Oo (Migration)

[2024] AATA 3186

Oo (Migration) [2024] AATA 3186 (5 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mon Mon Oo

VISA APPLICANT:  Mrs Kyi Kyi Mar

CASE NUMBER:  2308009

HOME AFFAIRS REFERENCE(S): BCC2023/2531120 BCC20232531120

MEMBER:Rachel Da Costa

DATE:5 August 2024

PLACE OF DECISION:  Sydney

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 05 August 2024 at 11:00am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – substantial compliance with last visa – intention to comply with visa conditions – no work condition – no study condition – other relevant matters – economic and security situation in Myanmar – jurisdiction – standing to apply for review – decision under review remitted

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

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 19 May 2023 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 26 April 2023. 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 has a genuine intention to remain temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant, who is the visa applicant’s daughter, appeared before the Tribunal on 25 July 2024 to give evidence and present arguments via the Microsoft Teams videoconference platform (MS Teams). The visa applicant also joined the hearing from Myanmar using MS Teams during the Tribunal’s opening remarks. After receiving oral evidence from the review applicant and her husband, the Tribunal decided it did not need to receive oral evidence from the visa 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.

   CLAIMS AND EVIDENCE

   Background

7. In her Visitor visa application form, the visa applicant provides the following relevant information. She is a 63-year-old citizen of Myanmar and she is not a citizen of any other country. She is widowed. She lives in Ward 7/W, Tharketa TSP, Yangon, Myanmar.

8. In Myanmar, she has an adult son, a brother and a sister. In Australia, she has her Australian Permanent Resident daughter (who is the review applicant), her Australian citizen son-in-law, and their three-year-old daughter, who is her granddaughter.

9. The visa applicant works as a seamstress and flower seller for Christian, Buddhist and Hindu altars in her ward that do not need municipal registration. Her daughter and son-in-law will cover all the expenses of her trip, including travel, accommodation and insurance.

10. There is no specific date for her to be in Australia for her visit and she would like to stay for up to three months. She will not study in Australia and she agrees to depart Australia on or before the expiry period of her visa.

    Documents before the Tribunal

11. The Tribunal has the Departmental and Tribunal files before it which include the following relevant documents, including documents provided by the visa applicant and review applicant:

    ·     The delegate’s decision, a copy of which was provided by the review applicant to the Tribunal;

    ·     Commonwealth Bank balance statement dated 2 March 2023 showing the review applicant’s husband has a credit balance of $61,174.74;

    ·     Bank books from KBZ Bank in Myanmar showing the visa applicant has two bank accounts, one of which is held jointly with her son, and both of which contain modest amounts of funds as at March 2023;

    ·     Original Myanmar (with certified English translation) “Form of Visitors List” dated 14 November 2022 which shows that the visa applicant, her son and her sister live together as renters in the house whose address is given in the Visitor visa application form;

    ·     Original Myanmar (with certified English translation) “Temporary Family Household List” dated 7 May 2022 showing the visa applicant lives with her sister and son;

    ·     Letter from the review applicant dated 10 March 2023 inviting the visa applicant to visit Australia and confirming she and her husband will meet all the expenses;

    ·     Visa applicant’s Myanmar citizenship card (pink) and certified English translation;

    ·     Review applicant’s Myanmar birth certificate and certified English translation, showing her mother is the visa applicant;

    ·     New South Wales birth certificate of the review applicant’s daughter;

    ·     Residential tenancy agreement of the review applicant and her husband dated 4 April 2023 showing they rent their current accommodation and they have permission for up to 4 people to ordinarily live in the premises;

    ·     Letter dated 22 May 2023 from the visa applicant in English to the delegate responding to the delegate’s decision pointing out that she is not a politician, she has nothing to do with politics and has no intention to remain in Australia due to political circumstances in Myanmar.

12. Where relevant, these documents are referred to in more detail below.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

13. 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.

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

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)). There is no evidence before the Tribunal that the visa applicant has held a visa for Australia in the past and so there is no evidence of non-compliance.

16. 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.

17. In the hearing, the review applicant gave evidence that she and her husband and daughter live together in their rented two-bedroom apartment in Sydney. They own a car and have around $20,000 in savings and some bars of silver. The review applicant’s husband works as an Uber driver and earns around $3,000 or more per week and they receive a weekly government child benefit of about $500. The review applicant is not currently working and she is doing an English course at TAFE. The visa applicant will stay with the review applicant and her family in their apartment during her visit and they will meet all the costs of her trip, which they can afford to do.

18. The review applicant gave evidence that the visa applicant, the visa applicant’s son (the review applicant’s brother) and the visa applicant’s unmarried sister live together in rental premises in Yangon. The visa applicant is a widow and she receives a government pension due to her deceased husband’s role with the Port Authority. The review applicant and her husband also remit money to the visa applicant sometimes and the visa applicant inherited some money. The visa applicant’s son is an English tutor who teaches private students. At the moment he is doing an English course and will return to teaching soon. The Tribunal asked the review applicant whether the visa applicant would work while she is in Australia. The review applicant said she would not. She just wants to spend time with her granddaughter, she does not speak English and she is not skilled to work in Australia. In her Visitor visa application form, the visa applicant confirmed that she will not study in Australia, and there is no other evidence before the Tribunal to indicate that she intends to study or engage in training in Australia.

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The visa applicant has indicated that she wishes to visit Australia for up to three months. The review applicant indicated in the hearing that she would like the visa applicant to be able to stay for up to one year, but she was flexible about the time because she just wants the visa applicant to be able to come to Australia for a visit, provide some support to the review applicant while she does her English course, and to build a bond with her granddaughter while the child is still young. The review applicant gave evidence that the last time she saw the visa applicant was in February 2024 when she, her husband and daughter met the visa applicant and the review applicant’s brother in Thailand. They did this because the visa applicant wanted to see her granddaughter, and so the review applicant and her husband arranged and paid for this family holiday. Otherwise, they stay in contact via Facebook Messenger and other online services.

20. The Tribunal asked the review applicant how it could be satisfied that the visa applicant would abide by the conditions of her visa and return to Myanmar before the visa expires. The review applicant said that the visa applicant is a bit apprehensive about coming to Australia as it is unfamiliar, she would obey the law and only stay for the period she is permitted. The review applicant said that she and her husband obey the law in Australia, as they did in Myanmar, and they will make sure the visa applicant does the same. She said the visa applicant understands this would be just a visit to see the family and then she can return to Myanmar to her sister and son. If the visa applicant does this, the review applicant hopes the visa applicant will be able to come to visit again in the future. The Tribunal asked the review applicant what incentives the visa applicant has to return to Myanmar at the end of her stay. The review applicant explained that the visa applicant is happy in Myanmar and she is used to living there. The visa applicant’s son is single (but the visa applicant hopes he will marry) and lives with her and she would be worried about him if she was away from him for too long. The visa applicant has friends and her sister and brother in Myanmar. She does not have friends or siblings in Australia and she would be lonely here in a place that is unfamiliar to her. The visa applicant’s plan for the future is to live peacefully with her siblings in Myanmar where she can easily visit her Buddhist places of worship, listen to the priests and live her life. She just wants to come to Australia for a visit and she won’t stay too long.

21. The Tribunal referred to the difficult economic and security situation in Myanmar as described, for example, in the current DFAT Country Information Report on Myanmar.[1] The review applicant confirmed that the visa applicant has a pink identity card, which means she has full citizenship,[2] and that her religion is Buddhist. The review applicant confirmed that the visa applicant is not involved in politics in Myanmar and nor are any of her relatives in Myanmar or Australia. The review applicant explained that the cost of living has increased in Myanmar and so the visa applicant has had to reduce her expenses, but she has an income and so does her son, and they are able to manage. She said the cost of living was the main challenge for the visa applicant in Myanmar. The Tribunal asked the review applicant how the security situation in Myanmar had affected the visa applicant. She said it is more difficult to travel within the country, but in Yangon things are a bit safer than other places and as an older woman, the visa applicant is not so affected by what is going on. The review applicant also referred to the fact that sometimes the visa applicant finds it difficult to obtain the medication she takes for her high blood pressure and sometimes the internet doesn’t work.

    [1] 11 November 2022 (DFAT Report)

    [2] DFAT Report

22. The review applicant’s husband gave evidence that they have only planned a visit for the visa applicant. She will come and stay and then she will return to her family and siblings in Myanmar. The review applicant and her husband both said that the circumstance where the visa applicant comes to Australia and changes her mind about returning to Myanmar would not arise because she has no option and she is just coming for a visit. They also confirmed their understanding that if the visa applicant does not obey her visa conditions this could make it more difficult for other family members to be granted visas and visit from overseas in the future.

23. The review applicant confirmed that she would be prepared to lodge a security bond in the order of $10,000 in support of the visa application.

24. The Tribunal has considered all the evidence before it and finds that the visa applicant is well-settled in Myanmar and has strong incentives to return there at the end of her visit, including stable housing, a pension, her son and siblings, friends, the ability to easily pursue her religious practises, her familiarity with the language and her familiarity with the way of life in her country. The Tribunal has considered the evidence about the poor economic and security situation in Myanmar but it accepts the evidence of the review applicant that this does not impact the visa applicant personally to the extent that she wishes to leave Myanmar and live in Australia. The Tribunal finds that the visa applicant wants to visit her daughter and family in Australia and stay with them for a period, but she does not intend to seek permanent residency here and the review applicant and her husband would not support that.

25. Based on the information before it, the Tribunal is satisfied that the visa applicant intends to visit the review applicant and her family in Australia and she will not remain in Australia after the end of her permitted stay. The Tribunal is satisfied that she will comply with the visa conditions.

    Conclusion

26. 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.

    Jurisdiction

27. A question arose as to whether the application for review form lodged with the Tribunal had been completed correctly as it showed the person applying for review as the visa applicant but gave the review applicant’s details as the contact details and described the capacity to apply for review as “close relative”. The form also listed the review applicant as the representative to act on the visa applicant’s behalf in her capacity as a “close family member”. In all the circumstances, the Tribunal finds that the person applying for review is the review applicant, who is the visa applicant’s daughter, and she is a person who has standing to apply for review.

    DECISION

28. 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.

    Rachel Da Costa
    Member