1821989 (Migration)

[2018] AATA 5336

1821989 (Migration) [2018] AATA 5336 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821989

MEMBER:Nathan Goetz

DATE:20 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2018 at 12:31pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – not a genuine temporary entrant – review applicant’s protection visa application and medical condition – visa applicant’s similar background of Buddhist persecution in Bangladesh – visa applicant’s temporary residence in third country not guaranteed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, 600.612

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 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 27 April 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 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). 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. On 29 May 2018, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. On 27 July 2018, the review applicant lodged a review application of this decision with the Tribunal. A copy of the delegate decision was provided with the review application.

5. The review applicant appeared before the Tribunal on Friday 26 October 2018 to give evidence and present arguments. The Tribunal enquired whether the review applicant would consent to the holding of the hearing sooner than the prescribed 14 day notification period allowed, and the review applicant consented in writing for this to occur.

6. The Tribunal also received oral evidence from the visa applicant by telephone from [Country 1].

7. The Tribunal was assisted by an interpreter in the Bengali language. The review applicant indicated that he wished the Tribunal to take evidence from his wife. His wife was not present at the Tribunal. She was working but was available by telephone to give evidence in support of the review applicant’s current health problems. As the issue took no issue that the review applicant had health problems, the Tribunal did not contact the review applicant’s wife to obtain her evidence.

8. The Tribunal has considered the material received post hearing from the visa applicant, including the fact that the applicant travelled to [other countries] [in] November 2018 and has since returned to [Country 1].

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Background

10. The review applicant [is] also known as [another name]. The review applicant is the holder of a Resident Return (subclass 155) visa which was granted on 18 April 2018. This visa was granted through Ministerial Intervention and according to the review applicant, the basis for the grant of this visa was due to his health problems. The Tribunal accepts that this is the case. A significant amount of documentation was provided to the delegate and the Tribunal about the review applicant’s health problems and his personal circumstances. The Tribunal accepts that the review applicant is currently having [medical treatment] under the care of [a named doctor]. [Details deleted]. [The review applicant] has secured social housing through the intervention of his local state Member of Parliament, and is in receipt of welfare. The Tribunal notes that [the review applicant] is a failed asylum seeker, and this will become relevant to the Tribunal’s findings later in this decision.

11. The visa [applicant] is the brother of the review applicant. [The visa applicant] is a citizen of Bangladesh but currently resides in [Country 1] on a temporary [permit]. The visa applicant is a Buddhist [monk]. He wrote that he wanted to visit Australia for up to three months, but told the Tribunal that he would be happy to visit here for one month only and then return to [Country 1].

12. The visa applicant provided the Tribunal with considerable material about his activities in [Country 1], including confirmation of his current enrolment in a [course] and confirmation that his living expenses in [Country 1] were being met by a [benefactor] who lives in [Country 1].

13. The visa applicant also provided documentation which stated that he is engaged in various religious activities in his home village. These include being the founder and spitirual meditation teacher of [a] Meditation centre, being the founder chairman of [a] religious and social educational institute in [Bangladesh], and being associated with [a] Monastery in [Bangladesh]. The visa applicant confirmed that he has been in [Country 1] from [September] 2004 until date, but has travelled in and out of the country during that time. He confirmed that his current permit allows him to remain in [Country 1] until September 2019 and that it is a condition of this permit that he is completing his studies.

    Purpose of the visit

14. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant, who is his brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Compliance by the visa applicant with previous visas

15. The Tribunal notes that the visa applicant has travelled to Australia three times previously as follows:

    ·[June] 2008 to [July] 2008 on a Business (Short Stay) visa (subclass 456)

    ·[July] 2009 to [January] 2010 on a Tourist visa (subclass 676)

    ·[November] 2010 to [November] 2010 on a Business (Short Stay) visa (subclass 456)

16. There is nothing before the Tribunal to suggest that the visa applicant did not comply with any conditions which were imposed on those visas. The Tribunal has considered this favourably to the visa applicant when determining whether he genuinely intends to enter and remain in Australia temporarily and has given some weight to the fact that the visa applicant travelled to and from [other countries] without incident.

    Intention to comply with visa conditions

17. 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.600.612):

    ·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.

18. Both the review applicant and the visa applicant gave evidence that the visa applicant would not work while in Australia, would not engage in any study or training, would not apply for any other substantive visa, and would not remain in Australia after the end of the permitted stay. The visa applicant said that his only intention to travel to Australia was to visit his brother. In light of the findings the Tribunal has made under ‘other relevant matters’, the Tribunal is not satisfied that the visa applicant would comply with condition 8531.

    Any other relevant matters

19. The Tribunal has had regard to the fact that the review applicant came to Australia on a tourist visa and made a subsequent application for a protection visa. The Tribunal was concerned that the visa applicant had similar intentions to enter Australia and make a similar application, and that he did not have a genuine intention to come to Australia as a temporary visitor. Given that the review applicant was firmly established in Australia, with stable accommodation, with a wife who works, and previous experience of the migration system in Australia, the Tribunal was concerned that the visa applicant would not have an incentive to leave Australia at the conclusion of his visit.

20. The Tribunal was concerned about the very similar circumstances of the visa applicant and the review applicant. According to the review applicant’s protection visa application, their father was murdered because he was a leader of the local Buddhist community in their home town. As a result, both of the children were sent to a Buddhist Orphanage in Dhaka to avoid being targeted by the group which harmed their father. This group also stole land from the family. The review applicant left Bangladesh and travelled to [Country 1] where he studied and became a monk. The review applicant then travelled to Australia and applied for a protection visa on the basis that he would be harmed if he returned to Bangladesh because of his religion and the dispute about the seized family lands.

21. The Tribunal had regard to the following claims made in relation to the review applicant’s protection claims. They were as follows:

    Case 060576336 – Decision 27 August 2006

22. The review applicant claimed that his father was the leader of the local Buddhist community and was killed in his village [in] 1993 and the family’s land was subsequently taken by local Muslims. He and his [brother] were sent to [an] Orphanage in Dhaka, where the review applicant subsequently becomes a monk. The local Muslims and people associated with the Bangladesh Nationalist Party were opposed to his religious activities and believed that the review applicant had returned to his local area to reclaim his father’s land or to avenge his father’s death. He was threatened with death if he did not leave the village.

23. The review applicant travelled to [Country 1] between [December] 2002 and [January] 2003 before returning to Bangladesh. He then returned to [Country 1] in April 2003 where he attended [a] Religious School in [City 1]. From there he obtained a visa to travel to Australia and arrived in June 2004.

24. The review applicant claimed that Buddhists are persecuted in Bangladesh and that he will be at particular risk because he was a religious leader or activist.

    Case 0801672 – Decision 30 September 2008

25. The applicant claimed the people behind his father’s killings took control of all the family’s properties through false documents and that his family was threatened with kidnappings. He claimed his family thus moved to another area. He claimed his real intention in visiting [Country 1] was to seek longer term refuge there. He said he was not able to stay after finishing his studies and that was why he applied for a visa to come to Australia.

26. The review applicant told that Tribunal at that hearing that his brother was not a monk and that was a reason why his brother was not targeted among villagers because he did not have a public profile.

27. The review applicant stated that his brother had never been targeted by local Muslims because, in spite of his brother continuing to live at the Buddhist orphanage, he had never been a monk himself and therefore does not have such a prominent profile among villagers. This situation has obviously changed because the visa applicant is now a Monk and from the material presented suggests he is someone with a high profile in Bangladesh.

28. Because the applicant’s brother is not a monk he is unable to perform a number of Buddhist rituals associated with the commemoration of the death of his father. It was further argued that the applicant’s brother has a different attitude to religious duties and family commitments compared with the applicant and this may be why his brother appears as a layperson. The applicant added that he had a higher profile because he has studied abroad. Again, the visa applicant is now someone who has studied abroad and would have a higher profile on his return to Bangladesh.

29. The review applicant brother only came back to visit his father’s grave at the cemetery at night. The applicant claimed that his brother continued to live away from the village for his own safety.

    CONCLUSION

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

31. In the Tribunal’s view, the visa applicant’s incentives to remain in Australia far outweigh his incentives to return to [Country 1]. The Tribunal is not satisfied that the visa applicant genuinely intends to visit Australia on a temporary basis to visit his brother. While there is no doubt that the review applicant is a sick man, in the Tribunal’s view the review applicant’s illness has provided the visa applicant with an opportune time to come to Australia with the likely course being an application for a protection visa, with the visa applicant’s intention to remain in Australia permanently.

32. There is no guarantee that the visa applicant’s permission to reside in [Country 1] will be granted further than September 2019, or if it was, there is no guarantee that the visa applicant will be able to reside in [Country 1] at the conclusion of his studies. Despite the visa applicant stating his intention is to return to Bangladesh at the conclusion of his studies, the Tribunal does not accept that this is the case because of the various claims made by the review applicant in the course of his protection application about the dangers his family face in Bangladesh.

33. The review applicant has claimed variously to previous Tribunal’s that his brother continued to live away from the family village in Bangladesh for his own safety, that the family had been threatened, that both he and his brother were sent away to an orphanage for safety reasons and that Buddhists are targeted generally in Bangladesh, and that his family have been targeted particularly because they had killed his father who was a local Buddhist leader and because of the appropriation of the family land by local Muslims. The Tribunal put its concerns to the review applicant about his past claims of harm as reasons for the Tribunal forming a view that the visa applicant was not coming to Australia for a temporary visit. The review applicant told the Tribunal that ‘things were much better now’ and that his brother did not have any reason not to return to Bangladesh. Noting that the visa applicant himself said that he experienced some hostility towards Buddhist monks on his last return to Bangladesh, and that the DFAT Smart Traveller Advice as at 26 October 2018 states that Bangladesh has an uncertain security situation, the Tribunal is not satisfied that the visa applicant genuinely intends to come to Australia as a visitor. The pattern of both the review applicant and the visa applicant leaving Bangladesh, travelling to [Country 1] to study, and the applicants seeking a visitor visa to come to Australia suggest to the Tribunal that the plan is for the visa applicant to follow in his brother’s footsteps and settle in Australia.

34. When the Tribunal put its concerns about the review applicant’s migration history to the review applicant, the review applicant stated that what happened was a ‘long time ago’ and that the situation was ‘different now’. He told the Tribunal that the situation ‘has changed’. The review applicant’s response was not persuasive and lacked specific details about how all these concerns had been remedied. Noting that the review applicant had declared the contents of his protection visa application to be the truth, the Tribunal’s view is that the review applicant attempted to dismiss his original claims because he wanted persuade the Tribunal that there were no concerns about the visa applicant returning to Bangladesh.

35. The Tribunal is not satisfied that the visa applicant genuinely intends to travel to Australia temporarily. Therefore, the visa applicant does not meet cl.600.211.

    DECISION

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

    Nathan Goetz
    Member