Maung (Migration)

[2023] AATA 2710

Maung (Migration) [2023] AATA 2710 (10 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr May Maung

VISA APPLICANTS:  Mr Maung Maung
Mrs Mya Mya Win

CASE NUMBER:  2214518

HOME AFFAIRS REFERENCE(S):          BCC2022/2495723

MEMBER:Luke Hardy

DATE:10 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 10 August 2023 at 3:03pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visits – political and economic situation in Myanmar – large property ownership – family members remaining in Myanmar – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612   

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 28 September 2022 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants are two Burmese nationals residing in Yangon, Myanmar. They applied for the visas on 4 July 2022. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family 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). Relevant 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 visas, on the basis that the visa applicants did not meet cl 600.211: they failed to satisfy the delegate that they intended only to visit Australia temporarily.

5. The review applicant is the adult daughter of the review applicants. She appeared before the Tribunal, as constituted by me, on 10 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband.

6. The Tribunal hearing was conducted mainly in English with occasional help from an interpreter in the Burmese-English medium.

7. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicants seek the visas for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. 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)).

11. Both applicants have visited Australia on three prior occasions and have complied with the conditions of their visas in all circumstances. Their last visit was in 2018, prior to the Covid pandemic and the birth of the review applicants youngest child.

12. 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.

13. I accept on the evidence of compliance in the past that the visa applicants will comply with all of these conditions.

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

15. The delegate gave weight to the fact that it was more than two years since the visa applicants last visited Australia “during which time the political and economic situation in Myanmar has changed significantly.” The significance of the “two years” was that there was a military coup in February 2021. On August 2023, the review applicant made the following submission to the Tribunal in response:

    I am the daughter of the visa applicants Mr Maung Maung (Client ID 54104238276) and Mrs Mya Mya Win (Client ID 58493237605) who are citizens of Myanmar.

    Their visitor visa (subclass 600) applications have been refused. The primary reason of the refusal is the consideration by the delegated decision maker that the ongoing civil and political turmoil in Myanmar, and the worsening economic situation, provide a significant incentive for the applicant(s) to remain in Australia beyond the stated timeframe. There were further analyses of push and pull factors based on that assumption, but there was no challenge or recheck of the validity of that fundamental assumption at the individual level.

    It is obviously wrong to categorize all the citizens of whole nation as having an incentive to overstay in Australia. In my parents’ individual circumstances, they are in their 70’s and 80’s, thus well past the age of seeking better life opportunities in another country. They reside in a city, away from the regions of armed conflict. Economically, the own a 24-unit apartment complex in a prime city location. The property is worth multimillion dollars in AUD terms. They are in a very stable and comfortable personal economic condition whatever happens in political and economic landscape of the country. The high risk of fleeing long-term to another country, which the delegate assumed with a high significance, simply doesn’t exist for my parents.

    They have been to Australia 3-times recently and always follow the visa conditions.

    In my opinion, the delegate has failed to consider their age and their individualized security and economic stability adequately enough in arriving at the decision to refuse their visa applications.

    Both my husband and I are actively working GP’s with 2 young children and 2 start-up businesses which need our daily supervision. We cannot go to Myanmar for more than 1week due to these commitments. Thus, I would like my parents to come visit us before they become too frail to travel and while their youngest grandchild in Perth is still in baby stage for them to enjoy. It is unfair for them and for our young children to miss a much anticipated grandparents’ visit based on a faulty generalisation on an elderly couple with a perfect visa compliance history.

16. I have examined DFAT’s travel advice regarding travel to Myanmar[1]. It says:

    Violence, including explosions and attacks, can occur anywhere and anytime, including in Yangon. Attacks may be planned against locations that foreigners frequent, including public spaces and civilian infrastructure. Attacks are unpredictable in their location and intensity. Remain aware of the security environment at all times.

    [1] Updated 11 July 2023,

17. Whereas there have been manifestations of violence in Yangon in the last half decade, my reading of independent news sources has yielded reports of violent clashes and crackdowns in Yangon closer to the time of the 2021 coup but not in more recent times. As the review applicant attests the ongoing violence is happening largely in far-flung provinces. Assessing the material on which the delegate based conclusions about socio-political instability alongside the arguments put by the review applicant supported by independent country information, I give more weight to the latter.

    I give some cumulative weight in this matter to the visa applicants having substantial assets in Myanmar they would likely be unable to transfer abroad. I note that evidence of these assets was provided to the delegate in the original application.

18. I have considered the age of the visa applicants and the prospect of infirmity becoming an incentive to remain in Australia. The review applicant asserts that both parents are well. Any apprehension regarding infirmity as an incentive to remain here strikes me as being purely speculative. I see no reason to give any negative weight in this matter to the age of the visa applicants.

19. The delegate considered the applicants having close family members in Myanmar who would not be travelling to Australia with them and gave some weight to that factor but still found it did not amount sufficiently to an incentive for them to return. I give more cumulative weight to the same factor, having given weight to the number of times the visa applicants have returned to Myanmar from Australia in the past.

20. I note that when asked to provide “details of any significant dates on which [they needed] to be in Australia” the applicants cited 15th August 2022. Meanwhile, the review applicant has stated: “Spring and summer is [sic] a good time to visit and I will take care of [both parents] for all the travel health and daily expenses.” On the evidence before me, the date initially provided may have been perceived at the time to be advantageous to all parties, at least as a start date, but not a reason to refuse the visas in the event of its having passed.

21. I give some cumulative weight to the undertaking from the review applicant and her husband to the effect that they understand the negative impact of being party to non-compliance in a matter like this. They both acknowledged that their prospects of being able to sponsor any family member in future depends on the visa applicants complying with the visas sought, and on giving them all encouragement to do so.

22. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

23. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Luke Hardy
    Member