Zheng (Migration)

[2024] AATA 4285

Zheng (Migration) [2024] AATA 4285 (12 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Huili Zheng

VISA APPLICANT:  Mr Jiashun Zheng

REPRESENTATIVE:  Mr Lan Liu (MARN: 0635036)

CASE NUMBER:  2303842

HOME AFFAIRS REFERENCE(S):          BCC2023/593490

MEMBER:Justin Meyer

DATE:12 June 2024

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 12 June 2024 at 2:58pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting daughter (sponsor, citizen) and wife (permanent resident) – genuine temporary entrant and compliance with conditions – wife’s surgery in home country before returning to Australia – applicant’s properties, superannuation, stocks and savings, government medical benefits and social network – possibility of migrating permanently later – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

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 28 February 2023 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 3 February 2023. 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 did not meet cl 600.211 because the delegate was not satisfied that he genuinely intend to stay temporarily in Australia for the purpose stated, and therefore found that he did not satisfy Subclause 600.211 of the Regulations.

5. The review applicant appeared before the Tribunal on 15 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jiashun Zheng, the visa applicant and Ms Muping Xu. 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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for these purposes (per the applicant’s submission of 8 May 2024):

   [The visa applicant’s] wife Mrs Muping Xu ([Date of birth]) was diagnosed with breast cancer in January 2023, with surgery scheduled for February or March of the same year.

   She was expected to have surgery in February or March 2023. Breast cancer is a complex and serious disease, for normal patients, having close family members around during treatment is crucial.
   Initially, [the visa applicant] planned to visit Australia and stay with his wife during surgery. However, due to the visa refusal, [the visa applicant’s] wife had to return to China for her breast surgery and subsequent chemotherapy. Now, she plans to return to Australia later this year for future medical treatment and recovery.

   Mrs Xu will live with their daughter, [the review applicant (sponsor)], an Australian citizen in Australia. Their daughter has her own business in Australia, and she is unable to stay in China for an extended period. As a result, Mrs Xu decided to return to Australia and live with her daughter.  [The visa applicant], as a responsible husband, plans to accompany his wife on the way to Australia, support her settlement, visit the country, and then return to China.

   During [the visa applicant’s] stay in Australia, he would live with his daughter and his wife. He may consider migrating to Australia in the future. [The visa applicant] is aware that applying for permanent residency takes time and money, therefore he would rather visit the country first to see if he really wants to migrate and make his decision later. We have to emphasise that if [the visa applicant] intends to migrate to Australia permanently, he has the option to apply for either a partner visa or a parent visa, rather than applying for a visitor visa and potentially overstaying in the country.

10. The above is a purpose for which a visa in the Tourist stream may be granted (to visit specified family or visit for non-business or non-medical purposes): cl 600.221 and cl 600.222. It is to visit “an Australian citizen or permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the applicant” (child and spouse in this case).

11. 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)).

12. There is no evidence of non-compliance with conditions of previously held visas.

13. 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.

14. There is no evidence to the Tribunal that the visa applicant will work in Australia, engage in study or training in Australia, seek a substantive visa, or remain in Australia after the end of the permitted stay.

15. The Tribunal had a significant discussion with the parties about the prospect of the visa applicant returning to China.

16. The visa applicant is a 57-year-old man.

17. He sent to the Tribunal the following documents in support of his case:

    ·A written submission.

    ·Identity documents.

    ·Chinese bank statements.

    ·Certificate of asset.

    ·Real estate ownership documents from China.

    ·Medical certificate confirming wife’s breast cancer condition of January 2023, results mammogram.

    ·Daughters’ Chinese birth certificate.

    ·Daughters’ passport.

    ·Daughters’ banks statements in Australia of May 2024.

    ·Parties’ Chinese marriage certificate, registered December 2021.

    ·Visa applicant’s passport details.

    ·Written submission to department of January 2023.

18. The submission as paraphrased by the Tribunal makes these relevant points:

    Financial Circumstances

    The refusal letter states that, “I have considered your employment and financial status and I note that you have not demonstrated any strong financial or other ties to your home country.” However, contrary to this concern, Mr Zheng possessed sufficient financial resources to support himself during his planned stay in Australia.

    Mr Zheng owns three properties in China, one of which he lives in while the other two are rented out. He retired in May 2023 and each month he receives around RMB 10,000 as superannuation, subsidy and bonus. In addition to his stable monthly superannuation, he also invested in stock, valuing approximately 260,000RMB, along with other savings.

    Furthermore, he has been contributing to the housing provident fund since 1997.
    As a result, Mr. Zheng is always in a secure economic position, with property ownership, stable income, rental income, and savings, enabling him to lead a comfortable life in China without the need for illegal work in Australia.

    Incentive to return to home country

    The refusal letter states that, “you have not provided evidence of commitments in your home country that could be considered as sufficient incentives to return at the end of your proposed stay in Australia.” However, contrary to this concern, Mr Zheng has strong incentive to return to China.

    Before retiring, Mr. Zheng dedicated over four decades of his life to the Fujian Minqing Association of Supply and Marketing Cooperatives since July 1981. China’s supply and marketing cooperatives, established in the 1950s, were government-initiated entities tasked with distributing products and commodities. His retirement from a government agency in China affords him certain advantages over retirees from private organisations, including higher superannuation benefits and more comprehensive medical insurance coverage.

    Furthermore, his social connections and support network in China are robust, consisting of cherished friendships cultivated over the years.

    In Australia, Mr Zheng’s situation is completely different. With no property or savings, he lacks the financial security he enjoyed in China. He could not use his medical benefits.

    Moreover, the high living expenses, his limited proficiency in English, and his lack of social acquaintances outside his immediate family made long-term residency on a temporary visa, bridge visa or unlawfully in Australia less appealing.

    Purpose of travel

    Mr Zheng’s wife Mrs Muping Xu (Date of birth) was diagnosed with breast cancer in January 2023, with surgery scheduled for February or March of the same year. She was expected to have surgery in February or March 2023. Breast cancer is a complex and serious disease, for normal patients, having close family members around during treatment is crucial. Initially, Mr Zheng planned to visit Australia and stay with his wife during surgery. However, due to the visa refusal, Mr. Zheng's wife had to return to China for her breast surgery and subsequent chemotherapy. Now, she plans to return to Australia later this year for future medical treatment and recovery. Mrs Xu will live with their daughter, Ms Huili Zheng, an Australian citizen in Australia. Their daughter has her own business in Australia, and she is
    unable to stay in China for an extended period. As a result, Mrs Xu decided to return to Australia and live with her daughter. Mr. Zheng, as a responsible husband, plans to accompany his wife on the way to Australia, support her settlement, visit the country, and then return to China.

    During Mr Zheng’s stay in Australia, he would live with his daughter and his wife. He may consider migrating to Australia in the future. Mr Zheng is aware that applying for permanent residency takes time and money, therefore he would rather visit the country first to see if he really wants to migrate and make his decision later. We have to emphasise that if Mr. Zheng intends to migrate to Australia permanently, he has the option to apply for either a partner visa or a parent visa, rather than applying for a visitor visa and potentially overstaying in the country.

    Compelling and Compassionate

    This case is not merely a matter of paperwork; it is a poignant tale of love, compassion, and unwavering devotion. Mrs. Xu, the wife of the visa applicant, an Australian permanent resident, faced the harrowing battle of breast cancer last year, a journey fraught with physical and emotional challenges. In her weakest moments, she looked forward for the comforting presence of her husband by her side during her surgery and treatment in Australia. Yet, the visa refusal brought significant physical and emotional hardship to her, separating them during a time when their bond was needed most. Imagine the suffering of a cancer patient enduring long-distance flights to China for surgery and follow-up treatments, surrounded by the scare of uncertainty of her health. Fortunately, the surgery was successful
    and now she only needs to take medicine regularly to manage her condition. As Mrs Xu intends to reside in Australia, Mr Zheng's unwavering commitment to accompany her for the travel and settlement is undeniable. It is a responsibility born not of obligation but of profound love and duty. In reconsidering Mr. Zheng's visa application, please take his family into consideration so as not to have adverse consequences on Australian permanent residents and citizens.

    Conclusion

    This case is not only related to the visa applicant, but an Australian family struggling in fighting against cancer. Mr Jiashun Zheng is a genuine visitor to Australia considering his stable financial circumstances, and purpose of travel. For the above reason, it is improper to assume that he is not a genuine visitor to Australia.

    Evidence in the hearing and analysis

19. The oral evidence of the parties was consistent with their written claims.

20. The visa applicant said that he put the application because his wife had received a breast cancer diagnosis, and his daughter lives and works in Australia. He had never been to Australia. His wife is an Australian permanent resident and travels back and forth between China and Australia, staying with their daughter when she is in Sydney.

21. The ties he had in China would make him return after his visit, he said. His wife needs medical treatment and has been made weak by the treatment.

22. Her initial surgery was in China and she was not entirely happy with what was done for her. She felt a lot of pain, and that is why she wanted the rest of her care done in Australia. She paid for it privately.

23. She had selected her doctor in Australia.

24. As a public servant the visa applicant’s benefits were “quite good”. He did not believe he could access this pension if he remained in Australia. The Tribunal notes that Australia does not have a reciprocal pension / social security rights agreement with China, and this would tend to support the visa applicant’s contention.

25. The visa applicant said he was used to life in China. His friends and relatives were here. Although his wife has travelled back and forth to Australia from China over the years, he has been less able and interested to do so. In context this appeared plausible to the Tribunal. He simply wants to be in Australia during his wife’s treatment to support her. There is nothing before the Tribunal that contradicts this notion.

26. He has considerable sums of money and assets in China he had stock of AUD200,00 value for example.

27. I accept that the intention of the trip to Australia is to visit family and support his wife during a difficult medical episode.

28. There is no evidence of any visa non-compliance from the visa applicant or indeed anyone in the family. There is no evidence of a desire for any other visa, work or study in Australia or a lack of interest in being present for family in China.

29. There is no substantial evidence before me to support a contention that the visa applicant will not genuinely intend to stay temporarily in Australia.

30. The Tribunal has also considered all other relevant matters (cl 600.211(c)). While incomes are higher on average in Australia, it is not apparent that this is a motivator for this visa applicant.

31. 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

32. 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.

    Justin Meyer
    Member