Zhao (Migration)

[2023] AATA 1713

Zhao (Migration) [2023] AATA 1713 (31 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yu Zhao

VISA APPLICANT:  Ms Huiquin XIAO

CASE NUMBER:  2212984

HOME AFFAIRS REFERENCE(S):          BCC20221716373

MEMBER:Stephen Conwell

DATE:31 May 2023

PLACE OF DECISION:  Melbourne

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 31 May 2023 at 11:23am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –Tourist stream – applicant has sufficient funds and assets to provide for her during the proposed visit– visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, 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 2 September 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 16 May 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 delegate refused to grant the visa on the basis that the visa applicant (the applicant) did not meet cl.600.211 because the delegate was not satisfied he genuinely intends to stay temporarily in Australia. 

5. The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

7. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

8. The following summary of the applicant’s immigration and personal history is derived from the evidence in the Departmental and Tribunal files:

   ·     the applicant is a 56-year-old national of China. She is the mother of the sponsor who is an Australian Permanent Resident. She is divorced and recently retired;

   ·     no non-accompanying family members are identified in the visa application;

   ·     the sponsor and his wife have two children – the youngest being under three years of age. The stated purpose of the visit was to spend time with the sponsor’s family and to help care for the two young children during the proposed visit;

   ·     the applicant claims to have sufficient funds (and owns two properties in China) to fund her visit, although the sponsor claims that he will fund his mother’s visit and provide accommodation.

   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 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 present case, the applicant seeks the visa for a period of up to three months for the purpose of visiting her daughter, the sponsor. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.231.

11. In considering whether an 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)).

12. The visa application records that the applicant had previously travelled to Australia on a Tourist visa. It also states that a previous visa was cancelled and a visa application in 2019 was refused. However no further details are provided. The Tribunal notes that the delegate does not mention or raise as a concern in the decision record, any aspect of the applicant’s visa history. Nevertheless the Tribunal places some adverse weight on the applicant’s visa history.

13. The Tribunal must also consider whether the 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.

14. Although the evidence is limited, the Tribunal is satisfied that the applicant has sufficient funds and assets to provide for her during the proposed visit. She will stay with her son, the sponsor and his family, for the entire visit.

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

16. The Tribunal accepts that the applicant simply wishes to visit her son and his family including. It notes that the sponsor’s youngest child is under three years of age and the sponsor wishes to have the applicant visit to help care for the children.  

17. The applicant is a 56-year-old retiree. There is no information before the Tribunal suggesting that she is likely to engage in any study or training in Australia.

18. On balance, the Tribunal is satisfied that the applicant will comply with her visa conditions should a visa be granted to her.

19. For the above reasons the Tribunal is satisfied that the 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

20. 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.

    Stephen Conwell
    Member