Afroj (Migration)

[2021] AATA 5483

Afroj (Migration) [2021] AATA 5483 (24 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mahbuba Afroj

VISA APPLICANT:  Mrs Mst Shahanara Sarker

REPRESENTATIVE:  Ms Varni Sathasevam (MARN: 1688817)

CASE NUMBER:  2008570

HOME AFFAIRS REFERENCE(S):          BCC2020/603487

MEMBER:Naomi Schmitz

DATE:24 December 2021

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 24 December 2021 at 1:15pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –– Tourist stream – applicant’s substantial compliance with the conditions of her two previous substantive visas – close family ties to India– the visa applicant genuinely intends to stay temporarily in Australia – positive migration history – good international travel history –decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359

Migration Regulations 1994, 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 Home Affairs on 9 March 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 27 February 2020. 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 (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.

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 genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.  

5. The review applicant appeared before the Tribunal on 23 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from Dhaka, Bangladesh. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant who is currently living in Bangladesh and only able to provide evidence ‘virtually’. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. After this matter was constituted to the Tribunal Member on 26 October 2021, the Tribunal wrote to the review applicant and requested updated information and records to be provided by 16 November 2021 including; a copy of the visa applicant’s passport ensuring that all passport country stamps are visible; an itemised list of all the countries the visa applicant has travelled to, if any, including the arrival and departure dates; evidence of the visa applicant’s current employment, if any, such as evidence of recent pay slips or taxation; evidence of ownership of property, for example a certificate of title or rates notice and approximate value of property; if the visa applicant is currently leasing property, evidence of the duration of the lease, such as a lease contract; any updated information and records about the visa applicant’s assets and financial situation such as money in bank accounts; and any other information relevant to the visa applicant’s activities, commitments or relationships in her home country, including family.

10. In response on 12 and 16 November 2021 the representative provided: legal submissions (undated); the visa applicant’s current and expired passports with country passport stamps; a list of countries the visa applicant has previously travelled to; the visa applicant’s five-year lease contract (for her residential address) from 1 January 2021 until 31 December 2025; the visa applicant’s bank account statement between 1 November 2020 and 4 November 2021 with a closing balance of 520,193.54 equivalent to $8,423.12AUD; the visa applicant’s 2021 tax return showing a total income of 870,000.00TK equivalent to $14,088.78AUD and a net worth of 1,230,400.00TK equivalent to $19,925.00AUD; the marriage certificates of review applicant and Dillruba Afroj (visa applicant’s other daughter); the birth certificates of two of the visa applicant’s grandchildren in Bangladesh; evidence of medical consultation for visa applicant’s grandson’s circumcision; the review applicant’s payslips and Commonwealth Bank of Australia bank statement showing a closing balance on 31 July 2021 of $11,000.00AUD; Dillruba Afroj’s affidavit, bank statements and business/trade licence; a letter from the visa applicant’s employer Sneha Trading Centre dated 2 November 2021 confirming the visa applicant’s employment since 1 January 2018 and a monthly income of 100,000TK equivalent to $1,618.8 and monthly pay slips from May 2021 to October 2021; a statutory declaration dated 11 November 2021 by the review applicant; a statutory declaration by the visa applicant (undated); and an affidavit by the visa applicant claiming she owns a property in Matlab Uttar, Bangladesh worth 101,729.40TK equivalent to $1,645.98.

11. Subsequent to the hearing, on 24 November 2021, the representative provided a certificate of title as evidence of the visa applicant’s property ownership.

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. The visa applicant is a 56-year-old citizen of Bangladesh. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter who is an Australian permanent resident. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

14. The visa applicant requested a visitor visa for up to three months with a planned arrival date of 20 March 2020 and a departure date of 20 June 2020.

15. 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)).

16. The visa applicant has been granted two previous visitor visas (family sponsored) and travelled to Australia on three prior occasions. This includes a visitor visa granted on 5  November 2014, that was valid for 12 months with the visa applicant arriving in Australia on 15 November 2014 and departing at the end of the tenth month on 14 September 2015. The visa applicant was granted a further visa on 13 October 2016 which was valid for three years. The visa applicant arrived in Australia on 5 November 2016 and remained in Australia for a 11-month period until 11 October 2017. She subsequently re-entered Australia on the same visa on 1 June 2019 and departed Australia on 11 October 2019, staying a total four months, departing prior to the expiry of the visa. On each occasion the visa applicant was compliant. The Tribunal places significant weight on the visa applicant’s substantial compliance with the conditions of her two previous substantive visas. (cl.600.211(a).

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 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

18. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given she has applied for a visitor visa for the purposes of visiting family, the short duration of the visit, her age and the language barrier. The Tribunal is also satisfied based on the financial evidence submitted that the visa applicant has sufficient personal savings to support herself. The Tribunal also accepts that she will be accommodated and financially supported by the review applicant during her stay in Australia.

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

20. Firstly, the Tribunal has considered the purpose of the visit. The visa applicant gave evidence that the purpose of her visit is to see her daughter, the review applicant, who she has not seen for over two years, her daughter’s husband and two grandchildren. It is proposed that the visa applicant’s grandson will be circumcised. She explained in Muslim culture it is very important that the grandparent attends their grandchild’s circumcision which has been delayed due to the visa applicant’s visa refusal. She also intends to spend time with her other daughter, Ms Fatema Afrose who is residing in Melbourne. Ms Afrose is currently on a bridging visa, having made an application for a [permanent] visa which is discussed further below.

21. The visa applicant stated she proposed to stay for five or 10 months. The Tribunal noted this was inconsistent with her visa application where she sought a stay of up to three months and asked why the visa applicant now sought further time. The visa applicant stated that due to COVID-19 she had not travelled in a long time and she had also accumulated annual leave and wanted to spend as much time as possible with her family in Australia and would thereafter return to Bangladesh. The review applicant gave evidence that her mother would stay at least three months, but is hoping to be granted a longer visa period, given her good migration record. The Tribunal accepts the visa applicant and review applicant’s evidence. This appears to be a valid reason to apply for a visitor visa to Australia.

22. Secondly, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside Bangladesh. The visa applicant stated she has travelled twice to India, including from 20 and 21 April 2018 and 8 to 10 November 2018 and in support provided a copy of her passport depicting the relevant country stamps. The Tribunal accepts that the visa applicant has undertaken the above travel, however places limited weight in the visa applicant’s favour due to the short durations. The Tribunal also places limited weight on this previous travel as evidence that the visa applicant intends a genuine temporary stay, as the visa applicant has a daughter and two grandchildren who are close family members in Australia, that she did not have in India.

23. Thirdly, the Tribunal has taken into account the incentives to return to Bangladesh at the end of her proposed visit. The visa applicant stated she would return to Bangladesh as she has a daughter Ms Dillruba Afroj and three grandchildren who she shares a close relationship with and who reside in the same apartment complex as her. Due to her daughter running a successful fashion business and her son-in-law having a busy career as a Technical Manager of Water Resources and Environment, they often travel interstate or overseas and depend on the visa applicant to care for their three children. The visa applicant also stated despite being a widow, she has a large number of relatives from her husband’s family who she maintains contact with since her husband’s passing. In contrast, the visa applicant only has the review applicant and two grandchildren in Australia. As Ms Afrose’s [permanent] visa application is yet to be determined, and she holds a temporary visa, the Tribunal does not regard her as constituting a tie to Australia. The Tribunal has considered the visa applicant and review applicant’s evidence and various documents filed in support and accepts their  evidence and places some weight on the large family network that reside in Bangladesh as an incentive to return after her visit to Australia.

24. The visa applicant stated she lives a very comfortable and happy life in Bangladesh and would not consider relocating to Australia. She stressed it would be difficult for her, particularly at her late age, to uplift her life to a country where she does not speak the language and has no community ties. The Tribunal found the visa applicant’s evidence to be sincere and places some weight on these factors.

25. The visa applicant also stated that she is employed in her family business Sneha Trading where she is the Chief Executive Officer (CEO) managing the company’s overall operations, communicating with the board and actively participating in the financial management process. She stated her employment provides her with financial security where she receives a regular monthly income. During the visa applicant’s evidence she stated it was an ‘honour position’, given to her in lieu of receiving part of a family inheritance. This troubled the Tribunal Member, as the visa applicant receives renumeration regardless of undertaking any work and her role is part of a family/wills estate settlement. During the hearing the Tribunal Member stated they also had difficulty accepting her evidence due to her travel history, whereby she has spent significant periods of time away from Bangladesh, including four months in Australia in 2019 whilst CEO. The Tribunal Member explained this undermined the visa applicant’s evidence that she was fundamental to the operations of the company. Later in the visa applicant’s evidence, she disclosed various health issues, including her having memory and vision issues and being delusional seeing ‘dead things’. Consequently the Tribunal is not satisfied that her employment constitutes a strong economic incentive to return, as she receives a salary regardless of undertaking any work. Her health issues also raise doubts as to her work capacity.

26. The visa applicant is currently leasing a property. The Tribunal does not place any weight on this as an incentive to return, as it is a lease and if the visa applicant were to remain in Australia, it would be difficult for the landlord to recoup any outstanding rental debts or commence litigation proceedings. It is also the Tribunal’s understanding that it is a monthly lease and that five years of rent have not been paid upfront, which would constitute an incentive to return, given the financial loss if the visa applicant were to remain in Australia. The Tribunal however does accept the lease contract as evidence of her residing close to her daughter and three grandchildren. The Tribunal accepts that the visa applicant has approximately $8,423.12AUD in personal savings, however places limited weight on these funds, as the money could be easily transferred, withdrawn or accessed remotely from Australia.

27. The visa applicant claimed to own a property. In support she provided an affidavit. During the hearing the Tribunal Member stated that they did not accept this as evidence property ownership, as the document was self-serving and not independent and credible evidence. During the hearing the visa applicant stated that she owns land which was originally from her husband’s inheritance valued at 101,720.40PKR equivalent to $1,644.50AUD. Subsequent to the hearing a certificate of title was provided in support. The Tribunal places some weight on this land as an incentive to return to Bangladesh.

28. The Tribunal put Ms Afrose’s migration history to the visa applicant, namely that she originally visited Australia on a family sponsored visitor visa (sponsored by the review applicant) on 1 June 2019 and subsequently applied for a [permanent] visa in July 2019 (invalid) and later in October 2019 (pending). Her application is yet to be determined and she has remained onshore in Australia. The visa applicant was asked in light of this information, why she would not do the same as a means of permanently staying in Australia. The visa applicant denied having such an intention, stating she has a job, wealth and all her relatives reside in Bangladesh. She also referred to her good migration record and abiding by Australia’s migration laws. [Details deleted].

29. Under the natural justice provisions pursuant to s359AA of the Migration Act, the Tribunal put to the review applicant, her sister’s migration history and asked why the visa applicant would not do the same and apply for a [permanent] visa. [Details deleted]. The review applicant reiterated that the visa applicant had a strong incentives to return to Bangladesh.

30. [Details deleted].

31. The Tribunal explained that as a relevant factor pursuant to cl 600.211(c), it may consider the situation of a visa applicant’s home country, Bangladesh, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which refers to Bangladesh experiencing significant political, social and economic turmoil since independence. The security situation is volatile and can deteriorate quickly with politically motivated violence, terrorist attacks, criminal violence and clashes between different ethnic groups including in the visa applicant’s hometown of Dhaka where in July 2016 two police officers were killed and 20 people were taken as hostages. Bangladesh is classified as a lower middle-income country. Health care facilities in Bangladesh are generally poor in quality. The report refers to the country continuing to face growing authoritarianism, extreme political polarisation and escalated tensions between Islamists and secularists. The Tribunal member contrasted Bangladesh’s situation with Australia, which is economically stronger, is a liberal democracy and politically stable and has a well-resourced health care system.[1]

    [1] Department of Foreign Affairs and Trade Country Information Report – Bangladesh dated 22 August 2012

32. The visa applicant stated that she is old, nearly 57 years and has never faced such problems. She also stated she is a law-abiding citizen and lived peacefully. She also stated that if she really wanted to migrate to Australia, she had the option of applying for a Subclass 115 remaining relative visa as a pathway to Australia, yet had never contemplated it. The same information was put to the review applicant who did not deny that Bangladesh suffered from the problems referred to in paragraph [28] above. ‘Bangladesh has been like that forever. It is not something that has arisen all off a sudden’. However she denied that these issues affected her mother or that such security and political issues would act as a deterrent for her mother to return. She emphasised that her mother was not political and not part of any political group. The Tribunal accepts the visa applicant and review applicant’s evidence who presented as honest and reliable witnesses.

1. The visa applicant gave evidence that she did not have any well-founded fear of any form of persecution in Bangladesh due to her race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is Sunni Muslim from the majority Bengali ethnic group, which makes up 98% of the Bangladesh population.[2] The review applicant gave evidence of the same. The Tribunal accepts the visa applicant and review applicants evidence. The review applicant also gave evidence of returning to Bangladesh from October to November 2017 to see the visa applicant since becoming an Australian permanent resident and has no security concerns. The Tribunal also notes that the review applicant, who migrated from Bangladesh obtained permanent residency as a result of a partner visa rather than a protection visa.

   [2] Ibid

2. The review applicant stated that she would be prepared to lodge a security bond in the sum of $10,000AUD to guarantee the visa applicant’s return.

3. At the conclusion of the hearing, the representative submitted that Ms Afrose lodged her [permanent] visa application whilst the visa applicant was in Australia in October 2019. She stated the visa applicant had the opportunity to lodge other visas and remain, but did not avail herself and departed within the validity of her visa. She stressed the visa applicant’s last departure showed she had no intention to remain permanently in Australia. She emphasised the visa applicant’s good migration record, extensive travel history to Australia, large family network in Bangladesh, employment, land in her name, her rental lease agreement and her having sufficient funds to support herself.

   CONCLUSION

4. The Tribunal has considered all matters carefully. There are a number of factors in the visa applicant’s favour, including her having a valid reason to visit Australia. The Tribunal places significant weight on the fact that the visa applicant has complied substantially with previous visitor visas. There is no evidence before the Tribunal that she would not comply in the future or that her personal circumstances or the country situation in Bangladesh have changed from her previous visas which would act as a disincentive to return. The Tribunal accepts that if a security bond was required of the review applicant, the visa applicant would be highly motivated to ensure that she returns to Bangladesh before the expiry of her visa due to financial hardship in losing a security bond caused to her daughter, as well as adverse implications for future visa applications to Australia. Limited weight is placed on the visa applicant’s previous travel to India due to the short durations and the visa applicant not having any family who reside there.

5. The Tribunal is satisfied that there is a large family network who reside in Bangladesh, in particular the visa applicant’s daughter and three grandchildren and her husband’s family which would act as a strong incentive to return. The Tribunal also acknowledges the difficulty the visa applicant would have if she remained in Australia, at her late age isolated, in a country where she does not speak the language and does not have close community ties. For the reasons outlined above, the Tribunal does not regard the visa applicant’s employment as constituting a strong economic incentive to return. Similarly the Tribunal does not consider the visa applicant’s lease as a strong incentive to return due to the difficulty in recouping rental debts outside of the jurisdiction and there being no evidence of upfront payment and any financial loss incurred if the visa applicant were to remain in Australia. Limited weight is also placed on the visa applicant’s personal savings given they can be easily withdrawn, transferred or accessed remotely from within Australia. Some weight is placed on the visa applicant’s land.

6. The Tribunal is also satisfied that the security, political situation and health care system would not act as a disincentive to return and that the visa applicant does not have any fears of persecution. [Details deleted]. The visa applicant is also distinguishable from Ms Afrose, in that the visa applicant is a much older woman, with established family and cultural ties. The Tribunal further notes that Ms Afrose lodged her application for a [permanent] visa when the visa applicant was last onshore, and yet the visa applicant departed within the validity of her visa and did not make such a [permanent] claim despite having the opportunity. This gives the Tribunal confidence that the visa applicant will comply with the visitor visa conditions and that she will depart Australia in accordance with the end date of her visitor visa.

7. 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.

   DECISION

8. 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.

   Naomi Schmitz
   Member