UDDIN (Migration)

[2017] AATA 303

UDDIN (Migration) [2017] AATA 303 (24 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr SM REAZ UDDIN

VISA APPLICANTS:  Mr Sm Seraz UDDIN
Mrs Syeda Rowshan MAHMUDA
Miss Sarah SERAZ

CASE NUMBER:  1613650

DIBP REFERENCE:  BCC2016/2642073

MEMBER:Rosa Gagliardi

DATE:24 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 24 February 2017 at 2:02pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine intention to stay temporarily in Australia - Family business not sufficient incentive to return - Insubstantial and probative evidence regarding applicant’s financial circumstances – No significant assets

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.211(b), cl.600.211(c), cl 600.231

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 Immigration on 25 August 2016 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 8 August 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 visas, on the basis that the visa applicants did not meet cl.600.211 because there were concerns that the visa applicants did not have a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 10 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali 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. 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 applicants seek the visas for the purposes of visiting the first named visa applicant’s brother and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   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 visa applicants have never travelled to Australia previously.  The Tribunal accepts the evidence given at hearing that the first named visa applicant has travelled to Saudi Arabia for religious purposes and abided by his conditions. 

11. The Tribunal also places weight on the fact that the first named visa applicant’s parents have visited Australia on two occasions.  At the time of hearing the sponsor’s and first named visa applicants’ parents were still in Australia but the Tribunal is prepared to accept that they have abided by their conditions on both occasions.

12. The Tribunal has also taken into account that the sponsor’s parents-in-laws have also previously travelled here and have similarly abided by their Tourist visa conditions.

13. The Tribunal has placed weight on the fact that family members overall have been compliant with the requirements of their visa conditions.  Nonetheless, the Tribunal is required to have regard to the particular characteristics of the visa applicants themselves and whether the Tribunal can be satisfied about their intentions.  Such matters as age; the fact that the first named visa applicant is travelling with his entire family; and his personal financial position are all matters that the Tribunal has taken into account in making this decision.

    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 (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.

15. The first named visa applicant is a 38 year old male.  His spouse, the second named visa applicant, is 26 years of age and their daughter is almost 3. 

16. The sponsor and the first named visa applicant are brothers and they have no other siblings.  The visa applicants reside in Khulna, Bangladesh.  They have claimed they wish to travel to Australia to visit the family of the sponsor because the sponsor’s wife had had a baby girl and they had not been with the sponsor’s family for a while and wished to see their newborn niece.  They also wanted to participate in both their nieces’ birthdays.  They sought to come to Australia for six months.  The sponsor stated that they also wanted to undertake tourist activities together as he had done with his parents, including travelling interstate.  The sponsor stated that it was difficult for him to go to Bangladesh and see his brother and family because he had little annual leave.

17. The Tribunal explained at hearing that there was little evidence of the financial position of the first named visa applicant and of any savings in his own right.  The sponsor stated that the applicant had worked for a telecommunications company but was now working for his father’s business which was a food transport company.  He also assisted his father with management of properties. 

18. In his application form 1418 the first named visa applicant declared that he had been employed for the past three years (preceding August 2016) as an Office Assistant for M/S Kamal Brothers Limited which is the first named visa applicant’s father’s business.  While extensive evidence has been submitted regarding the first named visa applicant’s father’s property holdings, limited information has been submitted about the company involving food transport or the particular business within which the first named visa applicant actually works.  For example, it is not clear that the company Kamal Brothers Limited is a registered company.

19. At hearing the sponsor argued that the reason the first named visa applicant was required to leave his former employment was because his father was getting older and needed him to assist run his financial affairs.  His father is 62 years of age and his mother is 56. 

20. The Tribunal asked the sponsor at hearing to provide, for example, the turnover for any recent financial year of his father’s company to gauge the profitability of the business. It was asserted at hearing that the food transport company alone was worth around AUD$450,000 and that the business had been in existence for 43 years because it had been handed down in the family over several generations.  The limited information submitted after the sponsor was provided a further opportunity to provide financial data, and any other relevant documents, does not persuade the Tribunal, however, that this family concern, being the food transport business represents a significant incentive for the applicant to return to Bangladesh.  This is particularly so given that the evidence that the first named visa applicant has assets or any business/employment concern that required him to be present in Bangladesh on a reasonably ongoing basis is insubstantial.

21. The Tribunal has had regard to the oral evidence that the first named visa applicant’s father had an extensive property portfolio and photos of the properties have been submitted as evidence.  The Tribunal notes that some of these properties at least are commercial properties and that associated valuations have been provided – all of which are not insubstantial. However, as put to the sponsor at hearing some of the properties were co-owned by the first named visa applicant’s father’s siblings (6 other brothers).  His father owned two properties outright.  The Tribunal does not place significant adverse weight on this matter but clearly the applicant’s claims that his father’s financial position was such that the Tribunal should place significant weight on his father’s personal wealth, is somewhat diminished, given his father has only a 7^th of a share in four properties. 

22. The sponsor was arguing that the first named visa applicant had significant responsibilities in Bangladesh to look after his father’s properties and his business, but the documentation illustrates that his father’s share of the properties is limited.  This leaves the Tribunal to question the extent to which the first named visa applicant’s responsibilities for his father’s property and business (of which little evidence has been submitted) do in fact mean that the visa applicants must return to Bangladesh so as not to jeopardise the entire enterprise and properties.

23. In terms of the first named visa applicant’s own personal financial circumstances at the time of application he submitted an Income Tax Certificate dated 26 June 2016.  This document provides limited information that would be helpful in assisting the Tribunal make an assessment about the first named visa applicant’s financial earnings over a period.  Nor does it set out the first named visa applicant’s employer or how long he has been employed.

24. In response to the Tribunal’s concerns that the evidence before it was weak, the applicant submitted another Income Tax Certificate for the assessment year 2015-2016 but the Tribunal is similarly unable to extrapolate from this document the first named visa applicant’s annual earnings over a solid period.

25. The Tribunal asked the sponsor at hearing whether the first named visa applicant held a savings account and he responded that the first named visa applicant took money out of the business as he needed it and had access to his father’s bankcard. 

26. After the hearing the first named visa applicant submitted a letter from Dutch-Bangla Bank Limited, dated 2 January 2017, certifying that the first named visa applicant, “has been maintaining a Savings account no…xxxx with our Khulna branch, Khulna satisfactorily.  So far our knowledge goes he is financially sound and solvent”.  The Tribunal places weight on this evidence although it does not provide any details about the actual financial position of the first named visa applicant.

27. In addition, bank statements from the Dutch-Bangla Bank have been submitted over several months including up until more recently.  The account has a closing balance of BDT961.163.53 Bangladeshi Taka, the equivalent of roughly AUD$16,000.  The account shows several cash deposits, as well as transfers and salary payments for several months being BDT45.000.00 per month; the equivalent of about AUD$730 per month.  If these transactions relate to the first named visa applicant it would mean that his annual income would roughly be AUD$8,760. 

28. Oddly, however, the statements submitted do not have any identifying features, so it is not clear to the Tribunal precisely to whom the account belongs.  The account number is not visible so it is not possible for the Tribunal to match this account against the number provided above by the Dutch-Bangla Bank.  Also, it is not clear if, for example, this is a business account and who precisely is receiving the salary.  For the purposes of this review, the Tribunal is prepared to accept that the account belongs to the first named visa applicant.  While the Tribunal does not consider that in relative terms the first named visa applicant’s earnings are insignificant, particularly his savings, the Tribunal notes that the account appears to be propped up by periodic significant transfers from another account, including cash deposits. 

29. Even allowing for this being the first named visa applicant’s savings account, the Tribunal is concerned that the first named visa applicant’s annual income relative to earnings in Australia is low. 

30. The sponsor has argued that he and the first named visa applicant stand to inherit their father’s business and his properties and the Tribunal accepts this.  However, given the limited evidence provided about the first named visa applicant’s father’s food transport business, the Tribunal can only place limited weight on any future financial position the first named visa applicant is to inherit, particularly when assets such as several properties and a business could easily be liquidated.

31. The Tribunal considers that 6 months is a long time to be without an income for many working persons with a young child to raise.  Furthermore, the first named visa applicant’s spouse undertakes home duties and does not receive an income.  The Tribunal has taken into account the assurances that the sponsor would look after the visa applicants as while he had a mortgage, two children and a spouse who was also working and earning roughly $63,000 per annum as he was, he also had the ability to redraw up to $35,000 from his mortgage. 

32. The Tribunal places some weight on this oral evidence but has concerns that if the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, that is, to see family, it is unclear why the first named visa applicant would take 6 months of his productive life to do this and could not do so within a much shorter period. 

33. The first named visa applicant is 38 years of age and is at an age where he would be looking to maximise his earning capacity.  It would be expected that with a three year old and a spouse to support that he would be minimising any time out of work.  This raises concerns in the mind of the Tribunal, therefore, as to whether the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted and the extent to which the first named visa applicant’s work represents a compelling need for him and his family to return to Bangladesh. 

34. The sponsor has written in a letter to the Tribunal that it was not appropriate that the department focussed only on the fact that the first named visa applicant’s employment was as a clerical officer and was it the case that only doctors and CEOs of companies were permitted to travel to Australia.  This, however, is a misrepresentation of the concerns held by the department and those held by the Tribunal.  The central concern is that there is limited evidence to support the case being put forward, which generally is that while the first named visa applicant does not have significant assets himself his family’s (being his parents’) circumstances are such that he can afford to be without an income for 6 months. 

    cl.600.211(c)

35. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The sponsor has argued that Khulna, the area where the visa applicants reside, is peaceful and there would be no reason that they would be fleeing persecution.  The Tribunal has also not been able to locate any country information that the area is subject to any particular security concern.  The Tribunal places weight on this matter, however, given its concerns generally about the insubstantial and probative evidence submitted about the first named visa applicant’s financial circumstances, and his need to support a family, the situation in Khulna Bangladesh does not outweigh these concerns.

36. For the above reasons the Tribunal is not 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 not met.

    DECISION

37. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Rosa Gagliardi
    Member