Zhao (Migration)

[2021] AATA 5264

Zhao (Migration) [2021] AATA 5264 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wenxiang Zhao

VISA APPLICANT:  Ms Haijuan Wang

CASE NUMBER:  1931005

HOME AFFAIRS REFERENCE(S):          BCC2019/4765045

MEMBER:Melissa McAdam

DATE:9 November 2021

PLACE OF DECISION:  Sydney

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 09 November 2021 at 4:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – requested length of stay – genuineness of marriage with review applicant – intention to comply with visa conditions – good migration history of the review applicant – stable and secure employment – willingness to lodge a security bond – 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 24 October 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 review applicant was represented in relation to the review by his registered migration agent.

3. The visa applicant applied for the visa on 23 September 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.

4. 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.

5. The following is a summary of the information the visa applicant provided in her visa application:

   a.She is a 37 year old citizen of China.

   b.She is married to the review applicant, who is an Australian citizen. 

   c.She has also been known by the name Wang Haihua.

   d.She lives in Harbin in Heilongjiang province.

   e.Her parents, brother and 8 year old child are also living in China.

   f.She wants to visit her husband in Australia for up to three months. 

   g.She has been employed as a manager at a refrigeration company since 2016.

   h.She will fund her own stay in Australia and be supported by the review applicant.

   i.She was previously refused a Visitor visa in 2015.

6. The following is a summary of the information the review applicant provided in his visa sponsorship application:

   a.He is the visa applicant’s spouse.

   b.He is 65 years old.

   c.He is an Australian citizen.

   d.He has been employed as a labourer for three years.

7. The applicants provided copies of the following documents with the visa application:

   -A certificate of ownership of real estate in the visa applicant’s name.

   -The review applicant’s Australian passport.

   -The visa applicant’s Family Registration details.

   -The visa applicant’s Birth details.

   -The visa applicant’s Household Register.

   -The review applicant’s Australian Citizenship certificate.

   -The visa applicant’s bank account statement.

   -The visa applicant’s Chinese passport.

   -The applicants’ Marriage Certificate, registered on 5 July 2019.

   -The review applicant’s bank account details.

   -The visa applicant’s Chinese ID card.

   -A letter from the visa applicant’s employer confirming her employment.

   -A letter by the visa applicant explaining why she wishes to visit Australia.

8. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the requested length of stay is not consistent with a person who is the prime care giver for a young dependent child; the applicant's employment may not provide sufficient incentive to induce her to return to China within the validity of her visa; and the delegate was unable to make a finding that her relationship with the sponsor and the purpose of her visit was genuine. The delegate was not satisfied that the applicant had demonstrated sufficient personal, employment, cultural and business ties to demonstrate that she intended a genuine visit to Australia. Further, due to her intention to reside permanently in Australia through her marriage to an Australian citizen, the delegate had concerns that the applicant may be induced to remain in Australia for a longer period than the validity of her visa.

   Information to the Tribunal

9. The review applicant and his Migration Agent made no pre-hearing submissions to the Tribunal.

   Tribunal Hearing

10. The review applicant appeared before the Tribunal on 4 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

11. The following is a summary of the information provided by the review applicant at the hearing:

    a.He married the visa applicant in China and they registered their marriage on 5 July 2019.

    b.When the review applicant first came to Australia he rented out his home in China.  The visa applicant rented it from him.  They first met in person in 2016 when the review applicant returned to China and met the visa applicant through his real estate agent.    He asked the visa applicant to pay her rent directly to him. Therefore they had more and frequent communication with each other.

    c.Before the pandemic the review applicant returned to China every year. After the review applicant divorced his first wife he asked the visa applicant to marry him.  He wanted to marry her because he was single in Australia, His first wife needed to take care of her child and she did not come to Australia.  She stayed in China. When she came to Australia the child became sick in Australia. So they both just stayed here for three months.  The applicant can’t stay in Australia by himself.  He needs a wife.

    d.The review applicant acknowledged there is a large age difference between himself and the visa applicant.  The Tribunal asked him why she wanted to marry him and he responded that the Tribunal would need to ask her.  The Tribunal asked again for a response and the review applicant stated that she wanted to marry him because she would not need to pay him rent for staying in his property anymore, it will belong to her.  She plans to visit Australia and New Zealand.  While in Australia she will travel interstate. She will decide if she can adapt to life in Australia. If she can, she will return to China and he will sponsor her for a partner visa in Australia.

    e.If the visa applicant decides she does not want to live in Australia the review applicant will retire to China to live with her.  He is approaching retirement age and he would be willing to live in China again after he finishes working.

    f.He has not yet applied for a Partner visa for the visa applicant because it depends upon whether she likes Australia or not.  If she does, they will apply. If not, they won’t and he will return to China   He is due to retire in 2022.  He can live comfortably in Harbin.  He would stay in China for six months a year and return to Australia for the required period to maintain his eligibility for the Australian pension.

    g.He and his wife will live together, as a married couple, in China.  They both love each other.  He realised at the end of 2018 that he loved her.  When he returns to China they lived together in his house in Harbin.  Just he and his wife were at the home.  The Tribunal asked the review applicant where the visa applicant’s child was.  The review applicant responded that this was a mistake by the delegate, the visa applicant has no child.  The child referred to in her visa application is her brother’s daughter.  The review applicant does not know why his Migration Agent had not clarified this prior to the hearing.

    h.The visa applicant was previously married. She divorced about five years before her marriage to the review applicant.

    i.The visa applicant works in a refrigeration storage place.  She checks the stock and asks for unpaid bills.  She has done this for five to six years. Her workplace is in a development zone.

    j.His wife wants to visit Australia for two to three months.  She cannot get longer leave from her workplace. Due to the pandemic she has not been able to take leave for some time so her workplace will understand she needs leave now to see her husband in Australia.

    k.The review applicant has no other relatives he would like to visit him in Australia. His sister is in Harbin but she is old, she is nearly 90.

    l.The review applicant is willing to lodge a security bond for his wife’s visit to Australia. He does not earn that much, just $40,000 to $50,000 per year, so if he lost a large sum of money it would cause him difficulty.  He is trying to save for his retirement.

    m.The Tribunal put to the review applicant that if his wife does decide she wants to live in Australia a partner visa application can take a long time to process.  The review applicant responded that they will just wait and will visit each other.

12. The following is a summary of the information provided by the visa applicant at the hearing:

    a.She does not have a child.  If she had a child her husband would not have married her because a child would be an extra burden to him.  Mengya Wang is her niece.

    b.She and her husband married on 5 July 2019.  She married him because after her divorce she felt quite lonely.  He could tolerate her and care about her because he is older than her.  He is quite a good man.  Since their marriage they live together when the review applicant is in China.

    c.After her divorce the visa applicant did not have a place to live so she rented a place owned by her now husband. This is how they met.

    d.If her Visitor visa is approved she wants to come to live with her husband for a period of time to know about his situation here and investigate if she can adapt to life in Australia.  If she decides she can then she will return to China, make arrangements about her work and then they would apply for the visa for the visa applicant to live with him permanently in Australia.  But if not, her husband will go back to China next Christmas and they will live together there.

    e.The Tribunal put to the visa applicant that her husband is almost 30 years older than her.  She responded that she was previously married to someone of her own age but they divorced because her former husband did not tolerate her because her temper is not that good.  The review applicant is older than she is and his living conditions are good. He knows how to care about her and can tolerate her temper. It is better to marry an older person who does not make you angry every day.

    f.The visa applicant works in Harbin at a refrigeration service company.  She works in the business section.  She keeps in contact with customers about their refrigeration needs and the orders they make.  Her job title is Deputy Chief of the Business Section.  She has been in this job since 2016.

    g.If it takes years for a partner visa to be granted she will just continue to work and live as before, and wait.  If the borders are open they can see each other. They want to live together as a couple.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. The Tribunal notes that the delegate considered she was unable to make a finding as to whether the applicant’s marital relationship was genuine or not.  However within the limited context of the assessment of the visa applicant’s visa application the Tribunal found the applicants’ evidence reasonably forthcoming and persuasive that they had both genuinely entered a second marriage with each other.  While they did not demonstrate a deep level of love and attraction they were able to convey that at their mature ages the relationship suited each of their needs for companionship and support in their futures.  Therefore, for the purposes of this review application only, the Tribunal accepts that their marriage is a genuine one.

15. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband in Australia.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

16. 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)).

17. The visa applicant has not previously held a visa in Australia so there is no evidence of past compliance or non-compliance by her.

18. 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.

19. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that she will have access to sufficient funds to support herself during a short visit to Australia. The Tribunal is satisfied that she does not intend to work while in Australia.

20. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

21. Condition 8503 refers to entitlement and is not a condition that involves compliance.

22. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

23. The Department’s Procedural Advice Manual, PAM3, section on Visitor visas includes guidance for Department delegates assessing applications by a visa applicant who “is in a relationship with an Australia citizen, or permanent resident and eventually may intend to reside permanently in Australia, but has not yet made a final decision to do so and/or made a permanent visa application outside Australia.”  The PAM3 advice states that the “possible eventual intention of the applicant to stay permanently in Australia should not be considered grounds to refuse an FA-600 visa. Section 65 delegates should consider the applicant’s current intentions and whether the applicant is attempting to circumvent proper migration channels.”  While this advice is not binding upon the Tribunal it outlines an approach that the Tribunal considers has some relevance to this review application.

24. The Tribunal accepts that the applicants were married in 2019 and have yet to decide in which country they wish to live together post the review applicant’s retirement.  The visa applicant’s evidence that she wants to visit Australia to ascertain if she would like to move here to live with her husband appears both understandable and a practical step to take.  The Tribunal considers that it is consistent with an intention to stay temporarily in Australia for the purposes of the visa.

25. The Tribunal notes that the visa applicant’s initial visa application indicates that she has a young daughter in China.  The Tribunal accepts that this is a mistake in the application as the documents submitted by the applicant with her visa application clearly indicate that the girl is the visa applicant’s niece, not her daughter.

26. The Tribunal accepts that the visa applicant is from Harbin in China and that she is divorced.  The Tribunal accepts the visa applicant’s parents, brother and niece are also living in Harbin.    The Tribunal considers that the presence of close family members in China is some inducement for the visa applicant to return there.

27. The information before the Tribunal indicates that the review applicant has a good immigration history in Australia. The Tribunal gives substantial weight to the good migration history of the review applicant in Australia. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to his family’s immigration compliance in Australia.  The Tribunal considers this motivation for him to ensure the visa applicant complies with her visa conditions and departs before her Visitor visa expires.

28. The visa applicant has employment in a refrigeration company in Harbin.   The Tribunal accepts that the work is reasonably stable and secure and that she would have some motivation to return to and resume this work.

29. The Tribunal notes the review applicant’s willingness to lodge a security bond for the visa applicant’s visa to Australia. The Tribunal accepts that the risk of losing a large sum of money is further motivation for the parties to ensure the visa applicant complies with her visa conditions in Australia.

30. While it would be natural for the visa applicant to wish to remain with her husband the applicants were able to explain how they would first decide in which country they wish to live, and then make the necessary plans to arrange this.  In the interim they would visit each other.

31. In the Tribunal’s view the incentives for the visa applicant to return to China outweigh the reasons for her to remain in Australia.

32. 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

33. 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.

    Melissa McAdam
    Member