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SAW (Migration) [2019] AATA 1251 (18 January 2019)

Last Updated: 12 June 2019

SAW (Migration) [2019] AATA 1251 (18 January 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Miss HTWE HTWE SAW

VISA APPLICANT: Miss KYI KYI SAW

CASE NUMBER: 1731069

HOME AFFAIRS REFERENCE(S): 011758 CLD2018/715795

MEMBER: Melissa McAdam

DATE: 18 January 2019

PLACE OF DECISION: Sydney

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 18 January 2019 at 9:52am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuinely intends to stay in Australia temporarily – visa to visit siblings – significant incentives to return to home country – employment – assets – family – religion – good migration history of family – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations (Cth) 1994, Schedule 2, cls 600.211, 600.221, 600.222, 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 Immigration on 4 December 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
2. The visa applicant applied for the visa on 10 November 2017. 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 (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 visa applicant provided the following information in her visa application:
   1. She is a 62 year old single woman from Yankin in Myanmar.
   2. She wants to visit Australia between January and February 2018 for up to three months.
   100. She has three sisters, including the review applicant, and two brothers who all live in Australia. They are all Australian citizens.
   4. She has not been to Australia before because she has been looking after their sick mother. Her mother has now passed away so she would like to see Australia and her brothers and sisters here.
   5. She has worked as the Deputy Store Manager at Chan Myae Tharyar Group for over five years.
   6. She provided a bank statement; property title document, car ownership details, and apartment ownership details.
   7. Her sister will provide all her expenses for her while she is in Australia.
   8. She will also bring US$5,000 with her to Australia.
   9. She has been refused a visitor visa previously in 2013 and 2011.
   10. She enclosed copies of the following documents:
       1. Her Myanmar ‘Citizenship Scrutiny Card’, stating her occupation as ‘Technical Services’.
       2. A letter from her employer confirming she has been employed as a Deputy Manager (Store) since 2012 and that she has requested one month’s leave to visit Australia, and then will return to her duties.
       3. The biodata page of the review applicant’s Australian passport.
       4. The review applicant’s electricity bill.
       5. The review applicant’s payslip.
       6. A Myanmar Government ‘Family Members list’ for the applicants’ family.
       7. The visa applicant’s bank account statement.
       8. The visa applicant’s Myanmar passport.
       9. A joint bank account of the visa applicant and her younger sister.
       10. A land sale document to the visa applicant.
       11. An apartment sale document to the visa applicant.
       12. A motor vehicle sale document to the visa applicant.
5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she ‘failed to demonstrate strong employment, financial and other personal commitments’ to support the likelihood of her compliance with visa conditions and return home.

Information to the Tribunal

Pre-Hearing Submission

6. The review applicant submitted a letter to the Tribunal on 13 December 2018. In summary it states:
   1. She does not know why her sister, the visa applicant, was refused a visitor visa.
   2. The visa applicant is a full-time employee as a Deputy Manager at her company.
   100. The visa applicant needs to take care of their parents’ legacy and her own properties in Myanmar, so she will definitely have to go back after a short visit to Australia.
7. The review applicant submitted a list of five relatives, including her sister Daw Thida [Thidar] Saw, two cousins, and two other relatives who had visited Australia in recent years and departed before the expiry of their visas.
8. The review applicant submitted a letter from the visa applicant’s employer dated 10 December 2018, stating that the visa applicant has been employed as a Deputy Store Manager at the company since January 2012.

Tribunal Hearing

9. The review applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages. The following is a summary of the information she provided at the hearing:
   1. She has lived in Australia for 26 years.
   2. Two of her brothers and two sisters are also living in Australia.
   100. She has three sisters who live in Myanmar, including the visa applicant, Kyi Kyi. They each live in Yangon. Kyi Kyi lives with her sister, Thidar Saw. Their other sister is married and lives nearby.
   4. Their sister Thidar Saw visited Australia last year. She stayed for two months then returned to Myanmar. She departed Australia before her visa expired.
   5. The applicant’s two cousins and two other relatives have also visited Australia in recent years. Each of them left Australia before their visa expired.
   6. The visa applicant is ethnic Burmese and of Buddhist religion.
   7. Because their mother has passed away the review applicant wants her sister Kyi Kyi to visit her in Australia.
   8. Kyi Kyi does not have any problems with the government in Myanmar. She has no enemies there.
   9. The review applicant and her four siblings have lived in Australia to be able to support their mother in Myanmar. The incomes in Myanmar are very low. After their mother passed away she is no longer sending money to her family in Myanmar.
   10. Kyi Kyi is able to support herself because she and her sister Thidar run their own taxi business. Kyi Kyi also works as a store manager at Chan Myae Tharyer company. She is earning about 60 lakhs per month. This is enough for her to live on.
   11. Kyi Kyi wants to visit Australia for one or two months.
   50. The times she and her two brothers and two sisters came to live in Australia were different from how Myanmar now is.
   13. Kyi Kyi will need to return to her work in Myanmar as her replacement will just be temporary. Kyi Kyi is at management level at the company.
   14. Kyi Kyi and Thidar want to continue to live in the same household. They do not want to live apart. Kyi Kyi helps Thidar run her taxi business. She also helps run the house while Thidar runs the taxi business and looks after the taxi business on weekends..
   15. Their mother owned the taxi business and now both sisters own it.
   16. Kyi Kyi and Thidar travelled to Thailand together last year for a holiday.
   17. The review applicant might want to sponsor her elder sister to visit Australia in the future.
   18. She and her siblings in Australia could raise money for a bond as a security for Kyi Kyi’s visit. If they lose that money it will be very hard for them as her siblings have mortgages and the review applicant has rent and bills to pay.
   19. She would like to return to Myanmar some day as it will be easier to be old and have someone look after you in Myanmar than in Australia.
   20. Kyi Kyi is happy with the religious life in Yangon. Most people in the country are Buddhist so it is easy for her to practice her religion there. She can go to the festivals and temples
   21. In Australia it is very hard. Work is hard and people have to struggle by themselves. It is easier for people her sister’s age in Myanmar. Her and Thidar’s work and pace of life suit them. They also have more relatives in Myanmar than in Australia. They can practice their religion more easily such as celebrating Full Moon days and participating in the fasting month. They attend their temple in Myanmar every fortnight with the phases of the moon. They could do that in Australia but it is better and easier for them in Myanmar because it is a Buddhist country.
   5. Kyi Kyi and Thidar are happy in Myanmar and enjoy living together. They have lived there a long time.
   23. The review applicant has visited her family in Myanmar several times. Her sister Kyi Kyi does not have any problems or difficulties in Myanmar

CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.
11. In the present case, the visa applicant seeks the visa for the purpose of visiting her siblings in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.
12. 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)).
13. The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.
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.600.611(3)):
    • 8101 – must not work in Australia
    • 8201 – must not engage in study or training in Australia for more than 3 months.
15. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant and her other siblings while in Australia. The Tribunal accepts that the visa applicant has some personal savings and has sufficient funds to support herself during a short visit to Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.
16. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.
17. The Tribunal has also considered all other relevant matters (cl.600.211(c)).
18. The Tribunal accepts that the visa applicant is a single woman from Yangon in Myanmar. The Tribunal accepts that two of the visa applicant’s sisters also reside in Yangon and that the visa applicant has been living with her sister Thidar there. The Tribunal accepts that the visa applicant likes this living arrangement and would like to return to it. The Tribunal considers that the presence of the visa applicant’s sister Thidar, who she is particularly close to, represents significant incentive for the visa applicant to return to Myanmar after a short stay in Australia.
19. The Tribunal accepts that the visa applicant has reasonably stable and valued income from her work as a store manager and her shared business interest in the taxi company. The Tribunal accepts that she would want to return to this work and to helping her sister in the business.
20. The Tribunal notes that the applicants’ sister, Thidar Saw, and their cousins and other relatives have previously travelled to Australia in recent years. The Tribunal has obtained Movement Records which confirm that each of them complied with visa conditions and departed Australia before the expiry of their visas.
21. The Movement Record for Ms Thidar Saw confirms she came to Australia early last year, on 15 January 2018, on a Visitor visa valid for three months, and she departed on 10 March 2018.
22. The Tribunal gives substantial weight to the good migration history of the visa applicant’s family and relatives in recent years, particularly in regard of her sister, Thidar. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia so that she may sponsor other family to visit her in the future.
23. The Tribunal acknowledges that five of the visa applicant’s siblings have become citizens of Australia and three of these changed their visa status while visiting Australia. The Tribunal notes however that this occurred around twenty years ago at a time when Myanmar’s political and economic situations were much more volatile. The visa applicant’s siblings were also at a much younger age with more work opportunities available to them than the visa applicant is and has now. The Tribunal can see no advantage for the visa applicant as a 62 year old woman with work and a settled life in Myanmar, in overstaying a visa to remain in Australia.
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.

Melissa McAdam
Member