The applicant for the visa (the visa applicant) is a citizen of China and is 35 years old. The applicant for review (the review applicant) is the visa applicant's mother and she became a Permanent Resident of Australia, when she married her current husband.
This is an application for review of a decision made by a delegate of the Minister on 11 December 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 6 December 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.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the visa applicant did not show sufficient evidence of strong employment, financial situation and family ties to demonstrate he would return to China at the end of his stay.
The review applicant and the visa applicant appeared before the Tribunal on 7 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Latsamy Phimmabong, the review applicant's husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The review applicant was represented in relation to the review but the representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and thematter be remitted for reconsideration.
[2]
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting his mother and for tourism. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
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)).
There is no evidence before the Tribunal of non-compliance with any previously held visa. The visa applicant has never travelled to Australia and has not held an Australian visa previously. Evidence was given by both applicants that he travelled to Thailand and Laos with his wife and children in 2023 for a 11-12 day holiday with his mother and her husband.
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.
In considering whether the visa applicant would comply with these conditions, the Tribunal accepts that the visa applicant has been employed full-time as a supervisor at the Hangzhou Jiuxuan Clothing Co Ltd since 2021 and has provided evidence of his employment, his remuneration of RMB 9,500 per month (pre tax) (AUD 2,030) and approval from his employer for two weeks leave to travel to Australia. He told the Tribunal he is responsible for E-commerce operations in the company. His wife also works as the manager at a pharmaceutical company. The Tribunal also took into account a certified copy of a Bank Statement from the Agricultural Bank of China provided by the visa applicant, showing a Balance of RMB 35951.89 for the period 22 June 2024 - 22 June 2025, and monthly salary payments for most of that 12 month period, consistent with the evidence provided by his employer.
The Tribunal also discussed with both applicants the importance of complying with the visa conditions as well as the purpose and duration of the visit. The visa applicant stated the purpose of the visit is to see his mother and to visit some sights as a tourist, such as the Sydney Opera House, the Gold Coast and the Great Barrier Reef, as he has not visited Australia before and that he intends to come for two weeks. The Tribunal accepts, based on oral evidence provided by both applicants, that the visa applicant does not intend to work or study in Australia and will return to China at the end of his permitted stay in Australia. The Tribunal had no evidence before it that the visa applicant would not comply with the above conditions.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The visa applicant gave evidence he proposes to spend time with his mother and visit some tourist sights. He will travel on his own and be away from his job, wife and two children for two weeks. The Tribunal took into account the visa application and oral evidence provided by both applicants about the visa applicant's family ties to Australia and China respectively. In relation to the visa applicant's family ties to Australia, the Tribunal accepts that only his mother (the review applicant) and her (second) husband live in Australia. In relation to the visa applicant's family ties to China, the Tribunal accepts that the visa applicant has immediate family in China including his wife, two children aged 8 and 2 and his elderly father. In addition the Tribunal is satisfied that the visa applicant has secure employment, owns a property valued at RMB 1,500,000 (AUD 320,000) in his home town, and has lived in the same stable rental accommodation with his family since he started his job in Hangzou in 2021, which act as incentives for him to return to China at the end of his stay. The review applicant also submitted that the visa applicant is her only child, she separated from her first husband a long time ago and because her son grew up without his father, he takes his own responsibility to his young children very seriously and does not want to be separated from them. The visa applicant also stated he is very attached to his young children and would not leave them for long. Further, his wife won't allow him to stay away longer.
Based on oral and written evidence provided by the visa applicant about his employment and financial situation, the Tribunal accepts that the visa applicant has the financial resources to pay for his airfare and will also be able to access the support of the review applicant during the proposed visit. He stated he intends to bring AUD2000 with him to fund his visit.
The Tribunal also accepts that the review applicant has the capacity to financially assist the visa applicant during any proposed visit. The review applicant gave evidence that she earns $1300 - $1500 per week, (based on an hourly rate of $28), working an average of 10 hours a day, 5- 6 days a week as a cleaner. She was not able to provide the name of her Chinese employer in English but stated she is casually employed and also has savings of $50,000 - $60,000. Her husband gave evidence that he works at the Paramatta Museum in Sydney as a painter and earns $2500 per week. They live together with her husband's daughter, aged 22. The Tribunal accepts that the visa applicant will be accommodated by the review applicant, who owns her own home, valued at $1,300,000, during his visit and that she will also pay for some of his travel itinerary.
The Tribunal has weighed the various factors and evidence to assess whether the visa applicant intends to stay temporarily in Australia and considers that overall, his employment and immediate family ties in China suggest he will return to China at the end of the visit and will comply with the visa conditions
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.
[3]
The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order 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.
[4]
Representative for the Applicant: Mr Stanley Chan (MARN: 0430097)