Rahaman (Migration)

[2021] AATA 409

Rahaman (Migration) [2021] AATA 409 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MD Matiur Rahaman

VISA APPLICANT:  Mrs Marzia Sultana Monira

CASE NUMBER:  1818017

HOME AFFAIRS REFERENCE:               BCC2018/2236433

MEMBER:Rosa Gagliardi

DATE:21 January 2021

PLACE OF DECISION:  Australian Capital Territory

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 21 January 2021 at 1:47pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visiting husband and child – compliance history – travel history – intention to comply with visa conditions – ties to home country – financial ties – desire to reside permanently in Australia – 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 13 June 2018 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 24 May 2018. 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.

5. The review applicant, being the spouse of the applicant, appeared before the Tribunal by phone on 29 October 2020 to give evidence and present arguments. Currently, the review applicant is in Bangladesh in relation to his business activities there, and his movement records show that he has been in Bangladesh since 2019, even though prior to that he had travelled to Australia frequently in relation to his import/export business.  The Tribunal also received oral evidence from the applicant, also by phone from Bangladesh.

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 seeks the visa for the purposes of a brief visit with her husband and child. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

   cl.600.211(a)

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 applicant has not travelled to Australia previously, however her passport details confirm, as claimed at hearing, that she has travelled widely, that is 19 times across 8 countries such as Singapore, Malaysia, Indonesia, Dubai, and United Arab Emirates, for example.

11. The Tribunal places some weight on this information demonstrating compliance with her visitor visa conditions but notes that it would appear that none of these countries would represent a permanent destination point such as Australia.  While the Tribunal accepts that the applicant’s spouse is currently living and working in Bangladesh with the applicant and their 2 year old child, the Tribunal considers that it is more likely than not that eventually the family will settle in Australia given the opportunities it would offer the family unit. 

12. As such, the Tribunal places some weight on the applicant’s varied travel, albeit it is limited because the sponsor is an Australian citizen and it is unlikely that the applicant’s husband expects to relinquish his Australian citizenship altogether and remain in Bangladesh indefinitely.

13. Nonetheless, the Tribunal does not consider that the applicant’s long-term aspirations detract from the applicant’s current genuine intention to visit Australia temporarily for the purpose for which the visa is granted.

    cl.600.211(b)

14. 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:

    ·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.

15. The applicant is not working but the evidence submitted indicates that she has access to rental income from properties from her father.  Evidence has also been submitted to show that her family in Bangladesh, Dhaka, are well-to-do.  The applicant also has a two year old child who will travel with her and her spouse to Australia, so it is unlikely that she will come to Australia to work, particularly when it is claimed that the parties only intend to stay here for the brief period of four weeks.

16. Similarly, the Tribunal is satisfied that the applicant is not travelling to Australia to further her studies.  From the evidence at hearing it is evident that the applicant sees her role as the care provider to her child and husband. 

17. The review applicant is an Australian citizen who went to Bangladesh to live on a more permanent basis for business in 2016.  The review applicant has a business based in Bangladesh which involves importing and exporting, including to Australia.  The Tribunal has sighted veritable documentation in relation to this business he is running from Bangladesh, even though he is an Australian citizen.  The review applicant has married the applicant in Bangladesh.  At the time of application, the review applicant stated that he just wanted to bring his bride to Australia to see where he had studied, lived and worked.   After the application was lodged, they had a son together and they are hoping the child can travel with them to Australia.

18. At the time of decision, the motivation for the visit remains the same; that is, for the applicant to visit Australia and to acquaint herself with the country in which the review applicant has lived, and in which she may also live in the longer-term.  In addition, the applicant would like his mother who has travelled previously to Australia to visit also.  He had previously accompanied his mother and wanted, if possible, to do so again.

19. As yet the applicant and the review applicant have not applied for a Partner visa.  On the face of it, this could be cause for concern about the intentions of the applicant and whether she is intending to lodge a Partner visa application onshore, for example.   Nonetheless, the Tribunal considers it implausible that the applicant, given her and her husband’s financial status, would move to Australia permanently under the guise of a Visitor visa to defray the costs of lodging a Partner visa application offshore.

20. The Tribunal accepts that the parties have not, as yet, lodged a Partner visa for the applicant and review applicant to settle in Australia as it is consistent with their desire to consolidate their business and family in Bangladesh, with thoughts of moving to Australia much further down the track.  The Tribunal finds that the fact they have not attempted to achieve a migration outcome quickly for the applicant, is consistent with the parties’ claims that they simply wanted to visit Australia on this occasion.  Further, the evidence demonstrates that their ties to Bangladesh are so strong as to outweigh any, either material or affective, they might have in Australia.  The applicant stated that she was close to her family and was not ready for a permanent move overseas.  Her family also were not prepared to see her small family move on a permanent basis overseas at the present time.  The Tribunal found this evidence credible and there is little before the Tribunal to indicate that the applicant and her family are attempting a permanent move to Australia on this occasion.

21. In addition to these considerations the Tribunal takes into account that while the applicant is currently not working, the convincing evidence submitted demonstrates that she comes from an entrepreneurial family who own a clothing manufacturing establishment.  As a result, the applicant has been gifted properties by her father from which the applicant derives an income (evidence of financial situation sighted by Tribunal).  The Tribunal is satisfied therefore that the applicant’s connection to her heritage and culture in Bangladesh, together with her financial ties, indicate that the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

22. The review applicant stated that he wanted to accompany the applicant as she would not be able to get around on her own in a foreign country and the Tribunal accepts that this is the case.  It can be assumed that if the applicant were to remain indefinitely in Australia that the review applicant would do so also.  The Tribunal considers, however, that it is highly unlikely that after spending 5 years or so building up a profitable business in Bangladesh, that he would abandon that enterprise at this current point to live in Australia. 

23. The evidence submitted in relation to the review applicant’s business demonstrates that it is a viable business and that the applicant has found conditions in Bangladesh favourable to furthering his business interests. 

24. At hearing the review applicant stated that they had not lodged a Partner visa because at this stage it was not in their thoughts to move to Australia permanently.  While he had business connections/clients in Australia, the business was being run from Bangladesh.  The review applicant did not preclude ever living in Australia permanently, but stated that currently he just wanted his wife to come with him for a visit.  The Tribunal is satisfied that the review applicant’s ties to Bangladesh are significant and a strong incentive for him to return there.  Given the Tribunal accepts that the applicant will follow her husband where-ever he may be, it follows that her ties to her home country are also significant and that she will return within the terms of her visa.

    cl.600.211(c)

25. The Tribunal has also considered all other relevant matters (cl 600.211(c)).   The review applicant gave spontaneous evidence at hearing that in Australia they would try to stay with members of the Bangladeshi community if they could, as it would be costly to stay in a hotel for a month, as well as impractical for the child.  The Tribunal considers that the fact the review applicant does not have a dwelling in Australia would indicate that the couple and child would only be coming to Australia temporarily and reinforces the Tribunal’s views that the applicant’s and review applicant’s ties to Bangladesh at the present time outweigh those in Australia.

    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.

    DECISION

27. 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.

    Rosa Gagliardi
    Member