Teh (Migration)

[2021] AATA 4755

Teh (Migration) [2021] AATA 4755 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phaik Yoong Teh

CASE NUMBER:  2013393

HOME AFFAIRS REFERENCE(S):          BCC2020/1464702

MEMBER:Naomi Schmitz

DATE:3 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 03 December 2021 at 4:30pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – COVID-19 restrictions reduced touring opportunities – uncle and aunt in Australia, mother and extended family in home country – no employment, but savings and superannuation – short, compliant travel to other countries – COVID-19 situation in home country – period originally applied for now passed – decision under review affirmed

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 18 August 2020 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 30 April 2020. 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 visa 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 genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.  

5. The visa applicant appeared before the Tribunal on 11 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. After this matter was constituted to the Tribunal Member on 15 October 2021, the Tribunal wrote to the visa applicant and requested updated information and records to be provided by 4 November 2021 including; a copy of the visa applicant’s passport ensuring that all passport country stamps are visible; an itemised list of all the countries the visa applicant has travelled to, if any, including the arrival and departure dates; evidence of employment in the visa applicant’s home country, if any, including recent evidence of pay slips and taxation returns; evidence of property ownership in the visa applicant’s home country, for example a certificate of title or rates notice and approximate value of the property; if the visa applicant is currently leasing a property in her home country, evidence of the duration of the lease; any updated information and records about the visa applicant’s assets and financial situation in her home country and Australia, such as money in bank accounts; and any other information relevant to the visa applicant’s activities, commitments or relationships in her home country, including family which would act as an incentive to return.

8. In response on 3 November 2021, the visa applicant provided the following documentation: a copy of the visa applicant’s passport; an itemised list of countries the visa applicant has travelled to; her taxation returns for the years 2015, 2016, 2017 and 2018; no tax returns exist for 2019 due to the visa applicant not earning enough money; a financial document showing the visa applicant earned RM25,250.97 in 2019; a Commonwealth Bank of Australia (CBA) statement dated 3 November 2021 showing a closing balance of $28,182AUD; a 2021 superannuation statement showing a balance of RM95,282; a screen shot of the visa applicant’s Maybank account with RM48,184.53; the visa applicant’s brother’s rental agreement; a self-quarantine direction notice and the visa applicant’s 2020 flight itinerary from Melbourne to Perth to Singapore to Kuala Lumpur.

9. The visa applicant is a 36-year-old citizen of Malaysia. 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.

10. On 30 April 2020, the visa applicant requested a further stay of six months until 30 October 2020.

11. In the present case, the visa applicant seeks the visa for the purposes of travelling in Australia and to find a return flight to Malaysia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

12. At the hearing the visa applicant stated she wanted to stay a further six months in Australia, to allow time to travel due to the COIVD-19 lockdown in Melbourne which had prevented her from travelling. When asked by the Tribunal Member what she had done since arriving in Australia on 7 February 2020, she stated she had stayed home during the pandemic as she was ‘scared’ and in ‘fear’. She also wanted to find a ‘safe way home’ due to a previous experience, where she had attempted to leave Australia, but when in Perth, was issued with a quarantine direction, and forced to return to Melbourne, missing an interconnecting flight from Perth to Singapore and Kula Lumpur. In support the visa applicant provided a quarantine direction notice. The Tribunal asked the visa applicant why she had flown to Perth who had closed its borders at the time, rather than fly directly from Melbourne to Malaysia. The visa applicant was unable to provide a credible explanation.

13. 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)).

14. Travel movement records show that the visa applicant has been granted one visitor visa and one bridging visa which she remains on and has been compliant. The Tribunal places some weight on the visa applicant’s substantial compliance with the conditions of his last substantive visa and bridging visa. (cl.600.211(a).

15. 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.

16. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given she has applied for a visitor visa for the purposes of travel and declared that she would not undertake any studies or work during the currency of her visitor visa. The Tribunal is also satisfied based on the financial evidence submitted that the visa applicant has sufficient finances to support herself. The Tribunal also accepts that she will be accommodated by her uncle and aunt in Cranbourne, Victoria.

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

18. The Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside of Malaysia. The visa applicant has spent four days in Cambodia in February 2018, two days in Thailand in February 2018 and July 2018 and five days in Singapore 2019. In support the visa applicant provided passport country stamps. She also compiled a list of countries she had travelled to detailing the arrival and departure dates. The Tribunal accepts that the visa applicant has undertaken the above travel, however places limited favourable weight on the travel due to the short durations.

19. The Tribunal asked the visa applicant what incentives she had to return to Malaysia at the end of her proposed visit. The visa applicant stated she has a mother and one brother who reside in Penang, Malaysia and another brother who lives in Kuala Lumpur. Prior to travelling to Australia, she resided in Penang in her brother’s home with her mother. She also has numerous cousins, aunties and uncles who live in Malaysia. She stated her father is now deceased. The visa applicant has a sister who resides in Singapore and she has a cousin who resides in Cambodia. The visa applicant has an uncle and aunt who reside in Victoria and who she has stayed with since her arrival in Australia on 7 February 2020.

20. The visa applicant does not own any property. She is single and has never been married. She does not have any children. The visa applicant is currently unemployed, last working in Malaysia in February 2020. At the hearing she stated she resigned prior to travelling to Australia and will have to apply for a new job when she returns to Malaysia. The visa applicant has RM95,282.19 equivalent to $31,751.92AUD in superannuation. She gave evidence that she could access this money if she wanted to study or purchase a property or motor vehicle. She also RM48,184.53 equivalent to 16,056.73AUD in a Malaysian bank account. She also has two investment bank accounts which receive high interest including an account containing RM2,613.62 equivalent to $870.00AUD and an account containing RM4,597.14 equivalent to $1,531.70AUD. She also has $28,182.79AUD in a CBA account which is money sent from her family in Malaysia. The visa applicant stated her family send money to her uncle which is then passed to her. The visa applicant also owns a scooter.

21. While the Tribunal acknowledges that the visa applicant’s mother and two brothers may offer some inducement to return to Malaysia, the Tribunal is not satisfied that their presence sufficiently demonstrates that the visa applicant intends a genuine temporary stay in Australia. The visa applicant has no employment in Malaysia and therefore does not have a strong economic incentive to return. The Tribunal accepts that the visa applicant has savings, including an available superannuation fund, however places limited weight on the money, as it could be easily transferred, withdrawn or accessed remotely from Australia. This is supported by the visa applicant’s viva voce evidence, where she admitted to receiving funds offshore from her family in Malaysia. Limited weight is also placed on the visa applicant’s motor scooter, given it can be easily sold or transferred and she has not used it for approximately two years.

22. The Tribunal has also taken into account the situation of a visa applicant’s home country, Malaysia, which may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which discusses the impact of COVID-19 in Malaysia. Although the Malaysian government’s response to COVID-19 including lockdown measures successfully reduced the virus in the early stages, however large clusters have contributed to a rise in COVID-19 cases. As of 26 June 2021, there were 722,659 confirmed cases and 4,803 deaths and in January 2021 there were more than 5000 cases per day. The Tribunal Member contrasted this to Australia, which has far less COVID-19 related cases and deaths. The report also referred to the fact that although there are no laws or constitutional provisions that directly discriminate against Indian or Chinese Malaysians, however in practice they are affected by the constitutional preference for Bumiputera which consequently acts as a barrier for employment particularly in the civil service and ownership laws.

23. In response the visa applicant stated that the COVID-19 pandemic in Malaysia is ‘severe’ and that there are a lot of cases. She also stated that her family would prefer if she remained in Australia, as they fear she may be in danger if she returned to Malaysia, as Australia has less COVID-19 cases. The visa applicant stated workwise, it is easy for her to find employment as she has a Bachelor of Finance degree and stated that ‘employers prefer to hire Chinese rather than other ethnic groups because they [Chinese] work more efficiency’. The Tribunal accepts the visa applicant’s evidence.

24. The visa applicant gave evidence that she did not have any well-founded fear of any form of persecution in Malaysia due to her race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is Chinese Malay and of the Buddhist faith. The Tribunal accepts the visa applicant’s evidence.

25. The Tribunal has considered all matters carefully. The visa applicant has a valid reason to apply for the visa. The Tribunal places some weight on the visa applicant’s substantial compliance with the conditions of her last substantive visa and bridging visa. Limited favourable weight is placed on the visa applicant’s prior travel due to the short durations. The visa applicant has no property or significant assets. Although the visa applicant has savings, limited weight is placed on them as they can be easily transferred or remotely accessed from within Australia. This is supported by the visa applicant’s own evidence, where she admitted to her family sending money offshore from Malaysia to Australia. The visa applicant has no employment in Malaysia which would act as a strong economic incentive to return. While the Tribunal acknowledges that the visa applicant’s mother and two brothers may offer some inducement to return to Malaysia, the Tribunal is not satisfied that their presence sufficiently demonstrates that the visa applicant intends a genuine temporary stay in Australia.

26. The Tribunal is also concerned that the current COVID-19 situation in Malaysia my constitute a very strong disincentive for the visa applicant to return. This is supported by the visa applicant’s oral evidence of fearing the pandemic and her admission that her family do not want her to return to Malaysia due to the dangers of COVID-19. The Tribunal further notes that the visa applicant has not re-booked a flight home as she ‘wants to find a safe way to return’. The Tribunal has concerns that she does not have a genuine intention to stay temporarily given the COVID-19 situation is unlikely to resolve or improve within six months such that she would return at the end of her proposed stay.

27. In assessing the visa applicant’s intentions for her visit, the Tribunal notes that at the time of application on 30 April 2020, the visa applicant sought a further six month stay until 30 October 2020. On 11 November 2021, at the hearing the visa applicant sought a six month stay until May 2022. The Tribunal accepts that since her arrival there at times have been COVID-19 restrictions which have inhibited travel, nevertheless, there have been travel opportunities. The Tribunal has considered the visa applicant’s evidence that she has not explored Australia and has not travelled as foreshadowed in her visa application. During the hearing the visa applicant did not provide any evidence of any proposed travel or produce any documentary evidence.

28. Balancing the evidence above it appears that the visa applicant is seeking to prolong her stay indefinitely and that she does not have a genuine intention of remaining temporarily in Australia.

29. 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

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

    Naomi Schmitz
    Member