1820530 (Migration)

[2019] AATA 4900

1820530 (Migration) [2019] AATA 4900 (19 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820530

MEMBER:Adrienne Millbank

DATE:19 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 19 July 2019 at 11:52am

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – genuine temporary stay – presence of family an incentive to remain in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 600.211

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 Immigration on 18 May 2018 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 is a [age] year old national of Myanmar. He proposed a visit of up to three months, with his wife, to spend time with their two sons and their families, and to see Australia. The visa applicant’s wife’s application was also refused, and she has also applied for review of the decision.

3. At the time of application the visa applicant and his wife proposed an entry of up to 3 months, and to come in April and May 2018. At the time of decision they are proposing to come for 3 or 4 weeks during the time of school holidays in [a state], from [September] 2019.

4. The visa applicant applied for the visa on 16 March 2018. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

5. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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.

6. The Delegate refused to grant the visa, on the basis that the visa applicant did not meet cl.600.211. The Delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is intended.

7. The Delegate noted that one of the visa applicant’s sons, the review applicant, whom the visa applicant and his wife are proposing to visit, entered Australia on a Sponsored Family Visitor visa and did not depart. The review applicant obtained permanent residence by applying for and being granted a [temporary visa].  The Delegate noted that the other son whom the visa applicant and his wife are proposing to visit entered Australia on [another visa], also did not depart, and obtained permanent resident status by claiming   [details deleted].

8. The Delegate considered the situation that the visa applicant resides in Yangon, Myanmar; that it is well documented that Myanmar has suffered sectarian conflict in recent years; and that the situation in Myanmar remains unpredictable. The Delegate advised in the decision record that Departmental information shows that it is not uncommon for Myanmar nationals of a similar background to the visa applicant overstay their visa or apply for a [temporary visa] following their arrival in Australia. The Delegate advised that the immigration activities in Australia of other nationals from his home country are a relevant consideration in deciding whether a visa applicant is a genuine applicant for entry and stay as a tourist.

9. The Delegate acknowledged that the visa applicant has business and family ties in Myanmar, but found these to be outweighed by the conditions in Myanmar, and the presence of family members in Australia, that might encourage the visa applicant to remain. The Delegate could not be satisfied that the visa applicant genuinely intended a temporary stay in Australia.  

10. The review applicant appeared before the Tribunal on 2 July 2019 to give evidence and present arguments. With the agreement of the review applicant, the hearing was a joint hearing of the application of the visa applicant’s wife, the review applicant’s mother. The Tribunal also received oral evidence from the review applicant’s wife, the visa applicant’s daughter-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

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

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

15. The visa applicant has not entered Australia or applied for a visa to enter Australia previously. The Tribunal acknowledges that the visa applicant has travelled to [Country 1], [Country 2], [Country 3] and [Country 4], and accepts, on the advice of the review applicant, that he complied with his entry and stay conditions and experienced no visa issues or problems on these trips. The Tribunal notes that the visa applicant does not have family members resident in these countries. The Tribunal gives no weight to this consideration, for the reason that because the visa applicant’s travel was for work and/or religious purposes, and he has no family in those countries, his incentives would have been to return to Myanmar.

16. 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

17. The visa applicant is [age] years of age and proposes to visit for the purpose of spending time with his sons and their families in Australia. There is no information or evidence before the Tribunal to indicate that the visa applicant intends to work or study in Australia, and the Tribunal accepts that he intends to comply with these visa conditions.  

18. The Tribunal has considered all other matters relevant to the applicant’s claim to genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)).   

19. The review applicant at hearing acknowledged that he first entered the county, with his wife, on temporary Sponsored Family Visitor visas. He stated that they were sponsored by his wife’s aunt, who has resided in Australia for around 25 years. He stated that he and his brother applied for [temporary visas]. He claimed that conditions in Myanmar have improved over the last decade; that his parents and other family members were safe and secure living in Yangon City; and that his father has no intention of applying for [details deleted] in Australia.

20. The Tribunal put to the review applicant that the Department of Foreign Affairs and Trade (DFAT) Country Information Report on Myanmar of 18 April 2019 does not report a diminution of sectarian conflict or significant improvement in the security conditions in Myanmar over the last 10 years. It reports rather that Myanmar remains one of Asia’s poorest countries, with continuing sectarian violence, high levels of corruption, and disparities between ethnic and religious groups in access to services such as health. It reports specifically that large scale violent attacks against the Rohingya population, mainly in Rakhine State, have continued. It reports that anti-Muslim sentiment is prevalent throughout the country; that it is worse outside of major cities but that there were attacks on the Muslim community in Yangon in 2018; that Muslims face a range of limitations on their ability to practice their faith freely; that tolerance of Islamic faith activities has decreased in recent years; and that access to effective state protection in Myanmar is more difficult for Muslims. 

21. The review applicant in response repeated that his parents are safe and secure living in Yangon City, and that his father has no need or intention of seeking [details deleted] in Australia. The applicant swore his oath at hearing on a Koran, and confirmed to the Tribunal that he and his family are Muslims. The Tribunal accepts that the Myanmar security situation is better in Yangon City than in Rakhine State. The Tribunal considers however, on the basis of the DFAT Country Information Report, that conditions for Muslims like the visa applicant are such as to provide both inducement and the basis for a [visa] application in Australia. The Tribunal further notes that the review applicant when he himself applied for a Visitor visa in 2010, claimed to be a genuine temporary visitor from Yangon in Myanmar. For these reasons the Tribunal did not accept the review applicant’s reassurances that the visa applicant has no intention of seeking [details deleted] in Australia.

22. In a written statement dated 29 June 2018, the review applicant stated that the purpose of his parent’s proposed visit was ‘purely family visit and tourism’. He stated that his father is [employed in Occupation 1] in Myanmar; that the business is successful; that it is jointly run by the review applicant’s brother; and that the review applicant would ensure that his parents complied with the conditions of their visas for fear of jeopardising future Visitor visa applications from other family members. At hearing the review applicant’s wife advised that previous applications by her parents for Visitor visas have been refused, but she is hoping that applications in the future will be granted.

23. The visa applicant, in a statutory declaration signed on 22 June 2018, stated that he wanted ‘to spend some quality family time and visit tourist attractions such as [a city] and [another city]’, and that he and his wife have no intention to stay permanently. He declared that he owned property worth [amount], and had over [amount] in a personal bank account.

24. In a statutory declaration signed on 10 July 2018 the review applicant declared that he wanted to invite his parents for a visit; that he would take full responsibility for all their expenses; and that he would ‘sign any further undertaking’ in support of the application. Evidence was provided of the review applicant and his wife’s employment and income is adequate to fund the visa applicant and his wife’s travel and stay expenses. At hearing the review applicant advised that he and his wife have recently purchased a new home with room for his parents. He advised that his father, as a businessman, could and would finance his own and his mother’s trip. The Tribunal accepts that visa applicant has the financial resources to fund a visit to Australia, and that the review applicant and his wife also have adequate resources to support the visa applicant and his wife during a family visit.

25. In his written statement of 29 June 2018 the review applicant claimed that he is considering returning to Myanmar to pursue business activities with his brother and father, but only after his three children have completed their schooling in Australia. At hearing he confirmed that he and his wife have returned to Myanmar, with their 3 children, and spent time with his parents, the children’s grandparents. He confirmed also that his brother who also lives in [City 3] has also returned, with his wife and 2 children, to Myanmar to spend time with the visa applicant and his wife. The review applicant claimed however that it has become difficult for his family to travel to Myanmar because his wife is working [in an occupation], and it was hard for them to find time to travel as a family. He stated that it is easier for his parents to come and spend time with them in Australia. 

26. The review applicant confirmed that of the visa applicant’s children and grandchildren, two sons and five grandchildren live in [City 3], Australia, and two daughters and one son live in Yangon, Myanmar. When asked what plans he had discussed with his father and mother regarding his father’s retirement plans — which children they might live with or near in their retirement — the review applicant claimed that he has never had such a discussion with his parents; that the visa applicant at [age] years old has no plans to retire; and that the visa applicant has no plans to retire in Australia. The Tribunal accepts that retirement is a culturally different concept in Myanmar, but nevertheless does not accept that the review applicant has never discussed with his parents where and with or near which of his children his father, the visa applicant, might want to live when he grows old and frail.

27. Evidence provided to the Tribunal included a copy of the notification of a grant of a Visitor visa to the review applicant’s twin brother, who visited Australia in December 2017 and January 2018. The Tribunal accepts that the review applicant’s brother visited his siblings in Australia and complied with his Visitor visa conditions and departed within the eligibility of his visa. The Tribunal however does not accept the review applicant’s argument that the fact that one out of three brothers did not claim [details deleted] while in Australia on a temporary visa demonstrates that the visa applicant will depart the country within the eligibility of a Visitor visa.

28. The review applicant advised that the visa applicant has travelled, as noted, to [Country 1], [Country 2], [Country 3] and [Country 4]. The review applicant’s wife stated that the visa applicant’s wife accompanied the visa applicant to [Country 1], and might also have accompanied him on some of his business related trips to countries closer to Myanmar, such as [Country 3]. As noted above, the Tribunal accepts that the visa applicant complied with the conditions of his visas on these occasions, but gives no weight to this consideration, as he travelled previously for work and/or religious reasons, and has no family in these countries.

29. The Tribunal accepts that the visa applicant has a business of which he is [employed in Occupation 1], an established home, 3 children and 2 grandchildren in Myanmar. The Tribunal accepts that the visa applicant has travelled internationally, and that he has one son who has visited Australia and departed Australia within the validity of his visa.  The Tribunal however considers that the poor economic and security conditions in Myanmar, and the presence of family in Australia, provide incentives for him to remain in Australia that outweigh incentives to return to Myanmar. The Tribunal further considers that the visa applicant’s two sons in Australia have demonstrated a pathway by which the visa applicant may also seek to remain in Australia.

30. 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

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

    Adrienne Millbank
    Member