Tun (Migration)

[2024] AATA 581

Tun (Migration) [2024] AATA 581 (13 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zay Yar Tun

VISA APPLICANT:  Mrs Nan Yin

CASE NUMBER:  2301044

HOME AFFAIRS REFERENCE(S):          BCC2023/168622

MEMBER:Paul Windsor

DATE:13 March 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 13 March 2024 at 1:27 pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting son – genuine temporary entrant and compliance with conditions – incentives to depart or remain – economic, political and security situation in home country – rental income from properties in home country and third country, and savings – previous compliant travel to Australia and two other countries where other children are permanent resident and citizen – long-term visitor pass for one country and permanent resident eligible for citizenship of the other – fourth child and siblings in other countries and no family remaining in home country – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, conditions 8101, 8201

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 26 January 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 9 January 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, having considered her personal circumstances, including past travel to other countries, against the current economic, political and security situation in her home country of Myanmar, the delegate was not satisfied that she had provided sufficient evidence to demonstrate ‘any ties’ she has in Myanmar which would ensure she abided by the conditions of the visa and only stayed temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant sought review of this decision on 28 January 2023. He provided the Tribunal with a copy of the delegate’s decision record.

6. The review applicant appeared before the Tribunal on 13 March 2024 by video conference to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mrs Nan Yin, who joined the video conference from Singapore. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. For the following reasons, the Tribunal has 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 applicant seeks the visa for the purposes of visiting her Australian permanent resident son in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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. The visa applicant indicated that she had visited Australia previously and complied with the conditions of her visa. Departmental records confirm that she arrived in Australia on a Visitor visa on 3 February 2009 and departed on 1 March 2009. At the hearing the review applicant indicated that his mother travelled with him to Australia at that time as it was when he first came to Australia on a Student visa to undertake a Bachelor’s degree at the University of Sydney. There is nothing to indicate or suggest that the visa applicant did not comply with the conditions of this visa. The Tribunal gives this factor some weight in support of her satisfying the ‘genuine intention’ requirement.  

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 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

13. The visa applicant is a 67 year old woman who has been retired for many years (she formerly ran a tailoring business in Myanmar). She supports herself through rental income from properties in Myanmar (rented for USD 2,450 per month) and Singapore. She provided evidence that she has substantial savings. Given the visa applicant’s personal circumstances, the Tribunal is satisfied that the visa applicant would abide by conditions 8101 and 8201 if granted the visa.

14. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal considers the key relevant other matters are the current economic, political and security situation in Myanmar and the visa applicant’s options to reside outside of Myanmar (other than in Australia), due to the presence of close family members in other countries.

15. The current DFAT Country Information Report indicates that the economic, political and security situation in Myanmar has deteriorated significantly since February 2021[1]. The report states that, on 1 February 2021, a military junta under the leadership of Commander in Chief Senior General Min Aung Hlaing seized control of the Myanmar Government apparatus, hours before a parliament led by the National League for Democracy (NLD) was due to convene. The junta declared the results of the election – which the NLD had won in a landslide and whose results were widely seen as credible – invalid and assumed all executive, legislative and judicial powers of the state. The country has thus become a de facto military dictatorship.

    [1] DFAT Country Information Report, Myanmar, 11 November 2022, sections 2.4-2.5, 2.8-2.10, 2.19-2.22 and 2.30-2.31.

16. The DFAT report indicates that, since the February 2021 coup, a widespread armed insurgency has emerged that seeks to attack the military regime and its officials and restore democracy to Myanmar. Within this context, the Myanmar military remains the principal armed actor in post-coup Myanmar and is overwhelmingly the main violator of human rights and international humanitarian law. The military regime has no direct control over large parts of the country, and Action on Armed Violence, an NGO, estimates at least one-third of the country is in the hands of ethnic rebel groups. The ‘Bamar heartland’, including Mandalay, Yangon, Sagaing and Magway, was once relatively peaceful, but since the coup this region has seen a sharp rise in violence, as local People’s Defence Forces and ethnic armed organisations clash with security forces, and the military regime targets civilians they perceive as supporting their enemies.

17. The report indicates that the Myanmar economy contracted by about 18 per cent in 2020-21, first as a result of COVID-19 and then the February 2021 military coup. This has had far-reaching effects on all aspects of life for most Myanmar people. In February 2022, the International Labour Organization (ILO) described the economic situation in Myanmar as a ‘multidimensional humanitarian crisis’.

18. While the country information before the Tribunal confirms that the political, security and economic situation in Myanmar has deteriorated significantly since February 2021, the evidence before the Tribunal is that the visa applicant no longer resides there. She has indicated that she divides her time between Singapore, where her eldest son has permanent resident status, and California in the USA, where her eldest daughter is a citizen. The visa applicant has held USA permanent residence status (a green card) since 2012. She indicated at the hearing that this has now been extended to 2032. When asked, she indicated she is eligible to seek USA citizenship, but has not done so to-date as she would need to study for the citizenship exam.

19. The visa applicant also has a Singapore Visitor Pass (as a consequence of her son’s permanent residence status there), valid to November 2029, which enables her to enter Singapore and stay there whenever she wishes. She owns an apartment in Singapore which she rents out when she is in the USA, which is approximately 50 per cent of the year.

20. The visa applicant is a widow and has no immediate family remaining in Myanmar. Her younger daughter is in Bangkok on a temporary business visa, where she is running her own business, and her brother and sister are living in Taiwan.

21. The review applicant is the visa applicant’s only family member living in Australia. He completed a combined Bachelor of Commerce/Law degree at Sydney University and then completed a Master’s in Business Management at the University of Technology Sydney. He subsequently was sponsored on a Temporary Work (Skilled) visa, then sponsored for permanent residence through the Employer Nomination scheme. He is now working in a senior position in a finance company in Sydney.

22. While the visa applicant indicated she has extended family in Myanmar and returned there for a month in July 2023, the Tribunal finds that she does not have to return there and consequently is not impacted by the current political, security and economic situation in Myanmar. She has an ongoing right to reside in the USA and in Singapore, where she has well established adult children, and has been spending most of her time either in the USA or in Singapore for some time now.

23. Given the available evidence, the Tribunal is satisfied that the visa applicant will not overstay a Visitor visa if granted or seek to change her visa status onshore. The Tribunal finds she simply wishes to be able to visit her son in Australia, who has recently married, as she visits her three other children who are living in the USA, Singapore and Thailand. 

24. 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

25. 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.

    Paul Windsor
    Member