1606072 (Migration)

[2016] AATA 4801

1606072 (Migration) [2016] AATA 4801 (1 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tinkip Lilian

VISA APPLICANT:  Ms Mang Hlei Zing

CASE NUMBER:  1606072

DIBP REFERENCE(S):  002458

MEMBER:Di Hubble

DATE:1 December 2016

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 01 December 2016 at 12:23pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) – Visa applicant has
active and busy life in Burma – Runs own business – Draws Burmese pension - Favourable security situation in Chin State – More incentives to return than stay – Other family member returned to Burma within visa period

LEGISLATION

Migration Act 1958, Schedule 2 Migration Regulations 1994, cl.600.211

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 Immigration on 29 February 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 12 January 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (the Regulations).

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 the visa applicant is a genuine applicant for a stay in Australia for the purpose the visa is intended.

5. The review applicant, who is the visa applicant’s son, sought review of the delegate’s decision on 29 April 2016.

6. The review applicant appeared before the Tribunal on 9 November 2016 to give evidence and present arguments. 

7. The Tribunal found the review applicant to be a forthright, credible witness who gave evidence to the effect that:

   ·His mother, who is a widow, lives in Chin State in Burma.  She has 2 children, himself included, plus a friend’s daughter, Sui Za Sin, who came to live with his family when she was 9 or 10 years old and so she is like his sister.  Both his sister and Sui Za Sin live in the USA, having done so since 2010 or 2011;

   ·His mother lives with her brother and his wife in the family home they grew up in, which they inherited from their parents.  It’s fairly large, so they have separate rooms and separate kitchens.  However, they see each other every day.  They also rent out a few rooms to other people, the income from which they share;

   ·His mother has 2 siblings here, 1 in Sydney and 1 in Melbourne.  She has 2 siblings in the USA and 1 lives in Falam Town (in Burma) with her.  His mother also has lots of cousins in Burma – her grandfather had 3 wives so there are lots of them.  Most of her cousins live in Falam so she gets together with them every Sunday at church and afterwards they have afternoon tea at someone’s home; 

   • His mother went to Hong Kong on a Student visa in 1996 and spent 2 years there studying a Master of Theology; 
   • His mother-in-law, Nang Pri, came here for 3 months last year and returned to Burma before her visa expired;

   ·His mother receives a pension from her previous employer and she has had her own small winemaking business since 1989/90.  She owns land outside of Falam where she grows the grapes for her wine, which she sells locally.  She is known in Falam for her red wine;

   ·His mother has the equivalent of about $10,500 AUD in the bank.  He will also financially support her during her stay;

   ·He earns $50,000 per year plus bonuses as an accountant.  He and his wife also run a small grocery shop.  His 2016 taxable income was low because of tax losses associated with the business, which is in its first year.  They have $6,000 in savings at the moment.  The large cash deposits into his bank account that the delegate queried are the takings of his business;

   ·His mother will definitely go home; she wouldn’t want to stay here for the rest of her life and he wouldn’t want her to.  She speaks very little English, she is almost 64 years old and she wants to be buried where she grew up; 

   ·He and his wife work 5 days per week and his son goes to child care 5 days per week so if his mother overstayed her visa the only days she would see them is on weekends.  By comparison, back home there is something happening every day – she runs her own wine making business, she organises things around the house, she talks to neighbours and she fixes up the land around her house. 

8. The Tribunal discussed relevant Burmese country information with the review applicant, including:

   ·DFAT’s SmartTraveller website caution, as at 12 October 2016, advising Australians to exercise a high degree of caution in Myanmar overall due to the uncertain security situation and the possibility of further civil unrest;

   ·The Department’s modified non-return rates for Burma for the year ending 30/6/11 - 2.62%; 30/6/12 - 1.54% and 30/6/13 - 1.60%;

   ·Information from the DIBP Country Information Situation Brief for Burma’s 2015 elections, issued 10 December 2015, which confirmed a landslide victory for Aung San Su Kyi’s National League for Democracy Party (footnote 81);

   ·An article from the UCA news, which confirms that in March 2016 President-elect U Htin Kyaw appointed 3 Christian lawmakers as regional and chief ministers in predominantly Buddhist Myanmar; and

   ·Information from DFAT’s June 2015 country information report about the treatment of Chin Christians in Burma.  This states that although some administrative and societal discrimination occurs, Chin Christians experience low levels of discrimination on a daily basis and they are unlikely to experience violence because of their religious beliefs.

9. The review applicant stated that there have always been wars in Burma but things are getting better and the election result was great news for Chin Christians.  He said that Burma is a poor country compared to other countries in the region, and that is why the Christian ministers the government appointed want the best for the Chin region; this would never have happened under the old regime.  The review applicant stated that if Chin Christians follow the rules and behave appropriately, they can avoid violence and discrimination and now that they have a new government it is much improved. 

10. On 28 November 2016 the review applicant submitted:

    ·    A letter from the Lutheran Theological Seminary, dated 3 October 1996, about his mother’s studies in Hong Kong and her Hong Kong visa application;

    ·    A copy of the visa applicant’s Hong Kong visa valid until 20 January 1998;

    ·    A copy of the visa applicant’s previous passport;

    ·    A letter from the Falam Baptist Association, dated 23 November 2016, confirming that the visa applicant is a retired pastor, former leader and lecturer.  The letter confirms that she studied in Hong Kong for 2 years and completed her studies in 1998.  She retired in 2010 and receives a pension of 100,000 Burmese Kyats per month;

    ·    A copy of the review applicant’s mother-in-law’s passport, which shows that she entered Australia on 9 May 2015 and re-entered Burma on 7 August 2015;

    ·    A spread sheet calculation of the visa applicant’s 2015/16 income and expenditure, which shows total income of 4,720,000 MMK less expenses totalling 1,200,000 MMK, leaving surplus income over expenditure of $3,520,000 MMK;

    ·    Photographs of the visa applicant’s wine-making business premises.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The visa applicant seeks the visa for the purpose of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

13. 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)). However, as the visa applicant has never previously held an Australian visa, cl.600.211(a) is not relevant.

14. 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.

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

16. In assessing cl.600.211(b) and (c), the Tribunal notes that the delegate was not satisfied the visa applicant had provided any evidence of her personal financial situation or other ties to Burma. That evidence is now available to the Tribunal.

17. Although the delegate referred to the adverse security, political and/or economic situation prevailing in the visa applicant’s region of Burma, no specific country information was provided.  The Tribunal notes that the visa applicant hails from Chin state, the country information in relation to which is largely favourable compared to, say, Kachin state, which is beset by armed conflict between ethnic groups and Burmese military forces.  On that basis, the Tribunal considers that relevant country information does not indicate an increased risk that the visa applicant will overstay her visa.  That said, the Tribunal recognises that the presence of the review applicant and his family in Australia may provide some incentive for the visa applicant to overstay her visa.

18. However, the Tribunal considers there are more factors that, on balance, suggest the visa should be granted, including that:

    ·The visa applicant lives with her brother and his wife in their large, comfortable, inherited family home, from which they also generate rental income.  The visa applicant also receives a local pension and operates her own winery;

    ·She is surrounded in Falam town, where she lives, by extended family that she sees on a weekly basis.  Therefore, the visa applicant is clearly well-settled in her hometown;

    ·She has a history of having travelled to Hong Kong to study for 2 years, and there is no evidence that she failed to comply with any of her visa conditions;

    ·The visa applicant has savings to fund her trip, if need be, albeit that the review applicant, who is an accountant and runs a small business with his wife, has offered to cover expenses associated with her stay;

    ·The Tribunal considers that the visa applicant leads a full and active life in her hometown and, by comparison, she would be isolated, lonely and have difficulty communicating if she were to overstay her visa;

    ·Finally, the Department’s movement records verify that the review applicant’s mother-in-law, Nang Pri, travelled to Australia on a Subclass 600 visa on 9 May 2015 and departed prior to its cessation on 6 August 2015, which the Tribunal considers is confirmatory of the review applicant’s bona fides.  On that basis, the Tribunal places weight on his assurances that the visa applicant will return to Burma in a timely fashion after her stay.

19. 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. Accordingly, the Tribunal finds that the requirements of cl.600.211 are met.

    DECISION

20. 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.

    Di Hubble
    Member