Wahid (Migration)

[2023] AATA 4595

Wahid (Migration) [2023] AATA 4595 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Fabiha Wahid

VISA APPLICANT:  Ms Tashnova Wahid

CASE NUMBER:  2216342

HOME AFFAIRS REFERENCE:               BCC2022/3420985

MEMBER:L Symons

DATE:11 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 11 December 2023 at 5:06pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – past compliance with visa conditions – no immigration history – intention to comply with visa conditions – No Work condition – No Study condition – No Further Visa condition – No Further Stay condition – other relevant matters – presence of close family members in Australia – visa applicant did not attend hearing – 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 Immigration on 29 September 2022 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 to the Department of Immigration (the Department) for the visa on 25 August 2022. 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 she was not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 8 November 2022, the review applicant, who is the sister of the visa applicant, applied to the Tribunal for a review of that decision.  

5. The review applicant appeared before the Tribunal on 20 October 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 family visit. This is a purpose for which a visa in the Tourist stream may be granted.

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. The visa applicant has not previously held a substantive visa in Australia.

10. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. 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.

11. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that she works part time as a laboratory aid and earns $1,000.00 per fortnight. Her husband works in Information Technology for Aldi and earns $4,800.00 per month. They have one child who was born in 2022. They own two cars and have joint savings of approximately $30,000.00. They have no debts.

12. The review applicant gave evidence that the visa applicant will pay for her airfare and living expenses in Australia. She, her  brother and their aunt are prepared to offer her accommodation in Australia. She is planning to bring $5,000.00 spending money with her. She does not own any assets other than savings. Her parents are planning to leave their properties to her. She looks after their assets in Bangladesh. She has no debts. She has no intention of working, studying or undertaking any training in Australia.

13. The visa applicant did not give evidence at the hearing.

14. The visa applicant provided the Department with a number of supporting documents including the bio data page of her Bangladeshi passport issued on 19 January 2020 and valid until 18 January 2025, her Bangladesh National ID card issued on 7 November 2015, a Bank Asia statement dated 7 July 2022 for an account in her name showing a balance of 194,000.00 BDT, a Bank Asia statement dated 7 July 2022 for an account in her name showing a balance of 825,650.91 BDT, a Bank Asia statement dated 7 July 2022 for an account in her name showing a balance of 13,299.11 BDT, a confirmation of employment letter dated 16 July 2022 from Digital Engravers Ltd, payslips from Digital Engravers Ltd issued to her dated 3 January 2022, 1 February 2022, 2 March 2022, 5 April 2022, 5 May 2022 and 5 June 2022, a  Family Composition form dated by 1 December 2021, an undated letter of invitation from the review applicant and an ANZ Bank interim statement dated 22 August 2022 for an account in the name of the review applicant showing a balance of $21,747.32.

15. The review applicant provided the Tribunal with a number of supporting documents including a letter dated 5 September 2022 from Digital Engravers Ltd, payslips from Digital Engravers Ltd dated 15 September 2022, 16 October 2022, 14 August 2023, 14 September 2023 and 15 October 2023, receipts for the sale of the visa applicant’s jewellery dated 3 September 2022, 23 September 2022 and 7 October 2022, a Bank Asia statement dated 31 October 2022 for an account in the visa applicant’s name showing a balance of 3,325.47 BDT as of 30 December 2021, an appraisal letter dated 10 October 2023 from Digital Engravers Ltd in relation to the visa applicant, two bank statements dated 5 October 2023 (with the bank name illegible) for accounts in the name of the visa applicant showing balances of 550, 081.72 BDT and 508,085.79 BDT respectively as at 1 October 2023 and a letter dated 23 October 2023 from the visa applicant.

16. The letter dated 16 July 2022 from Digital Engravers Ltd indicates that the visa applicant was employed as a supply chain supervisor and was paid a salary of 47,500 BDT per month. The letter dated September 2022 from Digital Engravers Ltd indicates that the visa applicant was promoted to the position of supply chain manager effective from 15 September 2022 and her salary was increased to 95,000 BDT per month. The appraisal letter dated 10 October 2023 from Digital Engravers Ltd indicates that it is an appraisal of her performance over the past year and is a glowing appraisal. The payslip dated 15 October 2023 indicates that the visa applicant’s monthly salary is 103,400 BDT. The receipts from the jeweller are written in English. The letter dated 23 October 2023 from the visa applicant indicates that she sold some of her gold jewellery for 15,000,000 BDT (AU$23,000) to strengthen her personal funding for Australia.

17. As the visa applicant did not attend the hearing, the Tribunal was unable to discuss her supporting documents with her and clarify a number of matters such as whether she got another promotion or a pay rise in September 2023, why an employer in Bangladesh was writing to staff in English and issuing payslips in English, why a jeweller in Bangladesh was issuing receipts in English and why she sold some of her gold jewellery if she was only coming to Australia for a short visit.   

18. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the proposed length and purpose of her visit to Australia. In her application for a Visitor visa, she stated that she wanted the visa for two months. During the hearing, the review applicant gave evidence that she last saw the visa applicant in 2020 when she returned to Bangladesh. She has not been able to save the money to return to Bangladesh. The visa applicant wants to come to Australia as she has not met her son who is going to be 2 years old. Her eldest brother also had a child and she is eager to see them and spend some time with them.  

19. The review applicant gave evidence that the visa applicant wants to visit Australia for 1 ½ months. When asked how much leave she gets each year, she responded that she gets 4 weeks leave. She has not taken any leave. She has a lot of responsibility at work and will not be able to get leave for a long period. They depend on her and she has to be at work. They can only give her a short period of leave. She wants to visit them and return. When asked what she is planning to do during her time in Australia, she responded that they will probably go on trips. As this will be her first time in Australia, they plan to visit places in Australia. They have a cousin who lives in Mildura and relatives who live in Melbourne and plan to visit them.

20. The letter dated 16 July 2022 from Digital Engravers Ltd indicates that the visa applicant had approval to take leave for 2 months from 25 December 2022 to 25 February 2023.

21. The Tribunal asked the review applicant what incentives the visa applicant has to return to Bangladesh at the end of her holiday. She responded that their parents live in Bangladesh. They visited Australia when her brother had a second daughter. Her brother needed some help. Her mother is in her sixties and her father is in his seventies. The visa applicant looks after them and manages their properties. She is very happy in her job and wants to progress in the company. She has a strong social life and friends in Bangladesh. She is prepared to lodge a security bond to guarantee the visa applicant’s return to Bangladesh.

22. As the visa applicant did not attend the hearing, the Tribunal was unable to discuss her visa application with her, in particular, her intentions when she comes to Australia. The Tribunal raised this as an issue with the review applicant. She responded that she could provide written evidence. At the end of the hearing, she requested and was granted further time after the hearing to provide additional evidence. The Tribunal subsequently received a written statement dated 23 October 2023 from the visa applicant.

23. In her statement dated 23 October 2023, the visa applicant stated that she wished to visit Australia for a month or so in February 2024 for her nephew’s second birthday. She wants to visit her siblings and meet her nephew and niece for the first time. She plans to take four or five weeks leave and has no intention of extending her stay as her parents will be in Bangladesh during this period and she has to return to Bangladesh and resume work. Her parents live in Bangladesh for most of the year and it is her duty to look after them. She has no intention of leaving Bangladesh as it took her a long time to build her career. She also has good social bonds with extended family and friends.

24. In her written statement, the visa applicant stated that she has a convenient life in Bangladesh. She lives with her parents rent free and has use of the family car which they maintain. This enables her to save money every month. She lives close to work and people who are close to her. She helps her parents to take care of their properties as they are unable to do maintenance work on their own as they are getting old. She requested that she be granted a Visitor visa to visit her siblings, nephew and nieces.    

25. The visa applicant’s written evidence that she wants to come to Australia for four or five weeks is not consistent with her visa application where she stated that she wished to come here for 2 months or the letter dated 16 July 2022 from Digital Engravers Ltd indicating that she had been approved 2 months leave.

26. The Tribunal has also considered other relevant matters. The visa applicant is a 33 year old divorced woman who has no children. The review applicant’s evidence is that she has two brothers and one sister. Her older brother lives in Sydney and her younger brother lives in Canberra. Her parents live in Bangladesh. They have both been granted multiple entry Visitor visas that are valid for 3 years. Besides her brothers, she also has aunts and cousins who live in Australia. Her parents and extended family members like aunts and uncles live in Bangladesh. 

27. The Tribunal is of the view that the presence of her three siblings in Australia and her parents ability to live in Australia for extended periods provide the visa applicant with strong incentives to remain in Australia after the end of her permitted stay. When the Tribunal raised this as an issue with the review applicant, she responded that the visa applicant started working with her current employer in 2014 in a junior position. She worked hard to get to her current position. Her colleagues are happy with her performance and they do not want to lose her. She has a social life in Bangladesh and she will not have that if she comes here.

28. The review applicant stated that the visa applicant will never want to leave their parents. They have aged and she is their main carer. Even though her parents have multiple entry visas, they do not want to live here for a long time. On this occasion, they extended their stay to 8 months because of their young grandchildren. They usually stay for 4 months and return to Bangladesh. Her father is connected to his brothers and sisters, misses them and gets home sick. His family matters go to him for suggestions and help. If he is not there, it is difficult for them to handle situations as they depend on him. The visa applicant looks after them when they are in Bangladesh and looks after their assets.  

29. Having considered all the evidence, the Tribunal accepts that the visa applicant has the financial capacity to pay for her airfare to Australia and her living expenses in Australia for a short holiday. The Tribunal accepts that the review applicant, her older brother and an aunt are prepared to offer her accommodation in Australia. The Tribunal accepts that her long term employment provides her with some incentive to return to Bangladesh. However, she would be able to earn considerably more money in Australia. The Tribunal accepts that the presence of her parents in Bangladesh provides an incentive for her to return to Bangladesh. However, the Tribunal notes that they are spending a considerable amount of time in Australia. They have grandchildren in Australia and not in Bangladesh. The Tribunal is not satisfied that managing her parents’ properties or her social network provide sufficient incentive for her to return to Bangladesh at the end of her holiday in Australia.

30. The Tribunal has concerns in relation to the visa applicant’s intentions in coming to Australia. She was aware, or should have been aware, that her visa application was refused by the Department because the delegate was not satisfied in relation to her intentions. She had an opportunity to give oral evidence at the hearing and did not do so. No explanation was provided for why she did not give evidence at the hearing.

31. The Tribunal is of the view that the presence of several family members in Australia, in particular her only sister, her two brothers and her parents extended visits to Australia, are strong incentives for the visa applicant to remain in Australia after the end of her permitted stay. The Tribunal concludes that the incentives for the visa applicant to remain in Australia after the end of her permitted stay outweigh the incentives for her to return to Bangladesh at the end of a holiday.     

32. 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

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

    L Symons
    Member