1503952 (Migration)

[2015] AATA 3548

1503952 (Migration) [2015] AATA 3548 (12 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Saima Manuel

VISA APPLICANT:  Mr Samson John

CASE NUMBER:  1503952

DIBP REFERENCE(S):  CLF2014/105515

MEMBER:Linda Symons

DATE:12 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2015 at 4:39pm

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 26 January 2015 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 17 December 2014. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa 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 visa on the basis that the visa applicant did not meet cl.600.211 because he/she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The review applicant applied to the Tribunal on 23 March 2015 for review of this decision. 

5. The review applicant appeared before the Tribunal on 15 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, Manuel Samuel Philip, and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu 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. The delegate had concerns because the visa applicant had previously applied for a Visitor visa and stated in his visa application his intention to undertake employment while in Australia. The delegate had concerns about his credibility because in his current visa application he incorrectly stated that his previous visa application was refused due to a lack of supporting documents. The delegate had concerns because he did not disclose in his current visa application that he had been refused a visa to the USA in 2001.

9. The delegate did not place any weight on the visa applicant’s previous travel because he had undertaken limited international travel to countries that did not have rigorous pre clearance and immigration laws and which did not have similar living standards as Australia, Canada or the USA.

10. The delegate had concerns because the visa applicant’s sister (the review applicant) had entered Australia on a Visitor visa and then sought to remain here permanently on other grounds. The delegate was also unable to look favourably on her support of his visa application for this reason. The delegate had concerns that the country conditions in Pakistan gave him little incentive to leave Australia. The delegate had concerns that the records indicate that Pakistani nationals, especially from minority religions, who have entered Australia as tourists/visitors have shown a high rate of non-compliance with their visa conditions compared to the global average. The delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia because of his current socio economic circumstances in Pakistan and the comparatively greater economic opportunities in Australia.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister and her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, 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)). There is no evidence before the Tribunal to indicate that the visa applicant has previously held a substantive visa or any subsequent Bridging visa in Australia. The visa applicant gave evidence to the Tribunal that he has previously travelled to Sri Lanka, India, Nepal, Cyprus and Turkey and was in transit in the UAE. He stated that he visited these countries for the purpose of attending conferences organized by the Assemblies of God.

13. 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.

14. In considering whether the visa applicant intends to comply with condition 8101, the Tribunal discussed the proposed financial arrangements for the visa applicant’s visit to Australia. The review applicant gave evidence that she will pay for all the visa applicant’s expenses while he is in Australia. She is employed as an Assistant Nurse. Her current income is approximately $1,800.00 per fortnight. Her husband is also working as an Airline Service Operator in Qantas. She owns a car, has an investment of $10,000.00 in her name and savings of over $25,000.00. She has two children aged 7 and 4 ½ years. The older child attends school and the younger child attends preschool.

15. The visa applicant gave evidence that he has been a Pastor since 1998. He stated that his current income is between 70,000.00 to 80,000.00 rupees per month. He stated that his wife is a registered nurse and has a government job. He stated that she earns approximately 100,000.00 rupees per month. He stated that he owns a house and is building another house which is nearly completed. He stated that he owns a car and some land. He stated that he has no debts. He stated that he is able to bring up to $2,000.00 with him to Australia. He stated that he would like to visit Australia for one month.   

16. The review applicant and her husband both gave evidence in relation to the statement made by the visa applicant in his previous visa application that he has an opportunity to preach as a Pastor in a Church in Australia. The review applicant stated that the visa applicant does not have the intention to preach professionally in Australia and would “break the law” if he did so. She stated that she told her Pastor in Australia that she intended inviting her brother, who is a Pastor, to visit her in Australia and her Pastor suggested that he could invite him to read the Bible as a guest Pastor. She stated that it is the normal practise to invite a guest Pastor to preach.

17. When asked why she had sponsored the visa applicant, the review applicant stated that she wanted him to come to Australia and meet her children. She stated that her eldest child was 10 months old when she came to Australia. She stated that she has told the visa applicant what a beautiful country Australia is. She stated that friends of hers who are from Pakistan want to meet the visa applicant and listen to him preach in Urdu.

18. The review applicant’s husband gave evidence that the delegate misunderstood the statement made by the visa applicant. He stated that when the Pakistani community in Australia find out that someone is visiting from overseas they want that person to listen to their testimony and hear them preach. He stated that they like listening to guest preachers from other countries. He stated that guest pastors do not get paid and give sermons because they are passionate about it.

19. The visa applicant gave evidence that he has no intention of preaching in Australia and just wants to come here for a visit. The review applicant has provided the Tribunal with a supporting letter dated 25 July 2014 from Senior Minister Paul Jabex from iShine in Padstow. In the letter Senior Minister Paul Jabex refers to the visa applicant and states “during his short stay, he will spend time with his sister and her family and minister in iShine before he returns back to Pakistan”.

20. The review applicant gave evidence that the visa applicant has completed a degree in Theology. She has provided the Tribunal with written evidence of the visa applicant completing a Bachelor of Theology in 2007 and a Master of Theology in 2011. She stated that he is not interested in studying in Australia. There is no evidence before the Tribunal to indicate that the visa applicant intends engaging in study or training in Australia for more than 3 months.

21. During the course of her evidence the review applicant stated that the visa applicant wished to send his children to Australia to study here and that he will make inquiries in relation to this issue whilst he is in Australia. The Tribunal asked the visa applicant what his plans were when he came to Australia and he made no mention of making inquiries or arrangements for his children to study in Australia. When the Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, she responded that the visa applicant has spoken to her about his desire for his children to study in Australia and his intention of sending his children to Australia to study.

22. The review applicant’s husband gave evidence that the visa applicant in interested in having his children study in Australia. He stated that education consultants in Pakistan recommend Australia as the best country to study in. He stated that lots of children from Pakistan have studied here, returned to Pakistan and found good jobs. 

23. The Tribunal discussed with the visa applicant whether he had any problems because of his work and his preaching. He responded that he has never had any problems. He stated that he is registered with the government and his Church is registered with the government. He stated that there is religious freedom and there is no problem preaching to Christians. He stated that they are not allowed to preach to Muslims.

24. The Tribunal discussed with the review applicant what incentives the visa applicant had to return to Pakistan and not to remain in Australia after the end of his permitted stay. She gave evidence that, as an Australian citizen, she would not go against the law or breach it. She stated that she is prepared to lodge a security bond in the sum of $30,000.00 to guarantee that he will return to Pakistan. When asked what was likely to happen if the visa applicant came here and then decided not to return, she responded that he understands his responsibilities. She stated that he is running two Churches and will return. She stated that their parents live with him. She stated that they are elderly and he would not leave them alone. She stated that his wife and children are in Pakistan and he will return. She stated that he just wants to visit them and send his children to Australia to study here. She stated that she has three sisters and two other brothers who live in Islamabad in different towns.

25. The Tribunal asked the visa applicant what his incentives were to leave Australia before his visa expired. He gave evidence that he has family in Pakistan including his children. He stated that his parents live with him. He stated that he is a Pastor and is working. He stated that he has a calling from God to serve people. He stated that he owns property in Pakistan. He stated that his wife has a good government job. He stated that he has commitments in Pakistan and cannot leave. He stated that he has no plans to leave Pakistan.

26. The review applicant’s husband re-iterated the evidence given by the review applicant. He stated that he believes the visa applicant is a genuine visitor and that he and the review applicant are prepared to guarantee that he will leave Australia before his visa expires. He stated that they will not breach the law and will make sure that he complies with the conditions of his visa. When asked how he would make sure the visa applicant complies with the conditions of his visa, he responded that they have strong family bonds and the visa applicant would not engage in actions that would get the review applicant and her family into trouble in Australia. He stated that the visa applicant is a Pastor and know the importance of family. He stated that he would not leave his family in Pakistan.

27. The Tribunal put to the review applicant information in relation to the visa applicant’s previous application for a Visitor visa, pursuant to s.359AA of the Act. This information indicates that the visa applicant applied for a Visitor visa to come to Australia on 28 July 2014 and that his application was refused because the delegate was not satisfied that he genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. In his current visa application filed on 17 December 2014, he stated that his previous visa application was refused due to a lack of supporting documents.

28. The review applicant responded that this was one of the reasons given for refusing the visa applicant’s first visa application. She stated that he had travelled previously but had not provided any documents in relation to his travel. The review applicant’s husband gave evidence that he and the review applicant filled out the current visa application on behalf of the visa applicant. He stated that he believes that the visa application was refused because they did not provide sufficient supporting documents.  

29. The Tribunal raised as an issue with the review applicant her own immigration history and its concerns that, with that family history, the visa applicant may also travel to Australia on a Visitor visa and then apply for a permanent visa. She responded that she had problems relating to her job but the visa applicant has no such problems. She stated that she can guarantee that he will return to Pakistan.

30. The Tribunal raised as an issue with the review applicant the country conditions in Pakistan and its concerns that it would provide a strong incentive for the visa applicant to remain in Australia after the end of his permitted stay. She responded that the poor country conditions do not affect the whole country and the visa applicant has no problems. The review applicant’s husband stated that the situation is not the same throughout Pakistan. He stated that the problems are in the Northwest Province. He stated that the visa applicant lives in Islamabad and the situation there is secure. He stated that many diplomats live in Islamabad.  

31. Having considered all the evidence, the Tribunal accepts that the review applicant and her husband are genuine in their desire to support the visa applicant’s visit to Australia. However, the Tribunal found aspects of the visa applicant’s evidence to be unconvincing particularly in relation to his plans when he gets to Australia and this raises concerns for the Tribunal with respect to his intentions. The review applicant gave evidence to the Tribunal that her friends who are from Pakistan want to meet the visa applicant when he comes to Australia and hear him preach in Urdu. This tends to indicate that the visa applicant intends preaching when he is in Australia.

32. The review applicant has provided to the Tribunal a letter dated 25 July 2014 from Senior Minister Paul Jabex from iShine in Padstow. In the letter, Senior Minister Paul Jabex refers to the visa applicant and states “during his short stay, he will spend time with his sister and her family and minister in iShine before he returns back to Pakistan”. This letter tends to indicate that the visa applicant intends working at iShine during his visit to Australia.

33. Regulation 1.03 defines ‘work’ as “an activity that, in Australia, normally attracts remuneration”. Ministering in a Church in the role of a Pastor or a preacher is an activity that, in Australia, normally attracts remuneration. The review applicant’s husband gave evidence that members of his congregation like being preached to by Pastors from other countries. He stated that guest preachers at his Church do not normally get paid. The definition of ‘work’ does not require that a person be paid a wage or salary to be considered to be working. Engaging in an activity that normally attracts remuneration in Australia is sufficient to be considered to be working. The Tribunal finds that preaching or ministering in the Church is working as defined in r.1.03.

34. A Visitor visa issued to the visa applicant would be subject to condition 8101 which requires that the visa applicant must not work in Australia. In view of the above, the Tribunal is not satisfied that the visa applicant intends to comply with condition 8101 if granted the visa. Therefore, 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.

35. For the above reasons, the Tribunal finds that the requirements of cl.600.211 are not met.

    DECISION

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

    Linda Symons
    Senior Member