1509666 (Migration)

[2015] AATA 3587

1509666 (Migration) [2015] AATA 3587 (28 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aamir Hussain Syed

VISA APPLICANT:  Mr Syed Iftikhar Hussain Shah

CASE NUMBER:  1509666

DIBP REFERENCE(S):  BCC2015/1429784

MEMBER:Suhad Kamand

DATE:28 October 2015

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 28 October 2015 at 10:06am

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 10 July 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 19 May 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 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 applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 27 October 2015 to give evidence and present arguments.

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

   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. In the present case, the visa applicant seeks the visa for the purposes of visiting, together with his wife, family in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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 (cl.600.211(a)).

10. There is no evidence that the applicant has previously travelled to, or applied to travel to, Australia. Accordingly, the Tribunal cannot assess his level of compliance with any prior Australian visa. However, the review applicant informed the Tribunal that the applicant has travelled overseas in the past, including to Saudi Arabia for Haj, and he has always complied with the conditions of any visa he has held. The Tribunal asked the review applicant why documentary evidence of his father’s prior travels has not been provided, given that the delegate’s decision record makes express reference to the absence of evidence of international travel as part of the reason for refusing to grant the visa. The applicant offered only that he must have overlooked that, but that he would try to get a copy of his father’s passport to the Tribunal by that afternoon or soon after if possible. As explained to the applicant, while the Tribunal must and will consider such evidence if it is received by the Tribunal before the decision is finalised, it will not be delaying finalisation of the matter pending receipt of that information as the review applicant has been on notice of this issue since he was notified of the Department’s decision in July 2015. While documentary evidence in support of the applicant’s travel history has not been received by the Tribunal at the time of this decision, on the context of the general credibility of the review applicant’s evidence overall, and in the absence of any information to the contrary, the Tribunal is willing to accept that the applicant has travelled out of Pakistan before and has complied with his visa conditions.

11. The Tribunal has also considered whether the 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.

12. Relevant to this, the evidence before the Tribunal indicates that the applicant is retired, aged around 66, but has multiple property assets in Pakistan, including farmland and a commercial restaurant premises from which he earns rental income. The applicant manages these assets. Further, his wife is employed as a teacher at St John’s Convent Girls School since December 1997. The above is supported by a letter from that school, dated 7 May 2015, and a declaration of assets detailing the property interests held by the applicant and his wife in Pakistan. The review applicant also gave evidence that the intention of the proposed visit is for his parents to keep his wife company at home while she looks after their first child as he is very busy and unable to be with his wife while he is at work. Their first child was born in around September 2015, and while he intends to take the child to visit his parents in Pakistan in the future, the child is currently too young. The review applicant also provided evidence of his finances and stated his intention to look after the applicant financially for the duration of his proposed visit. While not determinative, the Tribunal considers these factors cumulatively to suggest that the applicant will be fully supported financially for the duration of his intended stay, that he has no intention to work, study or train in Australia, that the purpose of his intended visit is to spend time with family members, and that he intends to comply with the above-stated conditions to which the visa would be subject.

13. In relation to other relevant matters, the Tribunal discussed with the review applicant that the applicant’s stated intention is to visit Australia to visit son and daughter in Australia, and that he intends to travel with his wife. The Tribunal explained that this is of concern as it seems that most of the applicant’s immediate family would be in Australia for the duration of the proposed visit, leaving her with limited close family ties in Pakistan. The review applicant’s evidence was that: he is an Australian citizen and has lived in Australia for ten years; he obtained permanent stay in Australia through his skills and studies; if his parents wanted to live here they would have applied to come to Australia earlier in his ten years here; his sister is currently on a temporary visa in Australia studying health sciences/physiotherapy, and is hoping to apply for permanent stay in the future; his sister and his family would not do anything to compromise their reputation or compromise the ability of other family members to obtain visas to visit or stay in Australia; his father has never lived outside Pakistan and doesn’t want to; while his father would have his wife and 2 children in Australia for the duration of his proposed visit, he also has a daughter and grandchild living in Dubai who he would also want to see and would not compromise his or his wife’s ability to travel to see them by not complying with his Australian visa; he has siblings living in Pakistan and would want to return there to see them. The Tribunal considers the above factors, cumulatively, to suggest that the applicant has ties and commitments outside Australia and in Pakistan which would encourage him to return there and which would suggest that he genuinely intends a temporary stay in Australia.

14. Regarding the visa applicant’s socio-economic circumstances, the review applicant provided documentary evidence of the visa applicant owning property in Pakistan. The review applicant told the Tribunal that his parents support themselves financially through rent which is paid to them by 5 or 6 tenants which rent a plot of family land and another tenant at a commercial restaurant premises owned by the applicant. The Tribunal accepts that the applicant has multiple assets and sources of income in Pakistan and that they are financially comfortable in Pakistan. The Tribunal accepts that the property interests of the applicant and are managed by the applicant. The Tribunal considers this to be a commitment which would encourage the applicant to return to Pakistan after a temporary stay in Australia.  

15. Regarding the security and political situation in Pakistan, the Tribunal is mindful of the delegate’s concerns that, where the applicant resides in and around Karachi, there are reports identifying people being killed and wounded in terror attacks, such circumstances providing a further disincentive for Pakistani nationals to return to Pakistan. This is compounded by Departmental information revealing Pakistani nationals, particularly from Karachi, having a high rate of visa non-compliance. However, each case must be assessed on its own merits. Relevant to this, the review applicant offered emphatically that: neither he, his sisters or his parents or any of their family members, have ever had any problems or fears of harm in Pakistan; his mother travels to work and to see family members, and also drives around with the applicant and has never had difficulties; the area in which his parents live is safe; the review applicant has returned to visit his parents in Pakistan multiple times and intends to do so with his child in the future, and would not consider doing this if his parents were living in an unsafe situation; if he had any fear for his parents safety they would have tried to come to Australia at an earlier point in the ten or so years that the review applicant has resided here. The Tribunal accepts the review applicant’s evidence that his parents have not had any problems in Pakistan for any reason and they have no fears about continuing to reside in Pakistan, despite the general security concerns in and around Karachi.

16. The Tribunal has also asked the review applicant if he is aware of the adverse implications any visa non-compliance by the applicant may have for himself or his family. The review applicant responded that he has been in Australia for around ten years and has never breached any immigration laws or any other laws; his wife visited Australia on a visitor visa while they were married and, despite it being hard to separate a new married couple, she departed Australia for Pakistan within the period permitted and then applied from offshore to return as his spouse, returning on a partner visa in around December 2014; both he and his wife, a Pakistani national, have family members living abroad who may like to visit Australia in the future, and he is aware that any visa non-compliance by the applicant may adversely impact the family’s reputation and any future visa application made by other family members in future. The Tribunal considers the review applicant’s demonstrated awareness of the adverse implications of visa non-compliance to suggest that he would encourage the applicant to comply with the conditions and purpose of the visa applied for, and that his influence shapes and informs the applicant’s genuine intention to stay temporarily in Australia.

17. Based on all the evidence before it and the above factors cumulatively, while the Tribunal understands the delegate’s concerns, the Tribunal has had the benefit of additional evidence and has taken evidence directly from the review applicant. On the basis of all the evidence before it, and for the above reasons, the Tribunal is satisfied that the 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

18. 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.

    Suhad Kamand
    Member