Zhang (Migration)

[2019] AATA 5680

Zhang (Migration) [2019] AATA 5680 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Cheng Zhang

VISA APPLICANT:  Ms Sijia Yang

CASE NUMBER:  1817123

HOME AFFAIRS REFERENCE(S):          BCC2018/2126903

MEMBER:Ian Garnham

DATE:10 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2019 at 3:39pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – travel history – intention to comply with visa conditions – incentives to return to home country – employment and life in China – psychological assessment – motives of the applicants – previous visa cancellation – threats made against review applicant’s ex-wife – decision under review affirmed

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 Immigration on 5 June 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 (who is the de facto partner of the review applicant, who is an Australian citizen since 07/04/2011) applied for the visa on 16 May 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 Departmental (Department of Home Affairs (DOHA)) delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because they were not satisfied that the visa applicant had; …demonstrated …sufficiently strong financial, family employment or other commitments in China that would be incentive for [the visa applicant] to return to China.  The delegate also commented that the visa applicant had not dispelled concerns relating to the issues that led to the cancellation of a previous tourist visa and a subsequent refusal of a previous visa application.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing.  The tribunal also received evidence by conference telephone from the visa applicant, Mr Deli Yang (the visa applicant’s father), and Vivi, a friend of the applicants gave oral evidence in person.

6. A submission (the submission) and documents supporting the application, dated 16 August 2019[1] were provided to the tribunal.

   [1] At F: 73 (AAT)

7. After the hearing a Psychological Assessment dated 30 August 2019[2] for the visa applicant was provided to the tribunal.

   [2] At FF: 141 &142 (AAT)

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the application the visa applicant claimed they sought the visa for the purposes of a family visit.  They also included the applicant’s child (born 21/03/2017) as a travelling companion.

11. At the hearing the review applicant said that the visa applicant now wants to come to Australia at this stage to visit him alone and that she will seek to come to Australia with their son at a later stage.  He also said that the visa applicant has not done all her preparation to come and live here permanently.

12. Whereas the visa applicant said that she wants their son to visit his father temporarily at this stage.  She wants him to visit his father only at this stage, but that she is not committed to living permanently in Australia at this stage.  She said she has a good life in China and just wants them to have contact as a family at this stage.

13. Whereas the visa applicant’s father said that the child is not going to come to Australia and that just the visa applicant will continue to come to Australia for travel at this stage. 

14. Regardless of whether the parties’ son is intended to accompany the visa applicant to travel to Australia; these are purposes for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    cl.600.211(a):

15. 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.

16. In this case the visa applicant has previously come to Australia as a tourist.  She entered Australia on a subclass 600 tourist visa on 22/08/2016.  The visa ceased to have effect on 22/11/2016 and the visa applicant departed Australia on 12/09/2016. 

17. On 06/02/2017 DOHA received an allegation that the visa applicant had made serious threats against an Australian citizen.  After investigation by DOHA her visa was cancelled on 10/02/2017 pursuant to section 116(1)(e)(ii) of the Act.

18. I have also noted that in the psychological assessment, the visa applicant has stated that she also came to South Australia when she was 17yo to complete her secondary education before returning to China to go to University.  I note this claimed travel to Australia is not recorded in the visa applicant’s Movement Details.

19. In the submission it is claimed that the review applicant’s mother(2003), father(2003) and his ex-wife(2014) have previously made compliant trips to Australia.  No further information (eg: dates of birth and purposes of travel) about this travel was provided.  Nevertheless the tribunal accepts that the claimed travel by these persons represents compliant travel by family members of the review applicant.

20. Therefore I acknowledge the previous compliant travel by the visa applicant and other family members as set out above.

    cl.600.211(b):

21. The Tribunal must also consider whether the visa 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 (cl.600.611(2)):

    ·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.

22. At the hearing the review applicant provided an untranslated copy of the visa applicant’s employment certificate[3].  It appears to confirm the review applicant’s evidence that she earns 6300 Yuan/month working for; what the review applicant described as, a ‘Chamber of Commerce’ and began the employment on 27/05/2019.  In the psychological assessment it is reported that the visa applicant works for her father’s company in China.    

    [3] At F: 140 (AAT)

23. At the hearing the review applicant said that the visa applicant worked full-time, whereas in the submission it is stated that it is a part-time position.  The visa applicant stated that she only wants to come to Australia for 20 days to one month and that she does not require leave from her work because she can manage things remotely.  The visa applicant’s father said that he provides for his daughter and will continue to do so for her trip to Australia.

24. Whereas it appears to be uncertain as to the employment conditions of the visa applicant as well as her need to work or otherwise, what does seem certain is that she and the people around her have access to significant finances and financial assets.  For example, in addition to the financial information that was provided to DOHA; they have provided untranslated current bank account statements for the visa applicant’s father[4], the visa applicant[5], and income/expense statements for the visa applicant[6].  On this basis I am satisfied that the funding of her trip and her lack of need of further financial assistance creates circumstances whereby she will not have a need to work or enter into long term study in Australia.

    [4] At FF: 64 & 65 (AAT)

    [5] At F: 63 (AAT)

    [6] At FF: 50 – 62 (AAT)

25. With respect to the other conditions; I note there is no information before me that would support a protection visa claim by the visa applicant or that she would be eligible to apply for a Partner visa with the review applicant if she were onshore.

26. In this case the likelihood that the visa applicant will seek to remain in Australia if the visa is granted; is best considered in the context of her incentives to return to China in contrast to the incentives she has to try to remain in Australia.  The incentives in this case are related to a variety of other matters.           

    cl.600.211(c):

27. The Tribunal has also considered all other relevant matters.

28. At the hearing the review applicant explained that he and the visa applicant have a long term plan to live permanently with their child (born in America, 21/03/2017) in Australia.  However this is in the future and they have not applied for a partner visa yet.  At this stage the visa applicant seeks to come for a visit only.

29. The DNA and birth information provided to the tribunal[7], demonstrates that the review applicant and visa applicant are the parents of the child born in America and therefore the child is an Australian citizen.  The review applicant said it is common for Chinese citizens to give birth in America and that this was a planned initiative by the applicants so that the child would have American citizenship.  Whereas Vivi said she thought that the birth of their child in America was probably not planned by the parties.

    [7] At FF: 118 -123 & 128 – 131 (AAT)

30. The DOHA delegate referred to the cancellation of the visa applicant’s previous tourist visa in their reasons for decision.  The review applicant said that the cancellation relates to threats that were made by text messages and on-line between his ex-wife and the visa applicant.  The visa applicant said that the messages related to family issues about their relationship.  She also said that she made ‘angry words’ to both the review applicant’s ex-wife and their child and that she had had no further communication with them since the posts were made.

31. The review applicant said that he has a 4½ year old daughter with his ex-wife and that he has care of her for 6 days/fortnight.  When the tribunal asked the review applicant what he would do if a care period fell within a time that his wife was visiting him in Australia, he said that his daughter would have to stay with his parents because she could not stay with him as well as the visa applicant.

32. Because of the uncertainty that exists about the visa applicant’s relationship with the review applicant’s ex-wife and daughter the tribunal provided the review applicant with an opportunity to provide a psychological assessment of visa applicant and the likely impact that her presence in Australia would have on the review applicant’s ex-wife and daughter.  While this matter may appear not directly relevant to the question before the tribunal (whether the visa applicant intends a genuine temporary stay?), the parties’ motivation for her to come to Australia is relevant to this question and therefore this is a relevant matter for the tribunal to consider.

33. The psychologist interviewed the visa applicant on 27 August 2019. 

34. I have noted that the visa applicant is recorded by the psychologist as saying that she met the review applicant in 2014 in Beijing and that they shared an interest in living in Australia.  She also stated that her father and de facto insisted that she give birth to their child at a renowned and exclusive facility in Los Angeles.  It is also reported in the assessment that the visa applicant; …wants to come with her two year old son so he can see his father and become close to him.

35. With respect to the central issues before the psychologist the visa applicant said that she received the abusive messages from the review applicant’s ex-wife while she was pregnant and the messages caused her considerable distress.  The visa applicant acknowledged that she should not have retaliated and that; …while the incidents occurred in that context, she had no right to cause her husband’s ex-wife and daughter distress.  In the opinion of the psychologist there was considerable evidence of remorse by the visa applicant that this situation had occurred at a time when she was vulnerable.

36. However, the psychologist concludes that …it would be extremely important that she is not subject to any further abuse if she comes to Melbourne.

37. Based on the psychological assessment I consider it is highly uncertain to predict what interchange would occur between the review applicant’s ex-wife and young daughter and the visa applicant if she were to return to Melbourne.  The evidence received at hearing and the information obtained by the psychologist make it clear that the issues between the parties remain unresolved.  The review applicant clearly stated that he could not care for his daughter while the visa applicant was present.   

38. Due to this uncertainty I have concerns that whatever interaction would occur between the visa applicant and the review applicant’s ex-wife and daughter; that it may lead to a situation whereby the visa applicant is less inclined to depart Australia than she may have previously been.             

    Consideration:

39. The parties have been inconsistent in their evidence as to whether the visa applicant intends to come to Australia with her son on a temporary visit.  The have also been inconsistent about her employment and life in China, to the point that the tribunal felt it was unable to informatively assess what her incentive to return to China would be.  I am also concerned about the intentions of the review applicant and the visa applicant’s father and the influence they may have over the visa applicant’s decision making with respect to where she and the child live on a permanent basis.   

40. Overall too many inconsistencies exist in this case with respect to the motives of the applicants, for the visa applicant to come to Australia, for me to be satisfied that the visa applicant has a genuine intention to remain in Australia on a temporary basis only.

41. 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

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

    Ian Garnham
    Member