Maung (Migration)

[2024] AATA 1025

Maung (Migration) [2024] AATA 1025 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr San Shwe Maung

VISA APPLICANT:  Mr Tin Shwe

CASE NUMBER:  2301229

HOME AFFAIRS REFERENCE(S):          BCC2022/3948235

MEMBER:Alison Murphy

DATE:24 April 2024

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 April 2024 at 4:37pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visit – family members in home country and Australia – political and security situation in Myanmar – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 23 November 2022 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 22 September 2022. 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 applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 23 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the authorised recipient, Ms Mie Mie Aye Zan who is the daughter of the visa applicant and the sister of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant is an 83-year-old man from Myanmar who seeks the visa for the purposes of visiting his two adult children 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.

9. 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)).

10. The visa applicant previously travelled to Australia in 2019. The Department’s movement records show that he entered as the holder of a visitor visa and that he departed Australia after seven weeks, well prior to the expiry of that visa. There is nothing in the delegate’s decision or the other material before the Tribunal to suggest that he did not comply with the conditions of that visa. The Tribunal is satisfied he complied substantially with the conditions of his previous visa.

11. 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

12. There is no information before the Tribunal that would suggest that the visa applicant would seek to work, study or engage in training in Australia. Rather he is an 83-year-old father and grandfather in receipt of a government pension who lives with his wife in a property he holds on a sixty-year lease in Yangon. Therefore the Tribunal is satisfied that the applicant will comply with visa conditions 8101 and 8201.

13. The Tribunal has also considered all other relevant matters (cl 600.211(c)). As noted in the delegate’s decision, the delegate considered that the visa applicant may seek to remain in Australia permanently if he is granted the visa. In making that assessment the delegate accepted that the applicant had travelled to Australia in the past and that he had close family members remaining in Myanmar and gave those matters some weight as incentives for the applicant to return to Myanmar. However the delegate ultimately placed greater weight on the political and civil turmoil in Myanmar as well as the presence of two of the applicant’s children in Australia, considering those factors may act as a stronger incentive for the applicant to remain in Australia rather than return to Myanmar.

14. The Tribunal accepts that the visa applicant is married and has four children, two of whom reside in Myanmar and two of whom reside in Australia. He ordinarily resides with his wife in Yangon, but his wife is currently visiting their two children in Australia. Mr Shwe gave evidence that they had planned for their father to stay longer in Australia during his 2019 visit, but he was comparatively isolated in Australia compared to Yangon where he has a wide circle of family and friends and he became bored and wanted to return home after seven weeks. It is the wish of his wife and their children that he visit his family members in Australia, before accompanying his wife home. The Tribunal considers that the visa applicant’s wife, children and home in Myanmar are significant incentives for his return at the end of the visa period.

15. The applicant’s children have given evidence that their father is now retired, but was formerly an employee of Myanmar’s Department of Agriculture and Mechanisation and he receives a government pension. The Tribunal has been provided with a bank card from the Myanma Economic Bank (MEB) which Ms Zan states is only provided to those in receipt of a government pension in that country. MEB’s website confirms that it has operated government pension payments to those entitled to receive them since 1972 and the Tribunal accepts Ms Zan’s evidence in that regard[1]. In any case the bank statements provided by the review applicant and Ms Zan indicate that they have sufficient funds to support the visa applicant while he is here, as they have supported their mother during her current visit and previously their father when he visited in 2019.

    [1] MEB – Myanma Economic Bank

16. The delegate was understandably concerned about the current political and security situation in Myanmar. As I discussed with the review applicant and Ms Zan at hearing, DFAT reports that since the military coup in 2021, there has been an armed struggle between the Myanmar military and the National Unity Government in hiding which has resulted in widespread violence, including in Yangon. The once relatively peaceful ‘Bamar heartland’, which includes Yangon, has seen a sharp rise in violence since the coup, as local PDFs and ethnic armed organisations clash with security forces, and the military regime targets civilians they perceive as supporting their enemies.[2]

    [2] DFAT DFAT Country Information Report: Myanmar 11 November 2022

17. Mr Shwe and Ms Zan acknowledged the severity of the situation in Myanmar, telling the Tribunal that prior to COVID they had travelled back to Myanmar to see their family members there every couple of years. Ms Zan stated that as foreign nationals who had not lived in Myanmar for many years it was currently too dangerous for them to travel to visit their parents and sisters as they have done in the past. She said it was their understanding that it not much of a problem for Myanmar residents to leave and return, but that foreign nationals were attracting a high degree of scrutiny and subjected to arbitrary and unlawful treatment by the military junta which is why it is not safe for she or the review applicant to take their families back to Myanmar at present. She said as elderly residents of Yangon, she did not think they would be of interest to the military junta who were more interested in the movements of young people. The Tribunal notes Ms Zan’s understanding of the security situation to be consistent with the DFAT report, which reports a high level of scrutiny of people arriving and departing Myanmar and states that young persons are presumed by the military to be associated with the resistance movement, regardless of their actual involvement.[3]

    [3] Ibid

18. When I asked why their mother hadn’t yet returned to Myanmar, Ms Zan gave evidence that her mother had only intended to be in Australia for a few months. The review applicant had travelled to Myanmar to bring their mother to Australia for a visit in January 2020, but shortly afterwards she became stranded in Australia by COVID restrictions. Ms Zan had intended to accompany her mother back to Myanmar a few months later and they had purchased a one way ticket for her mother and a return ticket for Ms Zan, but then COVID hit and they were not able to use those tickets. Ms Zan said her mother had wanted to return to Myanmar for some time now, but the family had been waiting to hear the outcome of the current review which had taken almost two years to date. The family are aware that their mother would likely be granted asylum in Australia if she sought it, but that she did not want to do so and was anxious to return to her home and family in Myanmar.

19. Ms Zan gave evidence that she and the review applicant were very anxious to see their father for may well be the last time given his age and to have him to spend time with his Australian grandchildren. The review applicant gave evidence that his own wife had taken their children to stay with his parents several years ago and they had ended up living with them for two years, creating a deep relationship between his parents and children. He said his parents were in good health, but realistically would be unable to travel for very much longer. Ms Zan said she and her brother feared that if her mother returns to Myanmar before her father arrives in Australia, her father will refuse to leave Myanmar and his Australian citizen children and grandchildren will not see him before he dies. The Tribunal accepts that the visa applicant’s advanced age constitutes compelling and compassionate reasons why the visa should be granted, particularly given the security situation prevents the review applicant and Ms Zan from travelling to Myanmar as they have done in the past.

20. Overall the Tribunal is satisfied that the visa applicant has significant incentives to return to Myanmar, being his wife and their established home and their two adult daughters in that country. His Australian citizen adult children have sufficient funds to support him during his stay as they have done in the past. Their evidence about their own travel and those of their parents is supported by the Department’s movement records and the Tribunal notes the visa applicant’s wife has retained her lawful status in Australia throughout her current stay. While the security situation in Myanmar is a disincentive to return, the Tribunal accepts that Yangon remains relatively safe compared to other parts of Myanmar and the visa applicant has lived through many decades of conflict in that country without seeking to join his children in Australia. The visa applicant has travelled to Australia in the past to visit his family here before returning home and the Tribunal is satisfied that it is his genuine intention to do so again.

21. 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

22. 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.

    Alison Murphy
    Member