Zhang (Migration)

[2024] AATA 247

Zhang (Migration) [2024] AATA 247 (18 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Xuan Zhang

CASE NUMBER:  2312970

HOME AFFAIRS REFERENCE:               BCC2020/2909671

MEMBER:L Symons

DATE:18 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 18 January 2024 at 9:43am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – Visitor visas for more than 12 months – exceptional circumstances – applicant is a minor – impact of the COVID-19 travel restrictions – studies in Australia – mother’s period of unlawful residence – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.215

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 Immigration on 15 August 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).

2. The applicant applied for the visa on 31 December 2020. 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.600.215, which requires the applicant to satisfy the Minister that exceptional circumstances exist for the grant of the visa.

4. The delegate first refused to grant the visa on 10 January 2023 as a valid passport was not provided as required to satisfy a criterion for the grant of the visa. The Tribunal remitted the application for reconsideration on 17 July 2023 after the applicant provided the Tribunal with a copy of his valid Chinese passport.

5. The delegate again refused to grant the visa on 15 August 2023 on the basis that the applicant did not meet cl.600.215. This is because the delegate was not satisfied that exceptional circumstances exist for the grant of the visa. On 24 August 2023, the applicant applied to the Tribunal for a review of this decision.  

6. The applicant, who is a minor, appeared before the Tribunal on 16 January 2024. He was accompanied by Mr Ping Chung Lo who claimed to be his step-father. His mother, Fangfang Zhong, did not attend the hearing in person despite responding to the hearing invitation and indicating that she would attend the hearing in person to give evidence for and on behalf of the applicant as his mother and guardian.

7. The Tribunal contacted Ms Zhong by telephone. She stated that she did not attend the hearing because she was feeling unwell. The Tribunal explained to her that it does not usually seek evidence from an applicant who is a minor. She then requested and was allowed to participate in the hearing by telephone. She confirmed that she was giving evidence to the Tribunal for and on behalf of the applicant as his mother and guardian. The Tribunal did not hear evidence from the applicant. Mr Ping Chung Lo gave evidence at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. Prior to evidence being given, the Tribunal explained to the witnesses how to give evidence through an interpreter, the importance of stopping after each sentence so that the interpreter could interpret the evidence and waiting until the interpreter stopped interpreting before speaking again. When giving evidence, Ms Zhong disregarded these directions. She appeared to be agitated and spoke incessantly over the interpreter and the Tribunal. The Tribunal had to ask her on numerous occasions to stop speaking so that the interpreter could interpret her evidence.

9. At the end of the hearing, Ms Zhong appeared to become upset and stated that the responsibility of looking after her son and his education was too difficult for her. She was suffering emotionally and was depressed [details deleted]. The Tribunal stopped her from giving further evidence about this matter and informed her that it was not appropriate to have this discussion in the presence of her minor son. (This was also not relevant to the issues before the Tribunal). She complained this was unfair and she “wanted to continue her appeal”. She requested a copy of the recording of the hearing and was informed that it would be provided to her by the Registry upon receipt of a written request. The hearing was closed shortly thereafter.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

11. The issue in this case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that exceptional circumstances exist for the grant of the visa if the grant of the visa would result in the visa applicant being authorised to stay in Australia as the holder of one or more Visitor visas or subclass 417 (Working Holiday) visas or subclass 462 (Work and Holiday) visas or a Bridging visa for a total period of more than 12 consecutive months.

12. The applicant arrived in Australia on 14 August 2017 as the holder of a Subclass 600 Visitor visa that was valid until 18 November 2017. He departed Australia on 29 August 2017. He entered Australia for a second time on 8 August 2019 as the holder of a Subclass 600 Visitor visa that was valid until 16 April 2020. He departed Australia on 26 August 2019. He entered Australia for a third time on 16 January 2020 as the holder of a Subclass 600 Visitor visa. He applied for another Subclass 600 Visitor visa and was granted a Bridging visa on 12 April 2020. On 24 August 2020, he was granted another Subclass 600 Visitor visa which was valid until 9 January 2021. He has resided in Australia continuously since his arrival on 16 January 2020.

13. The applicant applied for this Subclass 600 Visitor visa on 31 December 2020 and requested a further stay until 15 April 2021. This would result in him staying in Australia for a total period of more than 12 consecutive months. In his visa application, he stated that the reason for the extension is that he could not return to China due to the Covid-19 pandemic.

14. In considering whether exceptional circumstances exist for the grant of the Visitor visa, the Tribunal has had regard to the policy guidelines in PAM GenGuide H – Visitor visas. It states that the principles of the Visitor Program are that visitors to Australia must genuinely intend only to visit Australia temporarily, not work unlawfully, not engage in studies or training for more than 3 months, have, or have access to, adequate means to support themselves during the period of the visit so that they do not need to access Australia’s social welfare system and leave Australia on or before the date their visa ceases unless they make a valid application to stay for a longer period to the benefit of Australia.

15. As the Act does not define exceptional circumstances, the Tribunal has considered the policy guidelines in PAM GenGuide H – Visitor visas in relation to exceptional circumstances which it states may include:

    ·the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support

    ·a change in the applicant’s circumstances (or the circumstances of an Australian resident) that:

    ◦       could not have been anticipated at the time their Visitor visa was granted and

    ◦       is beyond the visa applicant’s control and

    ◦       where not granting a visa would cause significant hardship to an Australian   resident or citizen.

16. In considering whether cl.600.215 is met, the Tribunal discussed exceptional circumstances for the grant of the Visitor visa with the applicant’s mother, Ms Zhong. She gave evidence that the Covid-19 pandemic prevented the applicant from returning to China. She re-married (in Australia) in November 2021. She and the applicant live with her current husband who is an Australian citizen. She cannot locate the applicant’s (biological) father. His step-father threats him like his own son. They have developed a close bond and he provides them with emotional support. It would impact on him if the applicant were not granted a Visitor visa.

17. The applicant’s step-father, Mr Ping Chung Lo, gave evidence that he is an Australian citizen. He met Ms Zhong over 3 years ago. After knowing her for 4 months, they got married on 3 November 2020. He first met the applicant after he had been in Australia for less than 2 months. Ms Zhong asked him for advice on how to send him back to China. At that time, the international borders were closed, had been closed since 28 March 2020, and he could not return to China. When asked to describe his relationship with the applicant, he stated that it is not only like a father and son but like a big brother and a little brother. He is his mentor. He teaches him English. He likes to learn from him.

18. The Tribunal asked Mr Ping Chung Lo what impact it would have on him if the applicant were not granted a Visitor visa. He responded that he does not want him to be illegal in Australia. He will have to organise for him to return to China. He then proceeded to talk about the mistakes that Ms Zhong had made. The Tribunal reminded him to focus on his relationship with the applicant. He responded that, if the applicant has to return to China, he may have to quit his job and settle him in China. He is a year from finishing High School. That is his whole life and he takes some responsibility for his future.

19. Clause 600.215 is a time of application criterion. The visa application was lodged on 31 December 2020. China’s international borders were closed on 28 March 2020 due to the Covid-19 pandemic[1] and remained closed at the time his Subclass 600 Visitor visa was granted on 24 August 2020. The applicant, or his mother on his behalf, could have anticipated at the time his Visitor visa was granted that China’s international borders would remain closed for a considerable period of time. The Tribunal accepts that the Covid-19 pandemic which led to the closure of international borders was a change in the applicant’s circumstances that were beyond his control.  

    [1] “One year after Wuhan lockdown, China keeps strict border controls to suppress Covid-19”, France 24, 23 January 2021, <>

    At the time of application on 31 December 2020, Mr Ping Chung Lo had known the applicant for a few months and had been married to his mother for less than 2 months. The Tribunal does not accept that they had developed a close bond and Mr Lo provided the applicant with emotional support during that short period of time. The Tribunal does not accept that it would have adversely impacted on Mr Lo, who is an Australian citizen, when the applicant was not granted the Visitor visa. The Tribunal is not satisfied that refusing to grant the applicant the Visitor visa caused Mr Lo significant hardship.

20. The Tribunal raised as an issue its concerns that there are no exceptional circumstances for the grant of a Visitor visa to the applicant. His mother responded that he has been attending school (in Australia) for the last 4 years. It is impossible for him to return to China to study and his life will be ruined. If she returns to China, it will impact on her husband and the applicant. If he returns to China, it will impact on everyone. The Tribunal does not find this response to be persuasive.

21. Having considered all the evidence, the Tribunal is not satisfied that exceptional circumstances exist for the grant of the Visitor visa. Therefore, the Tribunal finds that the applicant does not meet the requirements of cl.600.215.

22. The Tribunal has also considered whether cl 600.211 is met, which requires the Tribunal to be satisfied that the 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.

23. In considering whether an applicant genuinely intends to stay temporarily in Australia for the purpose of a visit, 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. The last substantive visa held by the applicant was a subclass 600 Visitor visa that was issued on 24 August 2020 and expired on 9 January 2021. This visa was subject to conditions 8101 and 8201. He was granted a Bridging visa on 31 December 2020. The Bridging visa is not subject to condition 8201.

24. The applicant’s mother gave evidence on behalf of the applicant that he has been studying in Australia for the last 3 years. The evidence indicates that he was the holder of a Bridging visa during this period. There is no evidence before the Tribunal to indicate that he has not substantially complied with the conditions of the last substantive visa held or his subsequent Bridging visa issued on 31 December 2020.

25. The Tribunal must also consider whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

26. In considering whether the applicant will comply with these conditions, the Tribunal is of the view that the applicant’s intentions and conduct will be determined by his mother as he is a minor and is dependent on her. His mother, Ms Zhong, gave evidence that her first husband lives in China, they are divorced and she has no contact with him. Since coming to Australia, she has made an application for a Partner visa and was sponsored by a man named Robert. That application was unsuccessful and she has made a request for Ministerial intervention which is still pending. She married Mr Ping Chung Lo in November 2021. (Mr Lo gave evidence that they got married on 3 November 2020).

27. The Tribunal noted that in the application for a Visitor visa filed on 31 December 2020 she stated that the Visitor visa was sought (on behalf of the applicant) because he could not return to China due to the Covid-19 pandemic. The Tribunal noted that it is now more than 3 years later, the borders have been opened for a considerable period of time[2] and asked her why the applicant now requires a Visitor visa. She responded that he attends school in Australia and has done so for 3 years. He wants a Student visa. When his Visitor visa was refused, he was unable to apply for a Student visa because he could only apply for a Student visa while his Visitor visa was still valid.

    [2] “China reopens borders in final farewell to zero-COVID”, Reuters, 9 January 2023, <

28. Ms Zhong gave evidence that she wants the applicant to be granted a Visitor visa for 1 or 2 months so that he can apply for a Student visa. He has studied in Australia for a long period of time and it will be difficult for him to return to studies in China. She wants him to study in Australia. He will be starting Year 10 this year. He has 2 more years in High School. She then wants him to attend University for 3 years. Once he completes University in Australia, he can decide whether he wants to remain in Australia or return to China. She provided the Tribunal with three Reports on the applicant from Henry Kendall High School for Semester 2, 2022, Semester 1, 2023 and Semester 2, 2023.

29. Ms Zhong stated that she is not in paid employment. She previously worked as a waitress at a restaurant. She owns no assets in Australia other than savings of $20,000.00. She does not have any debts. She owns a property in China from which she receives an income. She plans to sell that property. Mr Lo owns a house which he purchased for $500,000.00 and it is subject to a mortgage of approximately $300,000.00. He is employed as a chef and earns $800.00 to $900.00 nett per week. He has some savings but she did not know how much. She and the applicant live with him. She and Mr Lo will pay for the applicant’s living expenses and schooling expenses in Australia. The applicant is currently not in paid employment but once he turns 16 years she will ask him to get a job.

30. Ms Zhong stated that her mother, two younger sisters and two younger brothers live in China. Her older brother, sister-in-law, three maternal uncles and cousin live in Australia. Her older brother is an Australian permanent resident, lives in Woy Woy and owns two restaurants. He has given her some money to pay for the applicant’s school fees. When asked what incentives the applicant has to return to China, she responded that she does not see any necessity to return to China. If he goes back to China, no one can look after him. She, his step-father and uncle can look after him in Australia. When asked whether she and the applicant had made any plans to depart Australia, she responded no. Her husband is here and she does not want to leave him. Australia is her home because her husband is here.

31. The records of the Department indicate that between 2 January 2017 and 18 November 2017 Ms Zhong travelled to Australia on four occasions as the holder of Visitor visas. She then applied for a Partner visa on 15 February 2018 and the Department refused her visa application on 25 January 2019. She applied to the Tribunal for a review of that decision and on 9 June 2023 the Tribunal affirmed the decision made by the Department. She was granted a Bridging visa on 15 February 2018 and this visa ceased on 14 July 2023. Since then, she has been living in Australia unlawfully.

32. The Tribunal put this information to the applicant, through his mother and guardian, pursuant to s.359AA of the Act and noted that her immigration history in Australia may lead it to the conclusion that, as the applicant is under 18 years of age, he will follow whatever she did and that her intentions will become his intentions. The Tribunal noted that it is concerned that her intention is to live in Australia with her son permanently and that she is even prepared to live here unlawfully. The Tribunal noted that it is concerned that the applicant may also live here unlawfully if he is unsuccessful in getting a Visitor visa.

33. Ms Zhong responded that the applicant’s case is different from hers. He is a minor. She experienced domestic violence. She did not break the law. Her visa expired and she was not notified. There was a delay. Her visa was always valid. There was an error. She did not receive the notification in time. She will always “uphold a visa”. On the last occasion, she missed the notification. When she found out, she applied for Ministerial intervention. She did not receive notification.

1. Mr Ping Chung Lo gave evidence to the Tribunal that he was aware that Ms Zhong had been living in Australia unlawfully. When her last visa was cancelled he knew about it. When the two of them got married on 3 November 2020, she still had her (Partner) visa application pending. He wanted to sponsor her for another (Partner) visa, but she wanted to wait for the last case (to be finalised). The Tribunal put this information to the applicant, through his mother and guardian, pursuant to s.359AA of the Act and noted that this raised concerns that if the applicant was not granted a Visitor visa Mr Lo could not be relied upon to make sure that he complied with Australian laws.

2. Ms Zhong responded that she has always held a visa. She did not break the law. She had a Bridging visa and always “observed the visa”. Her previous case was quite complicated.

3. The Tribunal raised as an issue its concerns that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the Visitor visa is granted. The Tribunal noted that Ms Zhong’s own evidence leads it to the conclusion that she wants him to live in Australia permanently and this did not satisfy the requirements for the Visitor visa. She responded that she does not want the applicant to live in Australia permanently. He has gone to school in Australia for 3 years. Once he finishes school, he can make his own decisions. She wants him to complete his studies in Australia. If this process is discontinued, what can he do with his future life. He has been here for 4 years.

4. The Tribunal raised as an issue the fact that a Visitor visa is not granted for the purpose of studying in Australia. If Ms Zhong wanted the applicant to study here, she should have applied for a Student visa. The current problem was created by her (decisions). She responded that this was not the case. It was because of the Covid-19 pandemic. She wanted him to return to China but he could not do so due to the Covid-19 pandemic and she could not renew his visa. 

5. The Department was provided with supporting documents including a St George Bank statement dated 23 December 2020 in relation to an account in Ms Zhong’s name showing a balance of $18,414.63 as of 29 September 2020. No documentary evidence was provided to the Tribunal in relation to Ms Zhong’s current financial circumstances or Mr Lo’s financial circumstances.

6. Having considered all the evidence, the Tribunal is not satisfied that the applicant will comply with the conditions of a Subclass 600 Visitor visa. The Tribunal is not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted or that his mother and/or step-father will ensure that he does. Therefore, the Tribunal finds that the requirements of cl.600.215 are not met.

   DECISION

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

   L Symons
   Member

   
   

   ATTACHMENT

   600.215

   (1)  If subclause (2) applies—exceptional circumstances exist for the grant of the visa.

   (2)  This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:

   (a)  one or more visitor visas;

   (b)  a Subclass 417 - Working Holiday visa;

   (c)  a Subclass 462 - Work and Holiday (Temporary) visa;

   (d)  a bridging visa.

   600.211 

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  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; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)  any other relevant matter.