Zhang (Migration)

[2023] AATA 4085

Zhang (Migration) [2023] AATA 4085 (29 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xin Zhang

VISA APPLICANT:  Mr Bin Zhang

REPRESENTATIVE:  Ms Fengfeng Zhang (MARN: 1277056)

CASE NUMBER:  2218357

HOME AFFAIRS REFERENCE(S):          BCC2022/4977211

MEMBER:Tania Flood

DATE:29 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 29 November 2023 at 11:17am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant to accompany his father for family visit – previously refused visa applications – home and business ownership in home country – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 27 November 2022 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 23 November 2022. 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 (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 visa was refused on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied he genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 15 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.  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.

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

   Applicant’s Migration History

8. Department records indicate the visa applicant has never travelled to Australia before.

9. Department records indicate the visa applicant applied for a subclass 457 visa on 18 September 2016 which was refused 20 February 2017. The visa applicant lodged a review to the Tribunal of the refusal, which was affirmed on 24 April 2019. The occupation for which the 457 visa was lodged for was Wall and Floor Tiler.

10. Department records indicate the visa applicant lodged a subclass 500 (Student) visa on 12 January 2022 which was refused on 1 February 2022. A second Subclass 500 visa was lodged on 22 February 2022 which was refused on 12 September 2022.

11. In his visa application the visa applicant notes he visited Thailand in 2012 and Japan in 2018.

    Application for a Tourist visa

12. The visa applicant lodged a Subclass 600 visa on 23 November 2022 which was refused on 27 November 2023. An application for review of this visa refusal was lodged on 13 December 2022.

13. The following information is included in the application for a Visitor visa.

14. The visa applicant is a citizen of China and is his application for the visa he stated he wishes to accompany his father to celebrate the 2023 Chinese New Year with his brother’s family in Australia. The visa applicant indicated he is married with two children all of whom are residing in China. The visa applicant wishes to travel with his father and is seeking a visa valid for one year with multiple entry.  He indicated he will not undertake a course of study in Australia. 

15. The applicant is self-employed as a Manager with Yinianqianshan Decoration Co. Ltd since December 2021. The visa applicant’s stay in Australia will be self-funded with his own savings and work income.

16. The review applicant, who is the sponsor, is the visa applicant’s brother.

    Evidence submitted to the Department

17. The following information was provided to the Department.

    a.Review applicant’s ATO notice of assessment for the year ended 30 June 2021.

    b.The review applicant’s CBA joint bank statement for period from 1 July 2022 to 22 October 2022, showing balance of $1,298,971.

    c.Various untranslated documents.

    d.Copy of the review applicant’s driver’s licence.

    e.Representative’s submission dated 2 November 2022. The submission outlines the purpose of the visit, including assisting his elderly father to travel, and the applicant’s strong personal ties to China which include his business and his family.

    f.Letter from the review applicant (sponsor) dated 2 November 2022. The sponsor states he has invited the visa applicant to accompany his father to care for and assist him during the flight. The sponsor states he has not seen the visa applicant since the pandemic. He states the visa applicant operates a business in Beijing which he needs to return to. He states the visa applicant’s wife and two children reside in Beijing. He states all expenses will be undertaken by the visa applicant during his stay and that he will make sure the visa applicant leaves Australia before expiration of his authorised stay.

    g.Copy of the review applicant’s wife and children’s Australian passports.

    h.Copy of the visa applicant’s passport, including exit and entry pages.

    i.Copy of the visa applicant’s father’s passport, including entry and exit pages.

    Evidence submitted to the Tribunal

18. The following documents have been provided to the Tribunal.

    a.Representative’s submission dated 6 November 2023. The representative submits that the purpose of the visa applicant’s visit is to assist the visa applicant’s father, who has been granted a visitor visa, during his travel on the flight. It is submitted that it would be a family reunion. It is submitted that the visa applicant intends to stay one month in Australia. The representative outlines the visa applicant’s financial security including financial assets equivalent to AUD$800,000 and an apartment in Beijing, personal and family ties to China and the lack of incentives to remain in Australia.

    b.Letter from the review applicant dated 6 November 2023. He states the visa applicant lives a happy and financially secure life in China. He states the visa applicant’s family is largely dependent on the visa applicant, and that he would not abandon his wife and children in China. The review applicant states he would like his brother and father to visit Australia and that he cannot let his father take an international flight by himself.

    c.English translated copy of the visa applicant’s household register book.

    d.Copy of the review applicant’s driver’s licence, passport, city council rate bill, CBA letter confirming bank balance as at 25 October 2023 (184,358.86) and ATO notice of assessment for the year ended 30 June 2022.

    e.Copy of a Business Voucher issued by the Agricultural Bank of China listing the financial products of the visa applicant.

    f.English translated copy of the visa applicant’s Employment Income Certificate confirming he is an employee at Beijing Jinzhao Decorating Design Co, in the position of Interior Designer with average monthly income of CNY 8000.

    g.Copy of the visa applicant’s Certificate of Real Property Ownership issued on 25 October 2021, showing a 1% ownership by him and a 99% ownership by his wife.

    The Tribunal’s hearing

19. The review and visa applicant’s oral testimony to the Tribunal is summarised as follows:

20. The review applicant stated that he came to Australia approximately 20 years ago as a student.  He completed his university studies here and is now a permanent resident.  He is married to an Australian citizen and he and his wife have an eleven-year-old daughter and a seven year old son who are Australian citizens.

21. The review applicant stated that both his parents are alive and residing in Fujian Province in China.  He has one younger brother, the visa applicant who resides in Beijing.

22. The review applicant stated that he owns and operates various businesses including a building supply, scaffolding and trucking business.  He said that he received an initial investment from his family to get started in business.  He said that his father is retired but previously owned a construction retail business and a business for manufacturing bathroom utilities. 

23. The review applicant stated that he obtained qualifications in accounting but his brother only completed high school.    He said his brother became a tiler after completing school.

24. The review applicant stated that his brother currently works as an interior designer for a company in Beijing.  He obtained the job based on his prior experience in the construction industry. 

25. The review applicant stated that his brother had his own business but it was impacted by COVID and closed down in 2022. 

26. The review applicant stated that he was the sponsor for his brothers 457 visa application.  At that time they proposed that he be granted the visa to perform tiling work as a subcontractor to the review applicant’s business.  He said he told his brother how much a tiler can earn in Australia.  He said he wasn’t intending to stay in Australia, just to work, make money and return home.  When the visa was refused he gave up on that idea. 

27. The review applicant stated that his brother tried to apply for a student visa in 2022 after his business closed down.  He wanted to study a building construction certificate IV and diploma to improve his knowledge. He applied to study in Australia for two years. 

28. Regarding the visa applicant’s considerable bank savings the review applicant stated that he made good money from the tiling business initially.  He said that his father also injected capital into this business initially. 

29. The review applicant stated that if his brothers 457 and student visa applications had been successful his wife and children would have remained behind in China.

30. The review applicant stated that he is planning for his father to visit Australia but because his brother’s visa was refused he had to postpone the plans made in 2022.  He hopes to get his father back to Australia for Chinese New Year.  He said that this is likely to be the last visit his father makes to Australia because his health is poor.  He said his father’s visitor visa expired a few days ago but they intend to reapply.

31. The review applicant stated that the proposed length of the visit of his father and brother to Australia is three to four weeks.  His brother will not remain in Australia as he will need to accompany his father back to China.

32. The review applicant advised that his mother has visited Australia three to four times.  He said she is not intending to join her husband on his next visit as she needs to remain in China to care for his grandmother. 

33. The review applicant stated that it is necessary for his brother to travel with their father due to his ill-health.  He said his father has diabetes and blood pressure problems and finds it difficult to walk.  He speaks no English and his brother is the best person to accompany him to Australia.  He said if his brother’s visa is refused his father will likely not travel.

34. The review applicant also stated that he has not seen his brother for ten years and their father wants them all to be reunited in Australia. 

35. The Tribunal put it to the review applicant that it appears his family has considerable financial resources to allow either himself to travel to China to collect his father or to engage an airline assistant to accompany his father.  The review applicant agreed he could travel to collect his father but said his father really wants to be with his two sons in Australia.

36. When asked why they are seeking a one-year visa with multiple entries the review applicant stated he did not know.  He said he wouldn’t mind if his brother was only granted a single-entry visa.

37. The review applicant stated that his brother is married and has two children aged nine and one.  He owns an apartment which was gifted to him by his father.  The property was placed under the name of his wife as that is how it is done in China.

38. The Tribunal asked the review applicant why it was necessary for his brother to come to Australia to obtain a certificate IV qualification when it appears he is doing well financially and career wise in China.  He said his brother wants to improve himself.  He said his brother is not the kind of person who wants to live abroad.  He added his brother was offered the same opportunity as he by his father to study in Australia but he refused.  He said that his brother is now working as an interior designer and is pretty stable owning his own property and having substantial investments.  He said his brother doesn’t have any stress or pressures and would need a visitor visa if their father wasn’t intent on having a family reunion. 

39. The review applicant stated that he doesn’t think his brother practices any religion and he doesn’t think he has been involved in any disputes with the Chinese government. 

40. The Tribunal put it to the review applicant that it is claimed on the one hand that his brother lives a happy and stable life in China and will not remain in Australia but on the other hand he has made multiple attempts to secure various visas to Australia for lengthy stays.  The review applicant referred to his earlier responses about the purpose of the 457 and student visa applications. 

41. The visa applicant confirmed he resides in Beijing with his wife and two children.  He said that his parents and in-laws all reside in Fujian province.  He confirmed he completed high school and currently is employed by an interior design company in Beijing.  He said he first was employed by this company in 2019 but he left and later recommenced working for them in either March or April 2023.   He said that he works with clients, taking measurements and drawing up plans.  He said that he brings skills gained in the construction industry to the role.  He confirmed he previously worked as a tiler.  The visa applicant confirmed that his own business closed down as a result of the COVID pandemic.

42. The visa applicant similarly testified that he applied for a subclass 457 visa to work as a tiler and to make money and that afterwards he applied for a student visa to study building and construction for two years to improve himself.  He confirmed that his family were to remain in China had he been successful in those applications. 

43. The visa applicant similarly testified that he wants to accompany his father to Australia and to see his older brother for four weeks.  When asked why he is seeking a one-year visa with multiple entries he said he does not know. 

44. The visa applicant declared that he would return home to China after visiting Australia as his family are in China, he has a stable job and a house in China. 

45. When asked about his financial investments he said that he saved money during all the years he worked and also was given money by his wife and father. 

46. Regarding his house title he said the house is a joint asset owned by him and his wife.  He said that his father brought the house for his wife which is usual practice in China.  He pointed out that the property ownership certificate is in both their names. 

47. In closing the Tribunal asked the review applicant why it is necessary for the family reunion to occur in Australia given his father’s ill-health and the difficulty of him travelling.  He stated that he is very busy and travelling to China would also necessitate his wife and children having to travel.  He pointed out that his brother lives in Beijing whereas his parents live in Fujian province and claimed this further complicates a reunion in China. 

    Post-hearing submission

48. After the hearing the review applicant provided the following in support of the application for the Visitor visa:

    -A translated copy of an interior decoration design agreement entered into between Nan Zhang and Beijing Jinzhao Decoration Design Co Ltd signed by Bin Zhang the designer.

    -A translated copy of a construction contract for a residential interior decoration project in Beijing between the abovenamed parties.

    -A translated copy of a Bank of Beijing Personal Account Transaction Statement for the period 20 November 2022 to 20 November 2023 showing payroll credit entries.

    -A translated copy of a personal interests record of Beijing Social Insurance (Payment information of the Insured) in the name of the visa applicant listing his social insurance number and employer, Beijing Jinzhao Decoration Design Co Ltd.

    -A translated copy of a Disease Certificate indicating the visa and review applicants’ father is being treated for post-implantation of coronary artery stent, diabetes, hypertension, gastritis and depression. 

    -A copy of a Chinese passport in the name of Aizhen Huang.

    CONSIDERATION OF CLAIMS AND EVIDENCE

49. 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.

50. 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.

51. 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)).

52. The Departments record indicate the visa applicant has never travelled to Australia. 

53. 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(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.

54. For the following reasons the Tribunal is not satisfied the visa applicant will comply with condition 8531 if granted a Visitor visa or that he genuinely intends to visit Australia temporarily.

55. Having carefully considered the available evidence the Tribunal accepts the visa applicant has considerable financial resources at his disposal, in particular significant bank savings.  However, the Tribunal has concerns about the source of this income noting that his business collapsed during COVID and his oral testimony is that both his father and his wife have contributed funds to his investment portfolio.  Despite this the Tribunal accepts he commenced employment as an Interior Designer with a Beijing based company in early 2023 and remains in that employment.  The Tribunal also accepts he co-owns with his wife the apartment in which they currently reside albeit that it was gifted to the couple by the visa applicant’s father. 

1. Despite his apparently stable economic circumstances in China the applicant has made several attempts, including as recently as last year, to obtain visas which would allow him to enter and remain temporarily in Australia for several years.   The Tribunal accepts the visa applicant is married and has two children and that based on his testimony his family would be remaining in China in the event he secures a Visitor visa.   While it is claimed that his family in China are a strong inducement for him to leave Australia at the end of the proposed visit the Tribunal finds it significant that his testimony indicates he was willing to be apart from them for several years had he secured any of the visa’s he previously applied for.  In the circumstances the Tribunal has placed little weight on the inducement his wife and children may provide for him to return to China at the end of the proposed visit.

2. Added to the Tribunal’s concerns is the claimed reasons behind the applications for the subclass 457 visa and the two applications for a Student visa.  In regard to the subclass 457 visa application the review applicant has stated that it was driven in part by an ability of the visa applicant to make money which appears at odds with his claimed financial stability in China.  In regard to the Student visa applications it is claimed that the visa applicant wanted to improve himself by completing a relatively low-level Certificate IV qualification in building and construction.  This is despite the evidence indicating that the visa applicant has many years of experience in the construction industry so much so that he managed to secure a role as an Interior Designer based on his skills and experience and despite having no formal qualifications in the field.  Based on the available evidence the Tribunal is concerned the visa applicant is attempting to utilise any visa pathway available to him to secure his entry to Australia rather than seeking those visas for genuine purposes. 

3. The Tribunal has also considered the proposed rationale and claimed need for the visa applicant to secure the visa, that being to accompany his ailing father to see his son in Australia one last time. The Tribunal notes their father’s Visitor visa has now ceased but considers it likely he will be successful in making a further application based on his migration history which reveals no evidence of non-compliance.  The Tribunal accepts their father may be unwell and unable to travel alone but considers the family has significant wealth and access to varying methods to overcome this challenge including the review applicant personally escorting his father or paying for airline assistance.  The Tribunal acknowledges the review applicant’s testimony that it is his father’s wish to reunite with both his sons however it is not persuaded that this need necessarily happen in Australia as is claimed.

4. The Tribunal also notes that it is indicated in the application for the Visitor visa that the visa applicant is seeking a one-year visa with multiple entries.  During the hearing the applicants stated that one visit is proposed for a maximum duration of four weeks.  When asked to account then for the information contained in the application form both applicants merely stated that they did not know.

5. The Tribunal acknowledges that the review applicant’s father and mother have both visited Australia several times holding Visitor visas and have complied with the conditions of those visas.  However, they are elderly and retired and the Tribunal considers their circumstances and expectations for their futures to be significantly different to the visa applicant at this stage of his life.  The Tribunal does not consider the migration history of the parents to be a strong indicator of what the visa applicant might do in the event he is granted a Visitor visa and secures entry to Australia.   

6. Relevantly, the Tribunal also notes that the review applicant owns and operates several businesses in Australia and appears well placed to offer employment to the visa applicant.  The Tribunal considers this could induce the visa applicant to remain in Australia at the end of any visit to Australia.  The Tribunal is also not satisfied that the visa applicant will comply with condition 8101 if he is granted a Visitor visa. 

7. The Tribunal acknowledges the claim made at hearing that the visa applicant will return to China at the end of the visit because it will be necessary for him to accompany his father on his return trip.  However, for the reasons noted above in the event their father travels to Australia and requires assistance to return to China alone the Tribunal considers the family have the resources to manage this in a variety of ways. 

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

9. Taking account of the abovementioned concerns 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. 

10. The Tribunal therefore finds that the requirements of cl 600.211 are not met.

    DECISION

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

    Tania Flood
    Member