Zhou (Migration)

[2021] AATA 3649

Zhou (Migration) [2021] AATA 3649 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xiquan Zhou

VISA APPLICANT:  Mrs Jiabing Zhou

CASE NUMBER:  1916323

HOME AFFAIRS REFERENCE(S):          BCC2019/2495379

MEMBER:Denise Connolly

DATE:7 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 07 September 2021 at 5:14pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – multiple visa applications – COVID19 border closures – non-compliance with conditions of a previous student visa – plans to conduct business in Australia – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 section 378 of the Migration Act 1958 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 11 June 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 11 May 2019. At the time the visa application was lodged, Class FA contained one Subclass, Subclass 600 (Visitor), with a number of different streams. The visa applicant sought 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, not satisfied that the visa applicant genuinely intends to stay in Australia temporarily, refused to grant the visa on the basis that she did not meet cl.600.211.  

5. The review applicant appeared before the Tribunal on 19 July 2021 to give evidence and present arguments. 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 by his registered migration agent. The representative also attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

   Background to review

8. According to information provided in the application for a visitor visa, the visa applicant is a thirty-four-year-old Chinese citizen from Zhejiang province. Her husband and two children reside in China and her parents reside in Australia. She is self-employed as a manager at a business located in Zhejiang province. She wished to travel to Australia with her children, Ziwei Wang, born [on date] and Weija Wang, born [on date] for up to 3 months, to visit her parents. She indicated that her visit will be self-funded, relying on ‘savings and ongoing income’. 

9. The visa applicant was granted a Student visa (Subclass 571) on 1 February 2005 and first arrived in Australia on 18 February 2005. She was granted 4 further student visas between June 2006 and July 2010 and departed and re-entered Australia on multiple occasions. She lodged an application for a Subclass 573 Student visa which was refused on 21 November 2012 and the decision was affirmed by the then Migration Review Tribunal in February 2014.

10. As confirmed by the review applicant at the hearing the visa applicant lodged an application for a [permanent] visa on 7 March 2014. That visa was refused by the Department on 19 August 2015. She lodged an application for review at the AAT but withdrew the review application after she departed Australia on 14 January 2016. At the hearing the review applicant confirmed the visa applicant has an ongoing application for a Business Innovation and Investment (Provisional) Visa (Subclass 188) lodged in May 2021.

11. The review applicant is the visa applicant’s father. He visited Australia on multiple occasions before he was granted a Business visa (Subclass 163) in 2013. He currently holds a State/Territory Sponsored Business Owner visa (Subclass 892). The visa applicant’s mother is a dependent on the review applicant’s Subclass 892 visa. 

12. The visa applicant’s daughter was born in [Australia]. She was granted a visitor visa on 11 December 2018 but did not travel to Australia and the visa was cancelled on 13 August 2019. She applied for a visitor visa on 4 December 2019, sponsored by the review applicant. Her application was refused on 25 January 2020. She has an ongoing review at the AAT in relation to the refusal decision.

13. The visa applicant’s son was born in [Australia]. He lodged a visitor visa application on 11 May 2019 intending to travel to Australia with the visa applicant. The visa was refused on 11 June 2019. He made an application for review at the AAT however, the AAT found that it had no jurisdiction to review the decision.

14. The review applicant submitted to the Department copies of untranslated documents, an ID card, a vehicle license, a notarial certificate, her Chinese passport, and an extract from a contract of sale for a property purchased by the review applicant and his wife, in Victoria.  He provided to the Tribunal a copy of the delegate’s decision record. The delegate stated she had taken into account the visa applicant’s migration history and compliance with previously held visas. She took into account evidence indicating the applicant and her husband are self-employed, and run a business registered in December 2018. She noted the evidence indicating RMB300,000 was recently deposited into a bank account but gave little weight to the evidence because it did not demonstrate regular income or a savings pattern. She was not satisfied there were strong employment or economic incentives to return to China at the end of the proposed stay. She was not satisfied the visa applicant genuinely intended to stay temporarily in Australia.

    Further evidence provided to the Tribunal

15. Prior to the hearing the review applicant provided to the Tribunal various documents including a statutory declaration by the review applicant dated 30 November 2019. He stated that his daughter and granddaughter intend to visit him and his wife in Australia and he will not let them stay for more than 3 months. He will also guarantee that they comply with all visa conditions. He was not aware of his daughter’s [permanent] visa application until 13 August 2019, when his granddaughter’s visitor visa was cancelled. His daughter had never intended to stay in Australia permanently by applying for a [permanent] visa.

16. The review applicant provided documents given to the Department in support of his granddaughter’s application for a visitor visa, including letters of support and statements dated 12 June 2019 and 2 December 2019 in which he provided information about why his daughter had applied for a [permanent] visa and her current circumstances. He stated that his daughter was ‘misled’ by a migration agent when she lodged an ‘inappropriate [permanent] visa application’. He stated his daughter and granddaughter have a genuine intention to stay in Australia on a temporary basis as his daughter is running her own business in China. She is the shareholder and director of a company which turned over 4 million yuan (about AUD $800,000). His daughter had invested 504,000 yuan in the company. His daughter and her husband have established a restaurant and spent about 600,000 yuan on renovations. She owns a car and a house in China and has spent money on renovations. His grandchildren are studying in China. He wants his daughter and grandchildren to visit him in Australia for a holiday, as he is unable to frequently travel to China due to work commitments. He is willing to pay a security bond to support his children’s intention to stay in Australia on a temporary basis. The review applicant provided letters of support from his psychologist and church, supporting his application to have his daughter and grandchildren visit him in Australia.  

17. The representative, Mr Sun, provided a submission in July 2021 outlining the migration history of the visa applicant and her children. The visa applicant’s daughter was granted a visitor visa in 2018 and arrangements were made for her to visit her grandparents in Australia, but the trip was cancelled due to illness. The visa was subsequently cancelled by the Department.

18. Mr Sun stated that the visa applicant did not comply with conditions on her student visa in 2011 due to the closure of the college, her pregnancy and postnatal depression. He provided a news article from 2009 in relation to the closure of four private colleges in Melbourne and Sydney which caused ‘surprise and shock’ to international students. He stated the visa applicant was misled into lodging a [permanent] visa application in 2014 and she withdrew the application and went back to China in 2016. In relation to her intention to comply with visa conditions, Mr Sun stated the visa applicant and her father are both successful businesspeople who have sufficient funds to support the visa applicant and her children on their trip to Australia. The visa applicant does not need to work in Australia and will take the children back to China after the holiday.  She and her husband have two successful businesses in China in which they have invested a substantial sum of money. The visa applicant has family living in China. She owns a Mercedes Benz and an apartment which she has renovated. She will comply with her visa conditions and has a genuine intention to visit Australia temporarily.

19. The Tribunal was provided with documents relating to the visa applicant’s previous [permanent] visa application, including an extract from the delegate’s decision record which states she had close ties with China and sought a temporary stay in Australia, and a notice of withdrawal of the AAT review application.

20. The representative provided evidence of the visa applicant’s businesses in China. These include translated copies of online reviews, photographs, a business license, an income summary statement in relation to her restaurant, and a profit and loss statement and share certificate in relation to the other business.

21. The representative provided a letter from the visa applicant’s daughter former kindergarten teacher, a family friend, who indicated she understood the visa applicant intends to visit Australia temporarily. The Tribunal also received further evidence regarding the visa applicant’s business in China, flight schedules for flights in June 2019 from China showing return tickets had been booked, evidence regarding the cancellation of the granddaughter’s visitor visa, and her illness preventing her travel.

22. The representative submitted translated copies of a lease agreement indicating the visa applicant entered into a five-year lease for a property in Wenzhou City, China, from 2018 to 2023, a property ownership certificate indicating she owns a property in Lucheng District, accompanied by photographs of renovations made to a house, and a translated copy of a vehicle license indicating that she owns a Mercedes Benz registered in China.

23. At the hearing the Tribunal discussed with the review applicant the requirements of the law. It asked the review applicant about the visa applicant’s current circumstances. The review applicant confirmed the visa applicant lives in Wenzhou City with her husband and children. She operates an eatery, Teak Cuisine, and owns a factory which produces lighters. He provided evidence after the hearing confirming the visa applicant runs the eatery.

24. [Details deleted]. The Tribunal raised its concern that the visa applicant may remain in Australia after her visitor visa has expired and seek [a permanent visa]. The review applicant stated she will not do this. He acknowledged she has applied for [permanent] in the past, in 2014, when she was involved in financial disputes with people in China. The Tribunal explained it may form the view, given she has applied for [permanent residence] in the past, she may seek to do so again. The review applicant stated the visa applicant’s financial circumstances are sound at the moment. Her eatery is doing well and so is her lighter factory. She has recently purchased property in China.

25. The Tribunal asked the review applicant if the visa applicant has applied, or intends to apply, for any other visa other than the visitor visa. The review applicant told the Tribunal that earlier this year the visa applicant has applied for a Subclass 188 visa[1]. The Tribunal explained that this visa application may lead it to form the view the visa applicant wants to live, work and remain in Australia for a long term, not a temporary stay, and she may seek to remain in Australia after her visitor visa expires, pending the processing of that visa application. The review applicant submitted that she would not do this. He stated in the past she made a [permanent] visa application on the basis of poor immigration advice from an unprofessional migration agent. However he has told his daughter that she must now do things properly. He indicated the Subclass 188 visa application may take up to 3 years. He indicated that when she applied for the Subclass 600 visa she did not intend to stay in Australia permanently. She understands she needs a permanent visa to remain her permanently. This is why she applied for the Subclass 188 visa.

    [1] Subclass 188 Business Innovation and Investment (Provisional) visa allows the holder to own and manage a business in Australia, conduct business and investment activity in Australia or undertake an entrepreneurial activity in Australia. >

    The Tribunal asked the review applicant about the applicant’s compliance with student visa conditions, noting the representative indicated she had not complied with visa conditions in the past. The review applicant stated the visa applicant first came to Australia in 2005 as the holder of a student visa. She was enrolled at Taylor College completing a Certificate III when the college went bankrupt. She enrolled in another school but in 2009 fell pregnant and was depressed and not in a good relationship so she stopped studying. His granddaughter was born [here]. The Tribunal asked why she did not return to her parents if she was not coping in Australia. The review applicant said he and his wife came to Australia to support her. The Tribunal asked the review applicant again if the visa applicant had complied with visa conditions. He said he was not sure about her compliance with visa conditions but he found out her student visa application had been refused, indicating this might have been because she had not previously complied with visa conditions.

26. The review applicant indicated the visa applicant returned to China 4 or 5 times while holding student visas. Her migration agent told her she had to return to Australia to make another visa application so she did. While she was in China the last time before she returned to Australia she worked in the review applicant’s company. She got involved in a business with a friend and they got into financial difficulties. She and her friend came back to Australia in 2014 and the visa applicant applied for [permanent residence] in March 2014. She did not study. She wanted to stay here because of the financial difficulties in China. She gave birth to her son in [Australia].

27. The Tribunal raised the issue of whether the visa applicant and her children will be able to travel to Australia given the border closure due to COVID. The review applicant indicated he is pursuing the review application because he became very distressed in 2019 when the visitor visa application was refused. He is worried about his daughter’s migration record. He wants to see his daughter and granddaughter. He is 59 and healthy.

28. The Tribunal asked the review applicant if he had any other evidence he wished to have taken into account. He indicated he is distressed because his granddaughter asks him why she cannot visit him. She tells him her friends are allowed to go anywhere. The Tribunal noted that, since March 2020, Australia’s border has been closed to tourists so, even if a visitor visa was granted, Chinese tourists have not been able to visit Australia. He acknowledged this.

29. The Tribunal asked why the Subclass 188 visa application was not mentioned in the written submissions made to the Tribunal in July 2021 when other submissions were made. The representative indicated their focus was on the visa applicant’s Subclass 600 intentions.

30. The representative made the following oral submissions. It will take a long time for the Subclass 188 visa application to be processed. He thought it would take about 3 years. [2]  However this processing time is irrelevant because, with respect to her Subclass 600 visa application, the visa applicant intends to remain in Australia for a short visit.  The visa applicant and her daughter just want to come to Australia for the school holidays.

    [2] The Department’s website indicates Subclass 188 visa applications are taking between 18 and 23 months to process.

31. The review applicant was provided with a copy of the hearing recording after the hearing. He then provided a written statement in which he stated the following.

    a.The review applicant did not answer his questions completely because he paused to allow the interpreter to interpret.

    b.The review applicant provided further information regarding the visa applicant’s snack bar.

    c.Regarding the Tribunal’s concerns about the visa applicant’s previous [permanent] visa application, the applicants promise she will not make a [permanent] visa application again in Australia. The visa applicant is in a good financial position and previous financial disputes have been resolved. He provided financial documentation about the visa applicant’s financial position.

    d.[Detail deleted]. [The review applicant] promises the visa applicant will not apply for [a permanent visa] in Australia. She has already applied for a Subclass 188 visa. Regarding the Tribunal’s concern that she will seek to remain in Australia while the Subclass 188 visa application is being processed, he stated they know the Subclass 600 visa allows her to stay here for only 3 months and she will then return to China. The visa applicant has strong ties to China and her business is doing well. She is currently not allowed to leave China. The review applicant is willing to pay a security deposit.

    e.The review applicant stated that when the visa applicant applied for the visitor visa in 2019 she had no plans to apply for the Subclass 188 visa. However as she met the requirements she made the application for that visa in May 2021. He understands it could take up to 3 years to process that visa application. He has other friends who visited Australia after lodging Subclass 163/188 visa applications. The visa applicant’s current intention is to visit the review applicant during the school holidays. Her situation is very different to when she applied for [a permanent visa] in the past.

    f.The review applicant has told his granddaughter that if the appeal is successful she can visit him during the school holidays. She told him her classmates travelled abroad before the pandemic and they ask her why she does not travel to see her grandparents. He wanted to clarify his oral evidence to ensure the Tribunal understands that he was not saying her friends travel during the pandemic, but that they had travelled prior to travel restrictions.

    g.The review applicant indicated telephone hearings with interpreters are not preferable. He indicated, if given the opportunity, he would have a face to face hearing.

    Assessment of the evidence

1. The Tribunal has considered whether the review applicant should be given the opportunity to have another in-person hearing. However it notes that at the end of the hearing it asked if he had any other evidence to give and he only raised concerns about his granddaughter’s expectations that she should be able to travel to visit him. It also notes the review applicant has had an opportunity to listen to the hearing recording and address any concerns in his written submission provided after the hearing. The Tribunal does not consider it necessary to clarify any of his evidence. It has no further questions to ask of the applicants. It is satisfied the review applicant has had a fair hearing and an opportunity to engage meaningfully at the hearing. In these circumstances it does not consider it necessary to postpone making its decision until such time as the Tribunal is in a position to invite the review applicant to attend an in-person hearing.

2. In the present case, the visa applicant has claimed she seeks the visa for the purposes of visiting her parents with her children. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222. Her proposed stay is up to 3 months.

3. 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.

4. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

5. The Tribunal notes the representative has submitted that the visa applicant did not comply with conditions on her last held student visa in 2011, granted in July 2010, due to the closure of the college, her pregnancy and postnatal depression. The Tribunal takes this explanation into account but notes from information provided by the review applicant that, rather than return to China, the visa applicant applied for [permanent residence] in Australia. The Tribunal has considered the explanation provided by the review applicant, that she had financial difficulties in China and she received poor immigration advice. It has concerns however that the visa applicant made this visa application in March 2014 [detail deleted] as a means of achieving her preferred migration outcome, to remain in Australia until she was ready to depart, when she withdrew the application and went back to China nearly 2 years later in 2016. The Tribunal is also concerned that, while the representative admitted to the Tribunal in pre hearing submissions that the visa applicant had not complied with visa conditions imposed on her last held student visa, the review applicant was vague in his oral evidence about whether she had previously complied with those conditions, although he ultimately admitted that a subsequent student visa application might have been refused because she had not complied with visa conditions. The Tribunal is not satisfied that the visa applicant complied substantially with the conditions of her last substantive visa. There is no evidence before the Tribunal to indicate she has not complied with conditions imposed on any bridging visa she held.

6. 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:

   ·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.

7. The Tribunal is not aware that the visa applicant has any intention of working or studying in Australia. It accepts the applicants have sufficient funds to support the visa applicant’s stay in Australia. It takes into account the review applicant’s assertions that she will not make another [permanent] visa application. The Tribunal notes she withdrew her [permanent] visa application and the review applicant now claims she has no financial difficulties. [Details deleted]. The condition about which the Tribunal has the most concern is condition 8531. It is concerned that the visa applicant may seek to remain in Australia after the end of her permitted stay. This concern arises from her past non-compliance with visa conditions, her [permanent] visa application in 2014 which she withdrew in 2016 when she was ready to return to China and her Subclass 188 visa application in May 2021 indicating a desire to live and conduct business in Australia.    

8. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The review applicant has told the Tribunal that the visa applicant, with her daughter, seeks to travel to Australia in the school holidays to visit because he is unable to visit them in China. The visa applicant indicated in her visa application that she intended to visit Australia for about 3 months. At the time she made the visitor visa application she had no intention of applying for a Subclass 188 visa, however, as she met the requirements she made the application for that visa in May 2021. The review applicant has submitted however that, even though she seeks to be granted a Subclass 188 visa which will allow her to live and conduct business in Australia, she will return to China after the 3 month period has ended. As discussed with the review applicant, the Tribunal has concerns about whether the visa applicant will return to China at the end of a 3 month period. It takes into account that she, with her husband, runs successful businesses in China, an eatery and a lighter factory, however her willingness and desire to visit Australia for 3 months demonstrates that those businesses will be able to continue in her absence. It also notes she has property interests. However it is of the view the Subclass 188 visa application indicates the visa applicant has a strong desire to live and conduct business in Australia and it is not satisfied her property and business interests will provide her with sufficient incentive to return to China at the end of the visa period.

9. The Tribunal has very carefully weighed all the information provided.  Overall the Tribunal accepts that the visa applicant has business interests, property, a Mercedes Benz vehicle, and family in China. These factors provide her with some incentive to return to China at the end of a permitted stay. It takes into account the review applicant’s assertions that his daughter will comply with visa conditions and the supporting letters from the psychologist, kindergarten teacher and the church. There is no evidence to indicate she intends to work or study her during the 3 month permitted stay but the visa applicant’s Subclass 188 visa application clearly demonstrates she does wish to live and run her business in Australia. The Tribunal is also concerned about her history of non-compliance with the conditions imposed on her last held student visa, as disclosed by the representative, and her [permanent] visa application which appears to have been made to allow her to remain in Australia until she was ready to return to China in 2016. The Tribunal has taken into account the visa applicant's personal profile and the circumstances of her family in Australia where her father is busy running his business. It takes into account his willingness to provide a security bond, and that he visited Australia on numerous occasions and complied with the conditions of his visas before ultimately being granted his business visa. However, it is not satisfied the positive factors are sufficient to persuade the Tribunal that the visa applicant, given her previous history of seeking to stay in Australia, and her current Subclass 188 visa application, genuinely intends to stay temporarily for the purpose for which the visa is granted.

10. For the above reasons 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

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

    Denise Connolly
    Member