1508832 (Migration)

[2015] AATA 3862

1508832 (Migration) [2015] AATA 3862 (9 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Ameer Shah

VISA APPLICANT:  Mr Syed Ahmad Hussain Shah

CASE NUMBER:  1508832

DIBP REFERENCE:  BCC2015/1093068

MEMBER:Deborah Morgan

DATE:9 December 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 09 December 2015 at 3:07pm

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 (the delegate) on 1 June 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 12 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 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 (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 the evidence did not satisfy him that the visa applicant intended a genuine temporary stay in Australia.

5. The review applicant appeared before the Tribunal on 4 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Muhammad Huzaifa and Mrs Syeda Khadijah Ahmed.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background information

7. The visa applicant is a citizen of Pakistan who was born on 1 January 1954. At time of decision he is 61 years.

8. The visa applicant’s wife, Mrs Rukhsana Begum, concurrently applied for a Visitor visa, Subclass 600. The Department’s delegate refused her visa application on the same grounds as it refused the visa applicant’s.

9. The visa applicant and his wife first applied for Visitor visas in June 2014. This is a review of the visa applicant’s second application for a Visitor visa in Subclass 600.

10. Evidence before the Tribunal indicates that the visa applicant is the father of the review applicant and of Mrs Syeda Ahmed, the above named witness.

11. Departmental data indicates that the review applicant was granted a Skilled Independent, Subclass 189 permanent visa on 19 February 2015.

12. The review applicant provided a detailed written submission which assisted the Tribunal in its deliberations.

    Issue before the Tribunal

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 two adult children who are resident in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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. The visa applicant has not previously been granted a visa to enter Australia and, accordingly, the criterion in cl.600.211(a) does not apply to him.

    Whether intention to comply with visa conditions

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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

18. The Tribunal received oral evidence that the visa applicant would not consider working in Australia because he has no English and is a farmer from Pakistan with and because he has no need to work as he will be fully supported in Australia.

19. The Tribunal received oral evidence that the visa applicant would not contemplate study in Australia because of his lack of English language.

    Other relevant matters

20. The Tribunal has also received oral evidence in relation to all other relevant matters (cl.600.211(c)) as follows.

21. The visa applicant is married to Mrs Rukhsana Begum.  He has three children by his wife, all of whom live abroad. His two elder children, the review applicant and the witness, Mrs Syed Ahmed, reside in Australia. Their younger sister, Fatima, presently resides in Canada with her husband (who is undertaking his PhD) and their child. Her Canadian visa status is not known to the review applicant or Mrs Ahmed.

22. The visa applicant has one sister who resides nearby in Pakistan. He has cousins and many friends in the village. Each evening visitors from surrounding districts call in for tea and conversation.

23. The visa applicant inherited farm lands in Punjab Province, Pakistan on which wheat, cotton and sugar cane are grown. He has worked as a farmer for his entire life. He no longer physically labours but rather manages his farm lands and, those of his sister, a widow. There is no other family member in Pakistan who is available to manage the ancestral farm lands.  The visa applicant is not contemplating retirement.

24. The visa applicant and his wife own a large house that has air-conditioning and heating. They have servants and own two motor vehicles. The review applicant said that the visa applicant enjoys a happy and safe lifestyle which, in his opinion, is superior to Australian middle-class life-style.

25. As recorded by the delegate, the Tribunal received evidence that the visa applicant is a Shia Muslim. The Tribunal received evidence that he attends the mosque in their village which is a general mosque, not a Shia mosque. As submitted in writing, the visa applicant is not a high profile Shia. . Intermarriage with Sunni Muslims has occurred in their family and in their immediate family, the Tribunal received oral evidence that Mrs Ahmad’s husband is Sunni.

26. Evidence was received that in Pakistan the visa applicant has never experienced persecution in consequence of his religion or for any other reason

27. The review applicant contended that if the visa applicant had wanted to apply for a protection visa/refugee status, he would have done so when he visited him and his wife in Finland.

28. Evidence of the visa applicant’s three month visa entry to Finland in 2013 was submitted.

29. The Tribunal has sighted evidence of the visa applicant’s visa for travel to Saudi Arabia and Iraq are in his passport.

30. The review applicant submitted, having lived in both Finland and Australia, that, from a lifestyle perspective, Finland has more to offer than Australia. He and his wife transferred to Australia for employment reasons.

31. The incentives for the visa applicant to return to Pakistan before any Visitor visa expired are the need for him to return to manage his farm lands and his sister’s; his settled and comfortable life and his busy social life in Pakistan.

32. In Australia the visa applicant will experience social isolation because the only people he knows are his family.  

33. The review applicant anticipates that because the visa applicant is used to a large house, he will not enjoy staying in his small apartment in Perth and will be keen to return to Pakistan for that reason.

34. Mrs Ahmad is expecting her first child in February 2016. A letter of support from Dr Alison Munt of Adelaide Obstetrics and Fertility dated 26 November 2015 states that without her parents support after the birth of her baby, Mrs Ahmad, a medical officer, will be quite isolated and that “could put her at increased risk of post natal depression.”

35. Mrs Ahmad told the Tribunal that she is apprehensive about having a child and would be grateful for her parents’ presence in Australia at the time she gives birth, particularly her mother. Her only family in Adelaide is her husband who works full-time as a doctor. The review applicant resides in Perth.

36. The review applicant said that his parents would not consider travelling separately because they complement each other and it would be hard for them to travel individually.

37. Mr Syed Hasan Akhtar and Mrs Fauzia Narjis are the review applicant’s parents-in-law. They are Pakistanis. They visited Australia in 2013. Department's movements' data in their names indicates that they arrived in Australia under Subclass 600 visas on 1 December 2013 and departed on 9 December 2013, two days before their visas ceased.

38. Mrs Bushra Ahsan is the review applicant and Mrs Ahmad’s cousin who has also been to Australia. Department's movements' data in Mrs Ashan’s name shows she entered Australia on 26 March 2015 under a Skilled Independent Subclass 175 visa that will expire on 20 January 2020.  She departed Australia on 10 April 2015.

39. The review applicant told the Tribunal that if the Department requires surety, it can be provided. He submitted evidence that he previously asked the Department if he could pay a security bond to assist with the grant of visas to his parents. Because of his certainty that his father and mother will not overstay their Australia visitor visas, they would even be prepared for a condition to be imposed on their visas requiring them to report to the police.

40. The Tribunal asked the review applicant to comment on the information in the delegate’s decision that Pakistani nationals visiting Australia have shown a high rate of non-compliance with visa conditions. The review applicant said that finding by the delegate is not fair because the visa applicant is one of 180 million Pakistanis and compared with most of his fellow countrymen he is well off.

41. Mrs Ahmad submitted that she, her brother and her husband are all professionals and in those capacities they would not jeopardise their standing in Australia by allowing their parents to breach any visa conditions.

42. Evidence was received that if granted visas, the visa applicant would arrange travel insurance.

43. The Tribunal gives weight to the previous entries by the visa applicant’s relatives to Australia. There is no evidence before the Tribunal that the visa applicant’s relatives breached any visa conditions.

44. The Tribunal is satisfied that the review applicant, his sister Mrs Ahmad, and her husband, Mr Muhammad Huzaifa were credible witnesses. Their oral evidence was consistent with claims in the review applicant’s written submission. The Tribunal gives the witnesses’ oral evidence positive weight.

45. The Tribunal is satisfied on the evidence that there is a credible and legitimate purpose for the visa applicant’s visit to Australia which is to visit the family of the review applicant who is his son, an Australian permanent resident.  And, also to visit his daughter, Australian permanent resident, Mrs Syed Ahmad, and her husband who are expecting their first child in February 2016. The Tribunal finds that the proposed visit of three months referred to in the visa application is consistent with these purposes.

46. The Tribunal is satisfied on the evidence that, if granted a Subclass 600 visa, the visa applicant does not intend to work in Australia and that he does not intend  to engage in study for more than three months in Australia.

47. The Tribunal acknowledges the presence of two of the visa applicant’s adult children in Australia is an incentive for him to remain here. However,  on weighing all the evidence, giving particular weight to the evidence of the visa applicant’s recent travel to Finland to visit the review applicant and his family, the Tribunal is satisfied that the combination of the visa applicant’s settled and comfortable life in Pakistan, the need for him to return to his farm lands which is under his exclusive management, and his responsibilities to his widowed sister act as stronger incentives for him to return to Pakistan.  

    CONCLUSIONS

48. Having considered all relevant matters in this case, and for the reasons given above, 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

49. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Deborah Morgan
    Member