YU (Migration)

[2020] AATA 5707

YU (Migration) [2020] AATA 5707 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Yanyan YU

VISA APPLICANT:  Mr Naihong YU

CASE NUMBER:  1900461

HOME AFFAIRS REFERENCE:               BCC2018/5640573

MEMBER:L. Symons

DATE:21 October 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 October 2020 at 1:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist Stream – not a genuine temporary entrant – inconsistent evidence – review applicant’s visa condition breaches – 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 21 December 2018 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 14 December 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 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 she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 8 January 2019, the review applicant applied to the Tribunal for a review of that decision.

5. The review applicant appeared before the Tribunal on 21 October 2020 to give evidence and present arguments. 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 who did not attend the hearing.

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 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 family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).

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

12. 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.600.611(3):

    ·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.

13. 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 is employed as a casual cleaner and earns approximately $30,000.00 per annum. Her husband is employed as a gyprocker and earns approximately $30,000.00 per annum. They own their own home, two investment properties and two cars. They have savings of between $7,000.00 and $8,000.00. They have no debts. She will pay for the visa applicant’s airfare and expenses in Australia.      

14. The review applicant gave evidence that the visa applicant is her father. He is not in paid employment and has not worked since October 2018. He is a shareholder in a seafood import and export company. He is paid a sum of money each month and receives 5% of the profits of the company at the end of each year. He worked in that company for more than 2 years. He has never had any financial problems. Her mother is not in paid employment. She does home duties and helps to look after her grandchildren.

15. The review applicant gave evidence that the visa applicant owns a loft apartment in Longtian town. He has savings but she is unaware of how much. He has no debts. He will bring $5,000.00 with him. He is not planning on working, studying or undertaking any training in Australia. His family needs him in China and he needs to return to China after his visit.

16. The records of the Department of Home Affairs indicate that the review applicant was interviewed by a Departmental officer on 9 January 2011. During that interview, she told the officer that she was unable to complete her studies in Australia because her family had financial problems. The Tribunal put this information to her, pursuant to s.359AA of the Act, and noted that this was not consistent with her evidence to the Tribunal (that the visa applicant never had any financial problems) and it raised concerns that the visa applicant may have financial problems, has not worked for 2 years and may want to come to Australia to work here.

17. The review applicant responded that, in the past, the visa applicant did have some financial issues but her family is back on track now. She stated that in view of his age it would be a risk to sponsor him. His intention is to come here for a family reunion and for sightseeing. Her evidence that the visa applicant did have some financial issues previously is not consistent with her earlier evidence that he never had any financial problems and raises concerns in relation to her credibility. When the Tribunal raised this as an issue, she responded that maybe she misunderstood the question or thought the question was about the present or maybe her use of the work ‘never’ was too extreme. The Tribunal finds her explanation to be unconvincing and does not accept it.

18. The Tribunal also does not accept the review applicant’s evidence that, in view of his age, it would be a risk to sponsor the visa applicant. Firstly, she has not sponsored the visa applicant for this visa. Secondly, the evidence before the Tribunal is that the visa applicant was born on 27 July 1966 and he is therefore 54 years old. The Tribunal does not accept that he is too old to work at the age of 54 years.

19. The review applicant’s evidence to the Tribunal is also not consistent with the documentary evidence provided by the visa applicant to the Department of Home Affairs. He provided a letter dated 31 October 2018 which indicated that the visa applicant had been a resident of Honduras since 30 June 2016, was employed by the company He Zheng International as an Operations Manager since 1 December 2016 and was paid a monthly salary. This letter was translated from Spanish to English on 9 December 2018.

20. In the visa application, which is dated 14 December 2018, the visa applicant stated that he was employed as a manager at He Zheng International and had been since 1 December 2016. This is not consistent with the review applicant’s evidence that he has not worked since October 2018. In the visa application, the visa applicant stated that his residential address was in Longtian town, Fuqing city, Fujian Province in China. This is not consistent with the letter referred to in paragraph 19 above which states that he had been a resident of Honduras since 30 June 2016. 

21. The Tribunal had requested to speak to the visa applicant during the hearing. At the hearing, the review applicant provided the Tribunal with his telephone number and indicated that he was expecting the Tribunal’s telephone call. Attempts were made to contact him during the hearing but there was no response. The Tribunal was therefore unable to discuss with him the inconsistencies in his written evidence to the Department. These inconsistencies in his written evidence raise concerns in relation to the accuracy of the information he provided the Department, the authenticity of the letter referred to in paragraph 19 above and the credibility of his expressed intention to only visit Australia temporarily to visit his family.

22. 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. In the visa application, the visa applicant indicated that he wished to visit Australia for approximately 4 weeks to visit family. The review applicant gave evidence that he wished to visit for 2 to 3 weeks for the purpose of a family reunion and to do some sightseeing. She stated that her younger sister has had a baby and the visa applicant has not seen her baby. He has also not visited Australia previously.

23. The Tribunal asked the review applicant when she last saw the visa applicant. She responded that it was a long time ago. When asked when she last travelled overseas, she responded that she forgot to mention that she travelled to China in January 2020 and saw him then.

24. The records of the Department of Home Affairs indicate that the review applicant came to Australia on 11 August 2007 on a subclass 571 Student visa. Her Student visa expired on 15 March 2010 and she thereafter remained in Australia as an unlawful non-citizen until 21 May 2010 when she was granted a Bridging visa. Her Bridging visa expired on 31 December 2010 and she again remained in Australia as an unlawful non-citizen for a second time. She was granted a Bridging visa on 9 January 2011 on the basis that she was going to depart Australia on 10 January 2011. She did not depart Australia and again remained here as an unlawful non-citizen for a third time.

25. The records of the Department of Home Affairs indicate that the review applicant subsequently applied for a permanent visa, was granted an associated Bridging visa on 25 October 2011 and a series of Bridging visas thereafter. Her application for the permanent visa was refused. She subsequently applied for and was granted a subclass 801 Partner visa on 3 December 2013. The Tribunal put this information to her, pursuant to s.359AA of the Act, and noted that her immigration history indicates that she is a person who has no respect for Australia’s immigration laws. The Tribunal noted that this may lead it to the conclusion that she cannot be relied on to ensure that the visa applicant complies with the conditions of his visa.

26. The review applicant responded that she admits her immigration history. She stated that she wanted to stay in Australia and looked at a series of alternate ways to stay in Australia permanently. The visa applicant is different. He just wants to come here and see his family. The Tribunal does not find this reassurance to be convincing.

27. The Tribunal raised as an issue with the review applicant its concerns in relation to her credibility as a witness. She responded that she is sorry for the past and she does not have an “honest immigration history”. She requested that the Tribunal give her “another chance”.

28. The Tribunal raised as an issue with the review applicant its concerns in relation to whether the visa applicant’s expressed intention to stay temporarily in Australia for the purpose for which the visa is granted is genuine. She responded that the Tribunal should trust her. She stated that the visa applicant will not overstay.

29. Having considered all the evidence, the Tribunal accepts that the review applicant will pay for the visa applicant’s airfare to Australia and will provide him with accommodation. The Tribunal accepts that the visa applicant wants to come to Australia to visit his two daughters and his two grandchildren. However, the Tribunal is not satisfied that this is his only purpose in coming to Australia.

30. The Tribunal accepts that the presence of some of the visa applicant’s family members in China, his wife and mother in particular, is an incentive for the visa applicant to return to China but is not satisfied that it outweighs his incentives to remain in Australia after the end of his permitted stay. The Tribunal is not satisfied that the visa applicant will comply with conditions 8101 and 8531 if granted a Visitor visa. 

31. 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

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

    L. Symons
    Member