ZHANG (Migration)

[2021] AATA 5247

ZHANG (Migration) [2021] AATA 5247 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms KAIYUE ZHANG

VISA APPLICANT:  Mr YONG GUAN

CASE NUMBER:  2001760

HOME AFFAIRS REFERENCE(S):          BCC2019/6372547

MEMBER:Naomi Schmitz

DATE:22 October 2021

PLACE OF DECISION:  Melbourne

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 22 October 2021 at 3:47pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – no previous travel to Australia – intention to comply with visa conditions – all other relevant matters – purpose of visit – incentives to return to China – work commitment – substantial family network who reside in China – long-distance relationship with wife – 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 18 December 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 applied for the visa on 29 November 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 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.  

5. The review applicant appeared before the Tribunal on 27 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from China. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and Mandarin and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the fact that both the review applicant and visa applicant were offshore in China and only able to provide evidence ‘virtually’. 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 Microsoft Teams. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. After this matter was constituted to the Tribunal Member on 8 September 2021, the Tribunal wrote to the representative and requested updated information and records to be provided by 23 September 2021 including; a copy of the review applicant’s child’s birth certificate; a copy of the visa applicant’s passport ensuring that all  passport country stamps are visible; an itemised list of all countries the visa applicant has travelled to, if any, including the  arrival and departure dates; evidence of the visa applicant’s current employment, if any, including recent evidence of pay slips and taxation returns; evidence of ownership of property, for example a title deed or certificate of title and approximate value; if the visa applicant is currently leasing property, evidence of the duration of the lease; any updated information and records about the visa applicant’s assets and financial situation such as money in bank accounts; any other information relevant to the visa applicant’s activities or commitments  or relationships in his home; and the review applicant’s travel documents relating to her departure from Australia on 7 February 2020 such as a returned or one-way flight ticket and associated travel itinerary.

10. In response on 21 September 2021, the review applicant provided the following documentation; a business licence dated 31 May 2017; a household registration certificate; a certificate of title confirming property ownership; and a letter dated 22 September 2021 confirming the visa applicant’s employment. At the hearing the representative sought further time to obtain various bank statements due to be filed by 18 October 2021. On 18 October 2021 the representative provided two translated bank statements totalling $405,717.58 AUD, including one dated 2 October 2021 with a closing balance of 1,763,226.27 CYN equivalent to $366,375.81 AUD and the other dated 2 October 2021 with a closing balance of 189,496.27 CYN equivalent to $39,341.77 AUD.

11. 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.

12. The visa applicant is a 32-year-old citizen of China. In the present case, the visa applicant seeks the visa for the purposes of visiting his wife, the review applicant, who resides in South Australia. The review applicant is an Australian permanent resident. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

13. The visa applicant requested a visitor visa for up to three months with a planned arrival date of 5 January 2020 and a departure date of 28 February 2020. The original purpose of his visit was to be present with his wife for the birth of their child. Due to the visa refusal, the review applicant departed Australia prior to the birth of their child to be present with her husband, giving birth in China. The review applicant gave evidence that she has not returned to Australia since giving birth due to the COVID-19 pandemic.

14. 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)).

15. In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

16. 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.

17. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given he has applied for a visitor visa for the purposes of visiting his wife and the short duration of the stay. The Tribunal is also satisfied based on the financial evidence submitted, that the visa applicant has sufficient personal savings to support himself. The Tribunal also accepts that he will be accommodated by the review applicant.

18. The Tribunal is also satisfied that the visa applicant intends to comply with conditions 8503 and 8531 which are discussed below cl 600.211(c) in the context of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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

20. The visa applicant gave evidence that the purpose of his future visit was to visit his wife and  son aged one year and eight months, who the review applicant plans on taking back to Australia. The visa applicant’s son is a Chinese citizen. The visa applicant intends to stay in Australia for two to three weeks, but due to work commitments cannot stay long in Australia. This is a valid reason to apply for a visitor visa.

21. The Tribunal enquired as to what incentives the visa applicant had to return to China. The visa applicant stated he is the sole income earner for his wife and son and could not ‘throw my business away’. The visa applicant is the General Manager at Beijing Guanglian which distributes a high quality and expensive Chinese liquor (spirit) Maotai, with some bottles retailing for hundreds of thousands of dollars. His parents established the distribution business, which he stated he was not prepared to ‘give it up’. He also works with his uncle and cousin. The review applicant gave consistent evidence stating that her husband had taken over his family business and that she had not worked for some years.

22. The Tribunal Member asked whether the visa applicant could continue his employment remotely from Australia. The visa applicant stated ‘definitely not’, explaining only a small portion of the business could be conducted remotely, and it was not a viable long-term option due to logistical issues, his senior role and would have a significant negative financial impact on the business. He explained, it is also not the type of business that he could simply uplift and move to Australia and replicate the success he has achieved in China, due to the large customer base in China and high demand. At the time of hearing the visa applicant was onsite at one of his shops and showed the Tribunal Member various liquor products. The Tribunal accepts this evidence and from financial documents provided is satisfied that the visa applicant operates a very successful business, which is not easily transferrable and places significant weight on it as an incentive to return to China.

23. The Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside China. The visa applicant stated he has not undertaken any travel outside China due to his General Manage position at Beijing Guanglian International Trade. Consequently, there is no record against which any weight can be given as to whether the visa applicant has complied with conditions on previously held visas.

24. The visa applicant also gave evidence of all his family residing in China, including his father, mother, an uncle, an aunt and cousin and the review applicant’s parents, who all live in Beijing, save for his father who lives an hour by train in the Liaoning province. He explained as the ‘only child’, he needs to be close to his parents. He stated his father has suffered from ill health, namely a stroke and brain haemorrhage and has a carer. Both him and his mother visit him, whilst also operating the family business in Beijing. In contrast, the review applicant is the only family member who resides in Australia. The review applicant gave consistent evidence. The Tribunal accepts the visa applicant and review applicant’s evidence that there is a substantial family network who reside in China, in particular the visa applicant’s parents who rely on the visa applicant to continue their family business and provide care and support which the Tribunal places significant weight on as an incentive to return to Chine after his visit to Australia.

25. The Tribunal enquired as to what assets, if any, the visa applicant has. The visa applicant gave evidence of owning a 117.67sqm house in the Suijiatun district which he co-owns with his mother. In support he provided a certificate of title which the Tribunal accepts. They currently lease the property which will expire in 70 years. His parents also own two other properties. The Tribunal places some weight on all three properties as an incentive to return. The visa applicant also gave evidence of owning a Volkswagen motor vehicle. The Tribunal places limited weight on the motor vehicle as it could be easily transferred or sold. The visa applicant also has substantial saving namely $404,717.58 AUD. Given the large sum of money and restrictions on transferring funds, it could not easily be moved offshore and therefore the Tribunal places some weight on these savings as an incentive to return to China.

26. The Tribunal Member asked the visa applicant why he had not applied for a offshore spousal visa or why he would not apply for an onshore spousal visa when visiting Australia. The Tribunal Member put to him that it was highly probable given he is married to the review applicant and shares a child with her and that it would be difficult to leave them. The visa applicant stated because he wished for his wife and child to remain in China, with the remainder of their family, but that his wife wants to return to Australia. He stated ‘since we have gotten married, this is a topic that we continually discuss’. The Tribunal Member also put these questions to the review applicant who gave consistent evidence. She stated that due to her husband being her main source of income, running a successful family business, they proposed to maintain a long-distance relationship whereby the visa applicant would visit her in Australia and she would return to China to visit the visa applicant in China. She gave evidence of visiting him four times since 2018 which is corroborated by travel movement records obtained by the Tribunal.

27. It was apparent to the Tribunal Member that this was a subject of contention and an issue that has caused some marital disharmony. The visa applicant and review applicant also stated that the visa applicant did not wish to apply for a spousal visa despite being eligible, as he could not remain in Australia for two year due to his business, which would be required for the Partner Subclass 801 visa before transitioning to the Partner Subclass 820 visa.

28. The representative also made submissions, submitting that the visa applicant did not intend to maintain a permanent residence in Australia, as he would need to remain in Australia for at least two years, which was impossible due to his employment and business. She also submitted that he was eligible to apply for an offshore partner visa which would be cheaper and quicker,[1] than an onshore spousal visa. After sustained questioning by the Tribunal Member, the Tribunal accepts the visa applicant and review applicant’s evidence and the representatives submissions and is satisfied that this is the reason the visa applicant has not applied for a spousal visa and will not seek to apply when visiting Australia on his visitor visa.

    [1] and >

    The review applicant gave evidence that she would be prepared to lodge a security bond in the sum of $5000.00 AUD to $10,000.00 AUD to guarantee the visa applicant’s return to China.

29. The Tribunal explained that as a relevant factor pursuant to cl 600.211(c), that it needs to consider the situation of a visa applicant’s home country, China, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which discusses China’s political system and state censorship. China is a one-party communist state governed by the Chinese Communist Party (CCP). While minor parties exist, they must be approved by and are subordinate to the CCP. There are many heavy restrictions including freedom of expression, access to the internet and freedom of the press. Free speech is curtailed by the state. News coverage must conform to official views of the CCP and questioning the legitimacy of the CCP is not tolerated. The CCP heavily restrict, monitor and control online content and expressions of political dissent such as censoring WeChat and Weibo (Chinese social media platform), phone calls, text messages, emails and SMS messages. The government reportedly employs up two million people to police the internet and post pro-government comments and report negative ones. The Tribunal member contrasted China’s communist regime and state censorship with Australia’s liberal democracy, freedom of the press and separation of powers and asked in light of these differences, why this would this not be a disincentive to return to China.[2]

    [2] Department of Foreign Affairs and Trade Country Information Report – People’s Republic of China dated 3 October 2019

30. The visa applicant did not dispute the report information, but stated that he is ‘far away from those issues’ and an ‘obedient citizen’ and had not done anything to attract the attention of the CCP or law enforcement authorities. The review applicant gave consistent evidence stating that the political situation and state censorship did not affect the visa applicant’s life or business and therefore it did not serve as a disincentive to return. The Tribunal accepts that the visa applicant is not a political activist or dissident and that the political system and state censorship would not serve as a disincentive to return to China.

31. The visa applicant gave evidence that he did not have any well-founded fear of any form of persecution in China due to his race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is atheist and from the majority Han ethnic group which makes up 91% of the Chinese population.[3] The review applicant gave evidence of the same. The Tribunal accepts the visa applicant and review applicant’s evidence which is also supported by various national identity documents. The Tribunal notes that the review applicant did not obtain permanent residency through a protection visa. The review applicant also gave evidence of returning to China a total of five times since becoming an Australian permanent resident to see her parents and the visa applicant and has no security concerns. This is corroborated by travel movement obtained by the Tribunal.

    [3] Ibid

32. The Tribunal has considered all matters carefully. There are a number of factors in the visa applicant’s favour, including him having a valid reason to visit Australia. There is a substantial family network who reside in China, in particular his parents. The Tribunal places significant weight on the large family network in China. In contrast, the visa applicant has very limited family in Australia, namely his wife. Another major economic incentive to return is the visa applicant’s business which is extremely successful which the Tribunal places significant weight. The visa applicant also owns a property and stands to inherit is parent’s properties and enjoys a comfortable life in China which the Tribunal considers would all act as incentives to return. The Tribunal also place some weight on the visa applicant’s large savings but limited weight on ownership of his motor vehicle.

1. The Tribunal is satisfied that the political system and state censorship in China would not act as a disincentive to return and that the visa applicant does not have any fears of persecution. The Tribunal accepts that if a security bond was required of the review applicant, the visa applicant would be highly motivated to ensure that he returns to China before the expiry of his visa due to financial hardship in losing a security bond caused to his wife, as well as adverse implications for future visa applications to Australia. Finally, the visa applicant and review applicant presented as articulate, honest and credible witnesses. 

2. 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

3. 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.

   Naomi Schmitz
   Member