Zhao (Migration)

[2020] AATA 5745

Zhao (Migration) [2020] AATA 5745 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Kun Zhao

VISA APPLICANTS:  Yan Zhao
Leibo Song
Ge Song

CASE NUMBER:  1813620

HOME AFFAIRS REFERENCE:               BCC2018/1741953

MEMBER:Lilly Mojsin

DATE:14 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 May 2020 at 9.55 am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – applicant’s son investigating future studies in Australia – concerns over financial documents – secure employment in China – decision under review affirmed          

LEGISLATION

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

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 3 May 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 19 April 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this review, the applicants applied for the visas 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 delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the applicants genuinely intend to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 23 April 2020 and on 7 May 2020 to give evidence and present arguments, by telephone.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and also because the visa applicant is living in China.

8. 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 telephone.

9. The Tribunal is satisfied that the visa applicant and review applicant were given a fair opportunity to give evidence and present arguments to the Tribunal, in support of the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In the present review, the visa applicant and her family seek the visas for the purposes of visiting her brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

11. The review applicant has provided the following documents:

    ·Passport – Yan Zhao

    ·Flight tickets – Yan Zheo et al. 14/08/18 – 25/08/18

    ·Letter from Employer – Yan Zhao, SL (Yantai) Auto Lighting Co. Ltd. 20/03/2018

    ·Letter of support from Kun Zhao (undated)

    ·Passport – Ge Song

    ·Personal certificate of deposit – Yan Zhao 01/10/2018

    ·Flight tickets – Yan Zhao et al. 14-25/18 (duplicate)

    ·Passport – Leibo Song

    ·Letter of support from Kun Zhao (undated, duplicate)

    ·Letter form employer – Leibo Song, Yantai Wookuang Machinery Industries Co Ltd. 16/03/18

    ·Flight tickets – Yan Zhao et al. 14-25/18 (duplicate)

12. The 1^st named applicant works as a Technician and Trade Worker, since 1 December 2009. Her husband, the 2^nd named applicant works as welder. The 3^rd named applicant is their child.  The 1^st named applicant is the sister of the review applicant.

13. A letter from the 2^nd named visa applicant’s employer states that he works in the production department of the company and he has approved leave for 10 days and his position will be retained until the end of the holidays. 

14. Review applicant states in a letter to Tribunal that his sister has a hearing disability since she was born, and she lives with their parents for over 30 years and does not need to pay for anything. Their parents pay everything for her and help her to save money.  She needs some help to travel overseas. Her husband has his own property in China, and his mother lives in the country, his father died a few years ago, there is no reason for him to stay in Australia for a long term.

15. At the first Tribunal hearing the review applicant told the Tribunal that the visa applicant would not be able to give evidence to the Tribunal. The Tribunal adjourned the hearing in order for the visa applicant to be available to give evidence. The visa applicant subsequently gave evidence to the Tribunal.

16. The review applicant stated that he arrived in Australia in 2010 as the holder of a student visa, he is now a permanent resident. He is married with 2 children and he lives in Canberra. He works for NAB in retail as a customer advisor. His sister, the visa applicant, will come to Australia for around 2 weeks. Asked what she proposes to do whilst in Australia the review applicant said that his sister, husband and child will catch up with family.

17. The review application told the Tribunal that he will support his sister’s family when they are in Australia. If necessary, his parents who are in China, can offer support. His sister and her family live with her parents. Parents have retired and have been to Australia many times before. The Tribunal put to the review applicant that a note on the Department file states that the documents of savings provided by the visa applicant show identical crease marks and serial numbers that are not inline.  The review applicant responded that the documents are all her savings and are original documents. He saw their documents as he helped them with all the documents when they applied.

18. A letter from the visa applicant’s employer states that she works in the production department and she has approved leave for 10 days and her position will be retained until the end of her holidays. 

19. The visa applicant works in a factory, but she is not working at the moment, during COVID19. She is a labourer. Her husband is employed and he works as a welder.

20. Asked about incentives for his sister to return, the review applicant said that his sister has a problem with her hearing and they do not know how to speak English. They would not survive in Australia as they have property, work and have a car in China.  The visa applicant’s husband has his own property, they do not live there, it is 150 kilometres away. They want to come to Australia for a tour.

21. The Tribunal noted that it was a lot of money to spend to come to Australia for such a short period. The review applicant replied that they have more than 300 000 rmb and he will take care of their expenses and the expenditure will not be high. The airfare will be paid by the review applicant as previously he had bought tickets for them.

22. The Tribunal noted that if the visa applicants were to remain in Australia, they would have a good quality of life.  The review applicant responded that it is a simple plan for them to come. Their son would like to have a look to see if he wants to come to study in Australia. If they come, he and his wife would not be able to afford to keep them in Australia. His parents have come to Australia a few times and his parents in law as well.

23. The Tribunal rang the visa applicant in China. The visa applicant told the Tribunal that she intended to come to Australia to visit her brother and to see some scenery. She will come for 2 weeks.  She is not working at the moment, due to COVID. After the virus she can go back to work. She works as a vehicle light worker in a factory. She is the operator of machinery. She earns rmb 4000 per month. Her husband works as a welder in a factory. He earns rmb 6000 per month.  They live with her parents.

24. The Tribunal put to the visa applicant that a note on the Department file states that the bank savings certificates provided by her show identical crease marks and serial numbers not inline and suggest the certificates have been created in order to obtain the visa. She responded it is not.  Asked why her husband did not provide financial details she said that  he has savings.

25. The Tribunal asked the visa applicant what her religion was, she said “nil”. Asked if she or her husband are or were members of any political party or movement, she said “no”. Asked if she or her husband were members/supporters or practitioners of Falun Gong she responded “no”.

26. In regard to her incentives to return to China after being in Australia, she said that she cannot survive in Australia. She just wants to visit her brother and see beautiful scenery.

27. The review applicant said he had no idea there had been a problem with the bank certificate and if the Tribunal wanted, he would obtain another bank certificate.   

    REASONS AND FINDINGS

28. The issue in this review 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.

29. In the present review, the visa applicant and her family seek the visa for the purposes of visiting her family. The visa applicant proposes a visit of about 2 weeks.  The visa applicant’s son would like to look at schools for possible future studies in Australia.

30. The Tribunal finds this is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

31. 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)).

32. The visa applicant has not provided evidence of having travelled outside her home country.

33. 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.

34. The Tribunal considered the oral evidence of the review applicant and the visa applicant, and the evidence and material provided to support the application. The Tribunal acknowledges that the visa applicant’s parents have travelled to Australia and places favourable weight on the parents returning to China.

35. In assessing whether the visa applicant genuinely intends to stay temporarily in Australia for the stated purpose and whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject, the review applicant has given evidence she only intends to visit Australia for up to 2 weeks and then intends to return to her home, job and other family members in China. The couple live with the visa applicant’s parents and the mother of the husband of the visa applicant does not live with them. It is claimed that the family are financially well off.

36. In regard to the visa applicant’s financial position, in 2018 bank deposit certificates indicate an amount of Yuan Renminbi 300 000 had been deposited to the visa applicant’s name. The delegate of the Department questioned the genuineness of the document due to some of its features. As the delegate has provided no other information for the Tribunal to assess the genuineness of the document, the Tribunal is not satisfied that the document is not genuine. Therefore, the Tribunal accepts that the visa applicant has money in a bank in China. The visa applicant has not provided any financial information regarding her husband’s financial situation other than a letter regarding his monthly earnings.

37. The visa applicant works as a labourer and her husband as a welder. Both the visa applicant and her husband are taking leave of 10 days to come to Australia. The Tribunal accepts that having a job is an incentive to return to China.

38. The Tribunal does not accept as plausible that the visa applicant cannot survive in Australia.  As the review applicant and visa applicant speak Mandarin, and a significant proportion of people in Australia speak Mandarin, the Tribunal does not accept that a failure to speak English is the cause for not surviving in Australia and an incentive for compliance with visa conditions and returning to China before the expiration of the visa.  The review applicant claimed that the visa applicant has a hearing difficulty since birth, but the Tribunal places no weight on this claim as an incentive to return to China or to comply with visa conditions or affecting her survival in Australia as she was able to communicate with the Tribunal via the telephone.

39. The visa applicant and her husband are not contributing to their own travel expenses, despite having their own money. The Tribunal accepts that the visa applicant will rely on her brother for accommodation whilst in Australia and he will pay the other expenses for her trip, including airfares for the family. The review applicant will be spending a large sum of money to pay for the visa applicant and her family to travel to Australia and to support them during a short visit of up to 2 weeks.  The review applicant has attested that he will pay all their costs, but states that he does not have the ability to support his sister and family if she remained in Australia and if the family needed money his parents would be able to assist.

40. The visa applicant has parents in China and her husband has his mother in China. These are strong family ties. The visa applicant and family live with her parents in order to save money. There is no evidence before the Tribunal to suggest that the parents have any needs that would provide an incentive for the visa applicant and family to return. The Tribunal does not accept as plausible that returning to live with her parents is an incentive for the visa applicant and family to return to China.

41. Despite assurances that the visa applicant has a stable and comfortable life and she and her husband have paid work, the Tribunal is not satisfied that the visa applicant and her immediate family have an incentive to return to China, as the whole family unit are travelling together to Australia. The visa applicant and her family have strong family ties in Australia, that include her brother and his family. The Tribunal considers that the visa applicant’s Australian family ties would act as a strong incentive for her to remain in Australia after the end of a permitted stay.

42. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The visa applicant’s husband owns a house, and the couple have a car. The Tribunal places little weight on property ownership of a house in which the husband does not reside and ownership of a motor vehicle as an incentive to return because these are assets that can be sold or transferred.

43. The Tribunal is mindful that the visa applicant wishes to visit her brother.  Nonetheless, the Tribunal has concerns about the reason that the applicants may on this occasion be all travelling to Australia for a short 2 week visit and whether they genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

44. The Tribunal notes that the visa applicant has applied for a tourist visa and not for a sponsored visit visa and thus there is no provision for the lodging a security bond or for sponsorship obligations to be taken into account.

45. The Tribunal considers on balance that the circumstances which would encourage the visa applicants to return to China are far outweighed by factors which would encourage them to remain in Australia.

46. For the above reasons the Tribunal is not satisfied that the visa applicants 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

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

    Lilly Mojsin
    Member