YU (MIGRATION) - [2024] ARTA 123

YU (MIGRATION) [2024] ARTA 123 (13 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Xueyan Yu
Visa Applicant:  Ms Xueyuan Yu
Respondent:  Minister for Home Affairs
Tribunal Number:  2316887

Tribunal:General Member R Da Costa
Place:Sydney
Date: 13 November 2024
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 13 November 2024 at 11:46am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit Australian family member – visa applicant is well-settled in China – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 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 Act).
The visa applicant applied for the visa on 23 August 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 Sponsored Family stream.
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.
The delegate refused to grant the visa on the basis that the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The applicant, who is the visa applicant’s sister, applied to the Administrative Appeals Tribunal (AAT) on 20 October 2023 for a review of the delegate’s decision.
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 (Cth) (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 applicant appeared before the Tribunal on 1 November 2024 to give evidence and present arguments. The Tribunal did not consider it necessary to speak to the visa applicant who is in China and who, according to the applicant, speaks a local dialect and only a little Mandarin, which may have made interpretation difficult. The Tribunal hearing was conducted using the Microsoft Teams videoconference platform and with the assistance of an interpreter in the Mandarin and English languages. The Tribunal found the applicant to be a credible witness.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CLAIMS AND EVIDENCE
Background
In her Visitor visa application form, the visa applicant provides the following relevant information. She is a citizen of China. She would like to come to Australia for a family visit and to do some sightseeing with her younger sister who is her sponsor and an Australian citizen.
She is married and has not previously travelled to Australia. She lives in Shantou city, Guangdong province. In China, she has her husband, her mother and three children. She would like to visit for up to three months. She will not study in Australia and she understands she is not permitted to work. She has enough money in savings to pay for her air ticket and her sister will meet all her accommodation and living expenses in Australia.
Documents before the Tribunal
The Tribunal has the Department and Tribunal files before it, which relevantly include the delegate’s decision and a range of documents provided by the visa applicant and applicant in support of the visa application as follows:
·     Chinese identity documents of the visa applicant;
·     Statement of deposit from China Minsheng Bank dated 11 August 2023 showing the visa applicant has RMB150,000 in funds;
·     Letter of invitation dated 16 August 2023 from the applicant;
·     Letter of support from the visa applicant’s husband;
·     Applicant’s tax return for the financial year ending 30 June 2022 showing her taxable income is $104,481.00;
·     National Australia Bank account statement of the applicant showing regular debits and credits to her account and a closing balance on 27 June 2023 of around $143,000;
·     Letter from the applicant to the Tribunal dated 20 October 2023 offering to lodge a security bond to support the application;
·     Email dated 10 October 2024 from the applicant in response to a letter from the Tribunal dated 27 September 2024, seeking additional information about the visa applicant and applicant and their circumstances.
The Tribunal has no concerns about the genuineness of these documents. Where relevant, these documents are referred to in more detail below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present 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.
In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.221 and cl 600.222.
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)). There is no evidence that the visa applicant has previously held a visa for Australia or visited Australia and so there is no evidence of non-compliance.
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.
The applicant has provided evidence to the Tribunal about her financial situation in Australia. She and her husband run a business in Sydney called The Scrap Yard which is a metal recycling business. They have been doing this for about 15 years and the business is profitable. The applicant has provided evidence, as referred to above, about her savings and taxable income. She and her husband own their five-bedroom house, which is mortgage free, and a car. They have three children, only one of whom still lives at home. The applicant gave evidence that her sister, the visa applicant, lives in the countryside with her husband and two of her three children. Her husband is a farmer and on their land, which is owned by him, they grow fruit and vegetables and raise animals. The visa applicant is a housewife who takes care of her family. She also often goes to visit her elderly mother who lives in a different village. The applicant gave evidence that she will meet all the expenses of her sister’s visit, including the airfare, accommodation and living expenses. The applicant’s sister will stay with the applicant in her home. The applicant confirmed that her sister will not work in Australia because she is not allowed to, she has no relevant skills and it would be totally wrong. The applicant wants her sister to come and relax on her visit and not to work. There is no evidence to suggest the visa applicant intends to study or undertake training in Australia and she has confirmed in her Visitor visa application form that she will not do this.
The Tribunal has also considered all other relevant matters (cl 600.211(c)). As part of this, the Tribunal has considered the purpose and proposed length of the visit and the personal circumstances of the visa applicant. In the Tribunal hearing, the applicant explained that her sister has never visited her in Australia before. Only her mother has visited but that was in 2006. The applicant explained that when she came to Australia, life was hard being here with three small children, running a business and no family support. Because of this, she sent her youngest son back to China when he was less than one year old and the visa applicant looked after him, and now they are very close. This proposed visit is part of the applicant wanting to thank her sister for helping her during that difficult time. The applicant gave evidence that her sister will stay for about two months, but if she doesn’t like it in Australia she might want to leave earlier. During the trip, the applicant wants to take her sister to do some sightseeing in Australia and she also wants her sister to relax and to spend some time with the applicant’s sons at home because they are very keen to see their aunt. The applicant and her sister communicate regularly via WeChat and the applicant and her family last saw the visa applicant when they visited China last year.
The applicant gave evidence that the visa applicant’s husband and children are old enough to look after themselves while she is away. Only one of the children is still at school and the others are doing tertiary study and working and don’t live at home full-time. The applicant explained that her sister has lived her whole life in the countryside and the family has always done farming. Her sister is not highly educated and does not have much experience in the world. She speaks her local dialect and does not speak fluent Mandarin. The applicant gave evidence that her sister is Buddhist and has never had any problems with the authorities in China. She is in good health. The applicant gave evidence that for her sister, her family is her first priority and all her life and social activities are within her local community in China, so she must return. Further, she is a very traditional woman with no skills who only speaks her local dialect fluently and she would struggle in Australia if she were to stay here.
In his letter of support, the visa applicant’s husband explains that he and his wife are farmers who have enough land to have a comfortable living. He has been in charge of running their business as farmers and his wife has been in charge of the house. They have three children who are studying and working and who are successful. He states that when the applicant was at university they helped her and now she has a happy life in Sydney, so she has invited the visa applicant to come and visit. The visa applicant’s husband says he needs to stay in China to look after the farm and so he is happy for his wife to visit Australia and he will look after the house and family while she is away. They have never been separated before and he is sure his wife will not overstay her visa and she will return to China.
The applicant guarantees her sister will obey the conditions of her visa and offered to lodge a security bond of $50,000 or more to support the visa application.
The Tribunal has considered all the evidence before it and finds that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The Tribunal finds that based on all the evidence, the visa applicant is well-settled in China and has strong incentives to return there at the end of her visit. These incentives include her strong commitment to her husband, children, siblings and mother, her commitment to looking after her household, her social ties and her familiarity with her local environment there. Based on the evidence, the Tribunal finds that with the applicant’s lack of formal education and her limited experience outside her home area of China, the incentives for her to remain in Australia are weak. The Tribunal also considers that the applicant would not support her sister remaining indefinitely or permanently in Australia. The Tribunal acknowledges the applicant’s wish to thank her sister for her help in the past and wants to support her to visit Australia and to see the life the applicant and her family have established here.
Based on the information before it, the Tribunal is satisfied that the visa applicant intends to visit the applicant and her other family members in Australia and she will not remain in Australia after the end of her permitted stay. The Tribunal is satisfied that she will comply with the visa conditions.
Conclusion
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
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.
Date(s) of hearing: 1 November 2024
Representative for the Applicant: not applicable