Hayat (Migration)

[2017] AATA 1183

Hayat (Migration) [2017] AATA 1183 (27 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abu Hayat

VISA APPLICANT:  Mr Arafat Sheikh

CASE NUMBER:  1700324

DIBP REFERENCE(S):  BCC2016/3349753

MEMBER:Roslyn Smidt

DATE:27 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 June 2017 at 2:21pm

CATCHWORDS
Migration – Visitor (Class FA) visa –  Subclass 600 (Visitor) – Tourist stream – Genuine temporary entrant – Evidence about employment and finances confused and unconvincing – No credible evidence of successful business or income – Stronger financial incentives to remain in Australia

LEGISLATION
Migration Act 1958, s.65
Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.221, 600.222, Condition 8531

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 4 November 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 10 October 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). 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 she did not accept that the evidence he had provided accurately reflected his financial situation in Bangladesh and she thus not satisfied that his employment and financial situation provided a strong incentive for him to return to Bangladesh and not satisfied that he would return to Bangladesh at the end of his stay in Australia.

5. The review applicant appeared before the Tribunal on 21 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   BACKGROUND

8. The visa applicant originally applied for a visa to visit his brother in Australia for three months from 1 November 2016 to 31 January 2017. According to the applicant his brother in Australia would cover all the costs of this travel. At the hearing the review applicant stated that his brother wanted to spend a month in Australia.

   The visa applicant

9. The visa applicant is a 27 year old man from Dhaka in Bangladesh. He is married, but has no children. His application is sponsored by his brother. Another brother arrived in Australia on a student visa in March 2017. His parents, another two siblings and his wife remain in Bangladesh.

10. According to his primary application, the visa applicant owns a shop selling electronic goods which was established on 28 August 2016. In support of his initial application he provided a land valuation certificate which appears to have been issued in September 2016. It indicates that he owns a shop, a flat and another property with a total value of 9986879 TK ($163,000). The visa applicant also provided a statement from a bank account dated 1 September 2016 which indicates that he had a balance of between 55,920 TK ($900) and 4,408 TK ($72) in the month prior to 1 September 2016 when 300,000 TK ($4900) in cash was deposited.

11. As noted above, the delegate refused the visa applicant’s application in part because in his view the 1 September 2016 cash deposit was probably made in order to support his application and was not genuine evidence of his financial situation in Bangladesh. According to a letter dated 28 December 2016 provided to the Tribunal in support of the application for review the visa applicant’s father provided the applicant with this money so he could establish his business selling electrical goods. The visa applicant also provided the Tribunal with a copy of a rental agreement for a shop dated 1 September 2015 and a trade license for an electronic shop dated 28 August 2016.

12. On 19 April 2017 the review applicant was asked for updated information on the visa applicant’s employment and financial situation. In response his adviser stated that his business was doing well and he planned to expand it in future. However, current evidence of his income from the business or any savings he holds has been provided.

13. The visa applicant has never travelled outside Bangladesh. He applied unsuccessfully for a visitor visa in 2015. His 53 year old mother visited Australia for two weeks in September 2015.

14. At the hearing the visa applicant said that he had operated a shop selling electronic goods for about a year.  He purchased the business with funds provided by his father and other family members.  He said that he had finished school about 3 years ago and between leaving school and opening the shop he had earned some money playing cricket.  He said that he had two employees and his wife also worked at the shop and claimed to earn about 100,000 TK ($1600) a month from the business.   He said that his wife and father would take care of his business while he is in Australia.

15. At the hearing the Tribunal noted that his application had been refused by the delegate because the delegate was not satisfied that he intended to remain in Australia temporarily and asked for his comments. The visa applicant said that he had no intention of remaining in Australia for more than a month. He said that he had a good business which was expanding. In addition, he had recently married and he and his wife intended to start a family and as the only son remaining in Bangladesh he is responsible for caring for his parents.

    The review applicant

16. The review applicant is a 37 year old married man. Originally from Bangladesh, he arrived in Australia in June 2006 on a student visa to study hospitality. On 8 October 2015 he obtained 457 visa to work as a chef. His wife was granted a visa at that time and joined him in Australia. On 20 August 2015 he obtained a 186 visa. He now has two children.

17. The applicant has provided copies of pay slips issued in October 2016 which indicate that he earns about $900 a week after tax.  He also provided evidence of $11,563 in savings at the time his brother applied for a visitor visa.

18. During the hearing the Tribunal asked the review applicant about his brother’s situation in Bangladesh. He said that his brother had been operating a shop selling electrical goods for about three or four years. Prior to opening the shop he was a high school student.  When asked he confirmed that his brother went straight from high school to opening his business. He said that his parents had assisted his brother financially to establish the business and he had also contributed. He said the business was doing well and his brother made about $2,000 a month from the business. He had no employees, but his wife and parents worked in the business and would take care of the shop in his absence.  After taking evidence from the visa applicant the Tribunal asked the review applicant to comment on the discrepancies between his evidence and the evidence given by his brother. He said he did not know much about his brother’s business and his evidence was based on guesses.

19. At the hearing the Tribunal noted that the visa applicant’s application had been refused by the delegate because the delegate was not satisfied that he intended to remain in Australia temporarily and asked for the review applicant’s comments.  He said that his brother had a good business and would return to Bangladesh to be with his wife and because he was responsible for his parents.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

21. The issue in this case is whether cl.600.211 is met. This clause 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.

22. 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)).  As the visa applicant has not previously visited Australia it is not possible to assess him against this criterion.

23. 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.

24. After considering all of the relevant evidence the Tribunal is not satisfied that the visa applicant will comply with condition 8531.

25. The Tribunal found the evidence given by the visa applicant and the review applicant regarding the visa applicant’s employment and financial situation in Bangladesh confused and unconvincing.  According to the visa applicant he has owned and operated an electrical goods shop for about 12 months and employs two people. He also claims that in the 3 or 4 years between finishing high school and opening the shop he occasionally earned money playing cricket. This is at odds with the evidence provided by the review applicant who stated that his brother had operated the electrical goods business for 3 or 4 years and has no employees. The review applicant attempted to explain this discrepancy by stating that he did not know much about his brother’s business and his evidence was based on guesses. I do not accept that the review applicant would have been unaware of when his brother established his business, particularly as he claims to have provided him with some support to enable him to open the shop.

26. In addition, the only evidence provided by the visa applicant regarding his financial situation in Bangladesh is the bank statement dated 1 September 2016 which shows only one deposit, which was in cash and occurred on the day that he obtained a copy of a bank statement to support his visa application. Given the timing of the deposit the Tribunal and the problems with the evidence given by the review applicant set out above, the Tribunal does not accept that the money was deposited by the visa applicant’s father to fund his new business.  And even if the Tribunal accepted this claim (which it does not), despite being asked on 19 April 2017 to provide updated information regarding his financial and employment situation, the visa applicant has not provided any documentary evidence which supports his claim that he earns about $1600 a month from an electrical goods store or demonstrates that he currently earns an income from any source. In the absence of any such evidence the Tribunal does not accept that the visa applicant derives a significant income from an electrical goods shop in Bangladesh.

27. There is no credible evidence before the Tribunal which indicates that the visa applicant operates a successful business or that he earns an income from any source in Bangladesh. According to the evidence he has no more than a high school education and for a number of years earned only an occasional income playing cricket. There is nothing in the evidence which suggests that the visa applicant has strong financial or business reasons for returning to Bangladesh. On the contrary, there appear to be strong financial incentives for him to attempt to remain in Australia where he could almost certainly earn more money than he could in Bangladesh.

28. It has been submitted that the fact that the visa applicant’s wife will remain in Bangladesh provides a strong incentive for him to return to his homeland. While the Tribunal acknowledges that that the fact that his wife will not accompany him to Australia provides some incentive to return to Bangladesh both the visa applicant and his wife are young any difficulty or disadvantage they might experience if the visa applicant failed to return to Bangladesh would likely be outweighed by the economic advantages which the visa applicant could likely benefit from if he remained in Australia.

29. It has also been submitted that the visa applicant has a strong incentive to return to Bangladesh because he is the only son remaining in Bangladesh and he is responsible for his parents. This does not sit well with the claim that the visa applicant’s father funded his business and the claim that his parents will manage his business in his absence. The Tribunal also notes that one of the visa applicant’s brothers is in Australia temporarily as a student and presumably will return to Bangladesh at the end of his studies. The Tribunal does not accept that the fact that the visa applicant’s parents will remain in Bangladesh provides a strong incentive for him to comply with condition 8531 and leave Australia at the end of his permitted stay.

30. Finally it has been submitted that the visa applicant owns property in Bangladesh. However, there is no evidence which suggests that continued ownership or sale of this property requires the visa applicant’s presence in Bangladesh and the Tribunal does not accept that ownership of this property provides a strong incentive for him to return to Bangladesh.

31. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In particular the Tribunal has noted that the visa applicant’s mother complied with the conditions on her visa when she visited Australia in 2015. However, her circumstances are not comparable to those of the visa applicant.  She is a 53 year old woman with a husband, children and grandchildren in Bangladesh and no prospect of employment in Australia. The Tribunal does not accept that the visa applicant’s mother’s migration history is indicative of the likely behaviour of the visa applicant if he were granted a visa.

32. 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

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

    Roslyn Smidt
    Member