Zhou (Migration)

[2022] AATA 181

Zhou (Migration) [2022] AATA 181 (28 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chuchu Zhou

VISA APPLICANT:  Ms Guilan Chu

CASE NUMBER:  1930706

HOME AFFAIRS REFERENCE(S):          BCC2019/5039461

MEMBER:Melissa McAdam

DATE:28 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 January 2022 at 10:23am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – Contributory Parent visa application – applicant’s limited family ties to China – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611; Schedule 8 Condition 8201

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 18 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 visa applicant applied for the visa on 8 October 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 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 following is a summary of the information the visa applicant provided in her visa application:

   a.She is a 51 year old citizen of China

   b.She is divorced. She lives in Haian County in Jiangsu Sheng province.  She has an adult son in China. Her other son, the review applicant, lives in Australia and is an Australian Permanent Resident. 

   c.She wants to visit her son in Australia for up to three months. 

   d.She has been employed as a service worker at a beauty centre since March 2018.

   e.She will fund her own travel to Australia and be supported by the review applicant.

   f.She has previously been refused a Visitor visa to Australia.

5. The visa applicant provided copies of the following documents with her visa application:

   -Her Chinese passport.

   -An Enterprise Business Licence for the visa applicant’s business in Gaoxin in Haian County, China.

   -A Haian County Employee Medical Insurance Certificate in the visa applicant’s name.

   -An invitation letter from the review applicant.

   -The visa applicant’s bank account Certificate of Deposit.

   -Her Chinese Resident ID Card.

   -Her Chinese Permanent Resident Register Card.

   -Her elder son’s Chinese Permanent Resident Register Card.

   -A letter from her employer certifying her employment.

   -A letter from the visa applicant explaining that her elder son lives with her in a home she bought for him.  He is unmarried so she still looks after him. Her younger son, the review applicant, went to Australia with the visa applicant’s ex-husband.  He is studying in Australia and lives with his father.  He has submitted a subclass 143 Contributory Parent visa on behalf of the visa applicant.  The waiting period for the visa is more than 4 years and he hopes the visa applicant can visit him in the meantime.  She has been refused a Visitor visa twice because of her financial circumstances. She believes her income is sufficient for her daily expenses.  She has a fixed term deposit which will cover the expenses of her travel to Australia.  She is eligible for the subclass 143 visa and meets the criteria so it would not be logical for her to overstay in Australia when she can get permanent residence through the Contributory Parent visa.  She has no house, car, job or friends in Australia and she does not want to live illegally in Australia.  She is not a rich person but her life is stable in China.  In her divorce settlement the house was awarded to her but the change of title is yet to be done.  Her life, job, car, home and friends are all in China.

   -A Property Ownership Certificate in the visa applicant’s name.

   -A photograph of the visa applicant’s car.

   -Court issued divorce agreement orders showing that the marital home becomes the visa applicant’s property.

   -The visa applicant’s Bank Account statement showing regular salary deposits.

   -The review applicant’s NSW High School ID card.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she found that the visa applicant had not demonstrated sufficiently strong employment, economic, family or other commitments in China that would be sufficient incentive for her to return to China.

   Information to the Tribunal

   Hearing

7. The review applicant appeared before the Tribunal on 7 December 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.

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

   a.She would still like to visit Australia but she is not well at the moment.  She has not seen her son for a long time. She misses him terribly.  She has heart conditions and a brain stroke and spends the majority of time in and out of hospital. She is currently in hospital having some intravenous injections.  She feels able to participate in the hearing. 

   b.She last saw her son over two years ago.  She fears she will not be able to see him again.

   c.She has never been to Australia. She is divorced from her ex-husband, the review applicant’s father.  They only have contact to discuss their eldest son.

   d.If she visits Australia she will stay somewhere near her son.  She will not stay too long.

   e.She does not know anything about her Contributory Parent visa application and was not aware of it.

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

   a.He knows about his mother’s well-being. Not long ago she became unwell and they would speak together by video.  She is not particularly strong and has headaches and pains in parts of her body.  So she takes medication and has frequent consultations with doctors. She had a cerebral stroke but she is in the initial stage of it.  She also started to have growths in her body.  He thinks she is well enough to travel to Australia but she will need to bring her medication.

   b.His mother divorced his father many years ago.  His father is currently in a new relationship but has not remarried. 

   c.The review applicant does not live with his father in Australia.  He lives with his wife and young child.

   d.His mother has not previously visited Australia.

   e.The review applicant does not know anything about a subclass 143 Contributory Parent visa application by his mother.  The Tribunal put to the review applicant that the subclass 143 application had been referred to in his mother’s Visitor visa application.  The review applicant had no knowledge about this.  The Tribunal stated it would write to him after the hearing to give him the opportunity to investigate the matter further and provide a response to the Tribunal.  The applicant stated that he understood.

10. On 8 December 2021 the Tribunal wrote to the review applicant to invite him to provide information as to why his mother referred to a subclass 143 Contributory Parent visa application in her written statement provided with her Visitor visa application; and why he and she both stated at hearing that they knew nothing about such an application.  The Tribunal asked him to provide the information by 22 December 2021. 

11. The Tribunal received no written response from the review applicant so on 25 January 2022 a Tribunal officer telephoned the review applicant to ask if he intended to provide a written response.  The applicant confirmed he had received the Tribunal’s letter and that he understood its contents but that he has nothing to say about it. He stated that he understood the Tribunal would make a decision on the information before it and that he has nothing more to say.

12. To date no further information or materials have been received from the review applicant or the visa applicant.

    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. In the present case, the visa applicant seeks the visa for the purposes of visiting her son in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

15. 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)).

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

17. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

18. The Tribunal accepts that the visa applicant will fund her own stay in Australia.  She has submitted her bank account statement and appears to have 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.

19. 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.

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

21. The Tribunal accepts that the visa applicant lives with her elder son in China.  The Tribunal considers that the presence of her elder son in China is inducement for the visa applicant to return there.

22. The visa applicant gave evidence that she is not in good health and requires frequent time in hospital.  The Tribunal accepts this would inevitably disrupt her employment.  In such unfortunate circumstances the visa applicant’s employment would not currently be a motivating factor for the visa applicant to return to China if she visits Australia.

23. Apart from the visa applicant’s elder son, there was little evidence of strong commitments or connections to China to induce the visa applicant to return there.  The Tribunal has significant concerns regarding the lack of forthcoming explanation for the visa applicant and the review applicant’s claimed lack of knowledge of a Subclass 143 visa application in the visa applicant’s name, sponsored by the review applicant, despite it being clearly and expressly referred to in her Visitor visa application.  The Tribunal has made several attempts to seek clarification from the applicants but nothing has been forthcoming.  The Tribunal is left with the view that the applicants are not willing to provide accurate information to the Tribunal and that they are concealing information they believe may be adverse to the visa applicant’s application. The Tribunal is unable to know why or what this is.  However it points to a lack of full disclosure which undermines the genuineness of the visa applicant’s intentions in applying for a Visitor visa.

24. In view of the lack of evidence of strong connections to China and the lack of disclosure about the visa applicant’s knowledge and intentions in applying for a Contributory visa application, 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, and finds that the requirements of cl 600.211 are not met.

    DECISION

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

    Melissa McAdam
    Member