Zhu (Migration)

[2019] AATA 1813

Zhu (Migration) [2019] AATA 1813 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms He Zhu

VISA APPLICANT:  Ms Ping Zhang

CASE NUMBER:  1732078

DIBP REFERENCE(S):  BCC2017/4513126

MEMBER:Ian Garnham

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 March 2019 at 2:18 pm (VIC time)

DATE OF WRITTEN RECORD:                28 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 28 March 2019 at 4:30pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –Tourist stream – visiting family members –non genuine intention to stay temporarily –adverse family migration history– past non-compliant behaviour – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 December 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 14 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

   ORAL DECISION OF MEMBER GARNHAM

3. MEMBER: This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 December 2017. The decision was to refuse to grant the visa applicant a visitor class FA visa under section 65 of the Migration Act.

4. The visa applicant applied for the visa on 28 November 2017.  At the time the visa application was lodged class FA contained one subclass, subclass 600 visitor visa, which has four streams.  In this case the applicant applied for the visa seeking to satisfy the primary criteria in the tourist stream.

5. The criteria for subclass 600 [visa] are set out in Part 600 of Schedule 2 to the Migration Regulations. And relevantly to this case they include clause 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.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 600.211 because they were not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

7. The review applicant appeared before the tribunal on 14 March 2019 to give evidence and present arguments.  And the tribunal also received oral evidence from the visa applicant but I point out at this stage this is the mother of the review applicant.  And the visa applicant gave evidence by conference telephone from China.

8. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages and the review applicant was represented in relation to the review and the representative attended the tribunal hearing.

   Claims and Evidence

9. Moving onto the consideration of claims and evidence. The issue in this case is whether clause 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 any previous visas or any subsequent bridging visas held by the applicant were 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 visa applicant claims to seek the visa for the purpose of visiting their daughter and her family.  And I point out at this stage that the daughter, the review applicant, came to Australia in 2003 and married in 2009 and has over the period 2010 until 2016 has three children, one born in 2010, one in born 2012 and one born in 2016.

11. That being the case the tribunal is satisfied that this is the purpose for which a visa in the tourist stream may be granted.  In going on and considering whether the 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 any [previous] substantive visas held or any subsequent bridging visa.

    cl.600.211(a):

12. As far as the tribunal is aware other than a temporary visa to depart Australia the visa applicant has not held an Australian visa or a substantive visa or a bridging visa of any type.  As the tribunal understands, and as was agreed at hearing, she has been present in Australia and her presence within could be described as grossly non-compliant behaviour.

13. Firstly, in respect of the visa and review applicant's family, the visa applicant's ex-husband came to Australia on 4 June 2008.  And the visa applicant advised the tribunal that whilst she was in China she had a previous visitor visa refused in her own name.  She then decided, and according to her evidence it was her decision, to use her sister's visa and her sister's passport to come to Australia in 2000.  The visa applicant then applied for a further visa under her sister's identity in 2002, which was refused.  She then remained in Australia unlawfully until finally departing in August 2014.

14. So those are the [relevant] background facts regarding the visa applicant's previous visit to Australia that the tribunal must consider in this application.

    cl.600.211(b):

15. Secondly, the tribunal is required to consider whether the visa applicant would intend to comply with the conditions to which the subclass 600 visa would be subject; this is subclause 600.211(b).  And the conditions to which the visa in the circumstances of this case would be subject may include Condition 8101, that she must not work in Australia.  Condition 8201, that she must not engage in study or training in Australia for more than three months.  Condition 8503, that she is not entitled to a substantive visa other than a protection visa while remaining in Australia.  And Condition 8531, that she must not remain in Australia at the end of the permitted stay.

16. Dealing with each of these in turn, condition 8101 with respect to working in Australia, the visa applicant admitted to the tribunal in her evidence that when she first arrived in Australia she did odd jobs for some financial remuneration and also that her husband or ex-husband provided her with funds and later on when her daughter and son were working they also provided her with funds.  So she did admit to doing some work whilst unlawfully residing in Australia.  And on this basis would present some risk if she was required to work to - well, of, in fact, doing so based on her past behaviour.

17. With respect to study or training in Australia I note the visa applicant is relatively young at 56 years of age.  She advised the tribunal and has advised the tribunal that she is seeking a permanent visa, which I will discuss later.  And she advised the tribunal that her role in coming to Australia permanently and I presume also a role, if she was to come here as a temporary tourist, is to care for her grandchildren who I have mentioned earlier.  The review applicant being her only child and [therefore] her only grandchildren and I understand in Chinese culture that this is an important role for a grandparent to take.  I consider it highly unlikely that she would seek to study in Australia but would devote herself to the care of her grandchildren.

18. Condition 8503, is that she is not entitled to a substantive visa.  And Condition 8531, that she must not remain in Australia at the end of the permitted stay are best addressed by considering the repentant nature of the review applicant and visa applicant's evidence in that they have stated that they knew the visa applicant had done the wrong thing.  And that on this basis they claim it would be unlikely that she would do so again.

19. However, as I say, the [previous conduct] was grossly non-compliant behaviour to remain unlawfully and even more importantly to use a false identity to gain entry to the country.  It provides me with very little faith that the visa applicant would necessarily be compliant with first and foremost, [the Conditions of her visa]. 

20. However, I do note the repentant comments of both the visa applicant and the review applicant at today's hearing.  But I also note at the same time that some of this evidence was self-serving in that the review applicant advised the tribunal that the initial idea to do this [adopt her sister’s identity] was part of a family plan to come to Australia and it was the migration agent's idea to create the false identity or to use the false identity for the visa applicant to get to Australia.  And [in contrast] the visa applicant put in very clear terms that that was not true, it was all her idea, and I accept that to be the case based on her evidence.  So I note there that some of the evidence has been self-serving before me and this reduces my faith in the applicant's ability to [now] comply with the laws.

    cl.600.211(c):

21. Finally turning to clause 600.211(c) I am required to consider all other relevant matters. And in this case I consider that the visa applicant gave evidence that she returned to China partially to be with her mother and that she did this voluntarily and chose to do this. She said that she did this because her daughter no longer needed assistance. I point out at this stage her daughter is 29 years old with two children and her same daughter she had left in the care of grandparents in China for three years before the review applicant was able to come here.

22. So I note some inconsistency there in relation to the family with respect to her family ties in China of which I understand she has one brother and two sisters; [she] also has a retirement fund.  And she advised the tribunal that she has a good lifestyle in China as well.  Opposed to that is the obviously strong push of having her daughter and her three grandchildren in [Australia] and her willingness to have her here to live with them to assist in the care of the children no doubt and I acknowledge this to be a valid and genuine wish of the parties.

23. And to this end I note and have been advised that a permanent Contributory Parent visa subclass 8187 application has been made in April 2018.  And I consider in all the circumstances this is the proper forum for the gross non‑compliant conduct or unlawful conduct of the visa applicant in the past.  I consider this is the forum where that information should be considered in more detail.  The visa applicant quite clearly gave evidence to the tribunal that it was her idea to conduct this fraud initially.  She also said to the tribunal that it was a step by step decision for the family to come Australia, which seems to agree with the facts of them meeting here.  Whereas the review applicant said it was preconceived plan.

24. Given her age I think it is less likely that the review applicant's evidence is true in that regard.  But whatever the case, whatever the case, it is grossly deceptive behaviour that has been used and a flagrant abuse of Australia's migration laws. 

25. And for these reasons I am not satisfied that the visa applicant would comply with the conditions or that she would genuinely intend to stay temporarily if things did not go her way. And for this reason I am not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted and therefore I find that the requirements of clause 600.211 are not met.

26. Therefore, the formal decision of the tribunal is as follows, the tribunal affirms the decision not to grant the visa applicant a visitor class FA visa.

    END OF ORAL DECISION

    DECISION

27. The Tribunal affirms the decision under review.

    Ian Garnham
    Member