1506055 (Migration)

[2015] AATA 3313

1506055 (Migration) [2015] AATA 3313 (10 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Javaid Iqbal Khan

VISA APPLICANT:  Mr Zafar Iqbal

CASE NUMBER:  1506055

DIBP REFERENCE(S):  BCC2015/1044128

MEMBER:Karen Synon

DATE:10 August 2015

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 10 August 2015 at 12:33pm

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 24 April 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 7 April 2015.  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 applicant genuinely intends to visit Australia temporarily.

5. The review applicant applied for review of the primary decision on 5 May 2015 and provided a copy of the department’s decision to the Tribunal.

6. Prior to the hearing a submission was received that relevantly contended:

   The visa applicant intends to only visit Australia temporarily to see his brother and visit different cities and states.  This is why he listed his intended travel dates as 20 May 2015 to 10 August 2015.  This will be his first trip to Australia which explains the length of stay requested.  He also does not intend to take another overseas holiday for a very long time.

   The visa applicant is married and has two children, a daughter born in October 2014 and a son born on 28 May 2015.  His family will not be accompanying him on this visit to Australia.

   The visa applicant is employed full-time as the Director of Zafar Iqbal & Co and Shadi Khel Traders.  He also owns agricultural land in Pakistan from which he receives a regular income.

   The visa applicant has significant personal and business ties to Pakistan and will comply with the conditions on his visa should it be granted.  His immediate family members including his wife and children are permanent residents of Pakistan.  The visa applicant’s parents and younger brother are also permanent residents in Pakistan and the applicant has every intention of returning home to his family at the end of his holiday in Australia.

7. The following documents were provided in support of the submission:

   ·A copy of the visa applicant’s Pakistani passport containing a visa to Thailand;

   ·A copy of the visa applicant’s marriage certificate;

   ·Copies of his two children’s birth certificates;

   ·A copy of a ‘Service Level Agreement’ between United Bank and Madni Mobile Centre and OMNI Plus agreements as evidence that the visa applicant’s business is a franchisee of UBL Bank called OMNI (Branchless banking);

   ·An affidavit from the visa applicant confirming his sole ownership of Zafar Iqbal & Co and copies of work orders for this construction company; and

   ·A copy of a recent bank settlement, as evidence of the availability of funds for the visa applicant to support himself during the proposed visit to Australia.

8. Immediately prior to the hearing the applicant provided copies of his Business Activity Statements for the period 1 July 2014 to 30 September 2014 and 1 January 2015 to 31 March 2015.  They record a combined income of $24,000 in the six-month period.

9. The review applicant appeared before the Tribunal on 10 August 2015 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant, Mr Zafar Iqbal via telephone from Pakistan.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages when it took evidence from the visa applicant.  The review applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

10. In summary the Tribunal received the following relevant evidence from the review applicant:

    ·He has six siblings (two brothers and four sisters); they all live in Pakistan.  He is the eldest and all are married except him and his youngest sibling.  The applicant, aged 6, was sent to live with his uncle in Multan.  His uncle supported his study in Australia.  He completed a Bachelor of Commerce at Victoria University in 2004.  He has travelled frequently back to Pakistan for special occasions such as weddings and when his mother became ill.  Last year he met his two brothers in Thailand where they went on a prearranged tour of southern islands.  After this he visited Pakistan.  He has no immediate or extended family in Australia and all his family lives in Pakistan.  He is the only one here.

    ·His hometown of Mianwali is a country town of some 20,000 people and is primarily a farming town.  Most of the people who have lived there have done so for hundreds of years and everybody knows each other.  The religion of his family his Sunni Muslim.  None of his family have ever experienced any discrimination or persecution and Mianwali has never had any troubles or problems.  The trouble in Pakistan is in the north-west. 

    ·He has never sponsored a family member to Australia but did lodge an application for his brother in 2012 which was also refused.  He did not seek review of that decision.  His sisters do not travel as, according to custom, they stay at home.  His youngest brother is aged 21 and still studying and therefore the visa applicant is the only one available to travel to Australia.  His mother cannot travel due to her illness and his father has no interest in travelling; he has not even travelled elsewhere in Pakistan.

    ·While he nominated a period of 80 days in the visa application he thinks it likely his brother will only stay for 4-6 weeks.  He guessed the dates.

    ·His brother has a wife and two young children in Pakistan, owns agricultural land on which he grows two crop rotations a year; usually wheat or sugarcane.  He supervises people who work there harvesting the crops.  He also owns the franchise of a Omni Plus branchless banking business which operates domestically and works with 45 retailers (sub agencies).  It has a physical location (a shopfront) but operates online and has two employees.  The visa applicant accesses and checks the activities of this business online so can continue to manage it from Australia.  Thus far the business has realised a profit of 40,000 to 50,000 rupees a month.  His brother completed a Bachelor of Business in Lahore where the family owns a home.

    ·The visa applicant also owns a construction business and is one of 8 or 10 groups within the town who tender for local council contracts to the value of 1 Crore (10 million rupees).  He might be successful in two or three contracts in one half of the year and then have nothing for the 6 months.  He employs and supervises people to run these contracts.

    ·The visa applicant and his family live in a home with his parents and in the block with the extended family.  He married his cousin (his father’s brother’s daughter) and so his wife will have lots of support during his trip to Australia.

    ·Invited to comment on the information contained in the primary decision about the ongoing civil disruption, lawlessness and political upheaval in Pakistan, the applicant said this is mostly in the north-west, close to the border regions and possibly in Karachi and other main cities where the army is based and the international media can focus.

    ·He is prepared to pay a bond of up to $40,000 as he is absolutely certain his brother will return to Pakistan within the period of the visa.  He has savings of $100,000 and can meet this bond.  He is saving for a home.

11. In summary the Tribunal received the following evidence from the visa applicant:

    ·The visa applicant has a wife and two children in Pakistan as well as his parents and extended family.  He only wants to visit Australia on holiday and has no interest in living here.  The last time he travelled overseas was to Thailand to meet his brother.  He will stay 4 to 6 weeks.  He has no interest in working or studying here as he has finished his study in Pakistan and already has income from three businesses in Pakistan.  He owns a construction business, an Omni Plus branchless banking business and an agricultural business.  He described the activities of these businesses.  He has no incentive or desire to stay in Australia.  He is able to leave his wife and young children and his businesses because he lives with his family and has employees for his businesses.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

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

15. 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).

16. There is no evidence before the Tribunal to indicate that the visa applicant has ever held an Australian visa.  Accordingly there is no evidence of non-compliance with the conditions of any previously held visa.  However the visa applicant has quite recently travelled to Thailand for a holiday and returned to Pakistan at the conclusion of a holiday.  Accordingly, there is no evidence of non-compliance with conditions of any previously held visa. 

17. 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.

18. There is no information before the Tribunal to suggest that the visa applicant intends to work or study in Australia.  The Tribunal accepts that the visa applicant is fully occupied and employed in Pakistan as the owner of 2 businesses and productive agricultural holdings.  The Tribunal also accepts that the visa applicant has completed a Bachelor of Business in Pakistan.  The Tribunal further accepts, on the basis of the documentary and oral evidence before it, that the visa applicant has sufficient funds to finance his planned holiday in Australia without the need to resort to working here especially given that the review applicant will accommodate him.  The Tribunal cannot see any reason or motivation for the visa applicant to work or study in Australia and nor does it see any motivation for him to remain in Australia after the end of his permitted stay given his wife and 2 young children will be staying in Pakistan and that he lives with or very close to his entire extended family.  The review applicant is the only family member he has living in Australia.

19. The Tribunal has also considered all other relevant matters: cl.600.211(c).  In particular the Tribunal places weight on the review applicant’s stable financial situation and previous visa history.  Further, the majority of the visa applicant’s immediate and extended family are well established and financially secure in Pakistan.  All of the visa applicant wife’s family are also in Pakistan and live in the same immediate vicinity as the visa applicant.  The visa applicant has agricultural holdings and two businesses.  He employs several staff in his branchless banking business and as necessary in his construction business.  He has both property assets and savings in the bank.  The impression the Tribunal was left with was that the visa applicant enjoys a supportive and good life in Pakistan.  The Tribunal found the evidence of both the review and visa applicants to be credible and accepts that the visa applicant has no intention of residing anywhere but Pakistan.  Further, the Tribunal accepts the evidence of both applicants that the area where they live is not experiencing any political turmoil or civil unrest.  These factors lead the Tribunal to conclude that the visa applicant genuinely intends to only visit Australia as claimed.

20. The Tribunal also places weight on the fact that the review applicant is prepared to pay a security bond of up to $40,000 to guarantee his brother’s return to Pakistan within the period of his visa, should it be granted.

21. 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

22. 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.

    Karen Synon
    Member