty-three-year-old citizen of China. He resides in Jinhua city in Zhejiang Province, China. His wife and three daughters reside in Australia. He wishes to travel to Australia for up to three months to visit his family members. He has been the CEO of a company called Yilin Woodcaking Ltd in China for the past seventeen years.

8. The review applicant is the wife of the visa applicant.

9. In an email to the Tribunal dated 15 November 2020, the review applicant stated that she married the visa applicant in Sydney in 2014. They had applied for a Partner visa (subclass 820). However, the application was refused because the visa applicant had to return to his business in China. She stated that she hopes a fair decision can be made to ‘reunite [her] family’.

   Tribunal decision

10. The review and visa applicants’ evidence to the Tribunal is summarised as follows:

11. The review applicant came to Australia as a student in 1990 and was granted a [permanent visa].  She has one sister here and her parents also subsequently migrated to Australia.  Her mother passed away three years ago.

12. The review applicant lives in rental accommodation with her father and three daughters who were all born in Australia to different fathers.  She does not work as her own father has dementia and requires constant care.  Her two eldest daughters work and her third daughter is still studying.

13. The review applicant met her husband, the visa applicant, in China in 2014 and they married that same year in Australia.

14. The visa applicant stated that her husband currently lives in Jin Hua city with his mother.  According to the review applicant he has a small construction business but she does not know the name of the business.  She said that previously he was in the furniture business.

15. The review applicant previously sponsored a Partner visa application for her husband but as he had to return to China for business reasons the visa was not granted. 

16. The review applicant said that her husband was owed money for a construction project by the government and needed to return to China at that time in order to ensure he received the payment.  She said he still hasn’t been paid back the money.  She said that her husband also owed money to his suppliers but he was able to repay that with help from his mother and brother. She said that currently her husband has no income.

17. When asked if her husband’s efforts to reclaim the money owed to him by the Government was causing him problems in China she said that it is troublesome and caused him to have a stroke.  She said that is why he has returned to live with his mother.

18. The review applicant stated she is intending to lodge another Partner visa application offshore if her husband manages to get back the money which is owed to him.  She said that if that occurs she will go back to China to make the application.

19. The review applicant stated that her husband would like to visit Australia for two to three weeks.  She said he cannot stay any longer as he needs to go back to China to resolve the financial matter. 

20. When asked if she has contemplated returning to live in China with her husband in the meantime the review applicant stated that she could not do so as all her family are in Australia.  She said that her husband will return to China because the government still owes him money, his mother is in her 80’s and needs his care and his daughter will soon sit the University entrance examinations.

21. When the Tribunal pointed out that it appears her husband has an intention to settle in Australia permanently in light of the previous Partner visa application the review applicant stated that while that was the original intention his mother is getting older now and his daughter is growing up.  She said that her own father is sick and she cannot go to China.  She said she does not know what they should do in the circumstances.

22. The review applicant confirmed that he met the review applicant in China but said they were married in 2015.

23. The review applicant said that he has forgotten how many times he has visited Australia but thinks it was two or three times before.  As to why he did not use the Visitor visa which was granted to him in 2017 he said that at the time his business was working on a government construction project and he was owed money for that and therefore could not leave China.  

24. The Tribunal put it to the visa applicant that correspondence he provided to the Department indicates that he could not leave China because he himself had unpaid debts to suppliers.  He agreed but said that he has since been paid back RMB 3 million and with that he has paid back wages and his suppliers.  He said he is still owed his original investment and profit which amounts to about RMB4 million.   

25. The visa applicant stated that he and his business partners have engaged a lawyer to assist them with their negotiations with the government.  He said that currently it is winter in the area where the project was undertaken and so they are waiting for next spring to pursue the debt.  When asked if the process of securing the money which is owed to them has been problematic he said it has not.  He said he is confident the remaining money will be paid out.

26. The visa applicant said that he would like to visit his wife and her daughters for two weeks.  As to any longer term plans they have he said that he hopes his wife will return to live with him in China when she is older.  He said however that he has not discussed this with her.   He said that previously he applied for a Partner visa but now his future depends on his mother’s health.

27. When asked if he has any medical conditions the visa applicant referred only to a military service injury which gets worse during the winter. 

28. When asked if he has a current source of income the visa applicant referred to his furniture business which he continues to operate.  He said that he has had a shop in Ningxia Province for 8 years.

29. Before the hearing concluded the Tribunal discussed with the review applicant various inconsistencies between her and her husband’s oral evidence pursuant to the requirements at s.424AA of the Act.  Specifically the Tribunal pointed out that she and her husbands account of when they married differed by a year; whereas she said her husband paid off his suppliers with financial assistance from his family members her husband said he received a part payment from the government which enabled him to repay his debts; whereas she said that her husband has no income currently her husband said he maintains his furniture business; whereas the written submissions indicate her husband was the CEO of a furniture business for 17 years her husband said he has had a furniture shop for 8 years; whereas she said her husband suffered a stroke as a result of the problems he has had with the government over unpaid monies her husband said his only health ailment is related to an old military service injury; whereas she said she cannot return to live in China her husband said that he hopes she will return there to spend her last years with him in China.

30. In her oral response to the above, the review applicant said that her husband doesn’t even know her date of birth let alone the exact date of their marriage.  She said he has not told anybody about the stroke because he doesn’t want people in China to know about it.  She said there are medical reports available which prove he suffered a stroke.  She said that her husband had a furniture shop with other partners in Shanghai for 17 years.  She said that in 2012 he transferred to another city and opened another furniture shop himself.  She said she is not entirely clear what has transpired in respect of the money owed to her husband.  She said she meant to say that her husband’s mother and brother covered the costs incurred due to his illness.  She then said that he paid back his suppliers using some money recovered from the government and some from relatives.  She said their differing evidence about their long -term intentions can be put down to the fact that they haven’t seen each other in years and therefore have not had the opportunity to sit down and discuss their situation at length. She said it is possible that her husband has had a change of thinking in respect of how they should manage their marriage in the future.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. 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.

32. In the present case, the visa applicant seeks the visa for the purposes of visiting his wife.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

33. 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)).

34. The visa applicant visited Australia on three previous occasions between August 2014 and August 2016 as the holder of Visitor visas (FA 600). On all occasions, he departed before the expiry of his visas. On 12 December 2017, he was granted a Visitor visa (FA 600) (Sponsored Family stream), sponsored by the review applicant, but did not travel to Australia.

35. The visa applicant has previously applied for a Combined Partner visa (UK 820/BS 801), sponsored by the review applicant. The visa was refused on 29 May 2018. The applicants lodged a review to the Tribunal. The Tribunal found that it had no jurisdiction to review the decision on 4 July 2018.

36. The review applicant first arrived in Australia in 1990 and acquired Australian citizenship on 30 September 1998.

37. 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.

38. The Tribunal considered the review applicant’s responses to the inconsistencies between her and her husband’s oral evidence and accepts that poor memory and the passage of time could account for some of the differences between their evidence.  Namely the minor inconsistency in respect of the year of their marriage and their plans for the future. Further, the Tribunal is prepared to accept that an omission of detailed information about the history of the review applicant’s furniture businesses could account for the differing evidence in respect of the length of his involvement in that industry.  However, the Tribunal considers this does not account for the fact the review applicant stated her husband had no income at all whereas he claimed to still be operating a furniture business, albeit not the one which spanned a period of 17 years.   Also, on the question of the repayment of the review applicant’s debts to his suppliers the Tribunal found the evidence of the review applicant very unpersuasive.  As can be seen, in an attempt to rectify the anomaly, she changed her earlier evidence and said that the debts were repaid using a combination of money recovered from the government and borrowings from relatives.  However, at no point in her earlier evidence did she say that her husband had managed to recover any of the debt owed to him by the government.   While the Tribunal is prepared to accept, based on the review applicant’s insistence that medical reports are available to substantiate her claims, that the visa applicant may have suffered a stroke as claimed by the review applicant.  However, as discussed with the review applicant during the hearing the fact remains that the visa applicant was prepared to misinform the Tribunal about his current health status.  The Tribunal considers this reflects poorly on his credibility.

39. In addition, the application form for a Visitor visa indicated that the visa applicant was intending to visit Australia for a period of up to three months from 10 May 2018 to 15 August 2018.  However, during the hearing the review and visa applicants stated that he only wants to visit Australia for two to three weeks as his mother is now older and requires his care.  While it may be the case that the visa applicant’s mother is elderly there is no verifiable information before the Tribunal in respect of her health.  Also, the Tribunal finds it curious that after a long separation of husband and wife, that such a short visit is now proposed particularly in light of the review applicant’s submissions in respect of her desire for them to reunited.  Similarly, the Tribunal notes that the evidence of the visa applicant in his correspondence to the department expresses his sorrow that his business affairs have  interfered with his ability to re-join his wife in Australia and his remorse for not being present to support her particularly during the difficult time following her mother’s death.  In light of the circumstances the Tribunal is not persuaded by the reasons given for such a short visit and considers it likely the review and visa applicants have introduced this change of plans in order to persuade the Tribunal that a temporary visit is all that is planned. 

40. The Tribunal is also concerned that the visa applicant appears to be involved in a protracted dispute with the Chinese government over unpaid monies in connection with a construction project.  While the review applicant acknowledged there had been a delay in payment he claimed to not otherwise have been troubled by the situation but the Tribunal does not find this likely.  The Tribunal considers the circumstances surrounding the visa applicant’s dispute over payment with the Chinese government could induce him to remain in Australia after a permitted stay.

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

42. Based on the available evidence and having carefully considered the oral evidence of the review and visa applicants, the Tribunal has serious doubts about the genuineness of the visa applicant’s intentions in respect of his proposed visit to Australia. 

43. The Tribunal is not satisfied that the visa applicant genuinely intends to visit Australia temporarily for the purpose for which the visa is granted. Therefore, the Tribunal finds that the requirements of cl. 600.211 are not met.

    DECISION

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

    Tania Flood
    Member