1510402 (Migration)

[2016] AATA 3354

1510402 (Migration) [2016] AATA 3354 (1 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr NADIA HARJAI

VISA APPLICANT:  Mr NAWEED ABDUL MAJEED BALOCH

CASE NUMBER:  1510402

DIBP REFERENCE(S):  BCC2015/1377929

MEMBER:Josephine Kelly

DATE:1 March 2016

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 01 March 2016 at 3:36pm

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 22 May 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 13 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 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 of concerns arising from no previous travel history or demonstrated compliance with immigration laws in Australia or any other country, the current instability in Pakistan which may be a disincentive to return there, his limited family ties there, and his lack of employment.

5. The review applicant appeared before the Tribunal on 1 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence in person from her brother, husband and by telephone from the visa applicant.  

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 his niece and nephew and their families. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. The visa applicant has no relevant visa history.  He has not visited Australia.

11. The review applicant provided detailed evidence about the visa applicant’s travel to England in 1986 to visit family for one month, to Iran in 1995 for one month to visit family, to India in 1996 to visit the Baha’i Lotus Temple near Delhi, and to the UAE in 2002. 

12. 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.

13. In making the following findings, I have taken into account all the evidence before me, including oral and written evidence from the witnesses, and supporting documentation.

14. I find that the visa applicant managed a hotel until about five years ago when the owner sold the property.  Since then, he has been trading in real estate on a small scale using cash.  He has a bank account but does not use it regularly.  I find that the affidavit stating that his property and business documents were within the possession of lawyers was a misguided effort to meet the concern the Tribunal had raised about the visa applicant’s income and lack of evidence about it.

15. I find that the visa applicant is a Baha’i. I accept the evidence of the review applicant that Baha’is are not subject to discrimination which is consistent with the Department of Foreign Affairs and Trade Country Report on Pakistan dated 14 April 2015.  I accept that the visa applicant’s father migrated to Pakistan from Iran for reasons of safety.

16. I find that the visa applicant is responsible for looking after his elderly mother, his sister, and brother-in-law who is unwell at the moment.  I take into account his family’s visa history, including that the review applicant and her brother came to Australia on student visas and have since become citizens.  They are both successful in their respective careers. The visa applicant’s sister, the mother of the review, applicant has visited Australia three times and complied with the conditions of her visa.  Her husband was granted a visa but was unable to come to Australia in 2015 because of poor health.  That is a family history of compliance with visa conditions and does not require me to give greater scrutiny to the application.

17. I accept that the visa applicant is very close to the review applicant and her brother because he took care of them while they were growing up because their father was away working in different parts of Pakistan as a doctor employed by the government.

18. I accept that the visa applicant owns the home where he, his mother, sister and her husband live, that is, the family home of the review applicant and her brother.

19. I accept that one of the reasons the review applicant wants the visa applicant to visit is to take care of her while her husband travels to India to set up a radiology clinic there.  He has purchased the necessary machines but has to be present to make the necessary arrangements.  He is concerned about the certification of the machines running out.

20. I have taken into account the evidence of the review applicant and her brother about wishing to sponsor other visitors to Australia, including their mother, and the current spouse visa that is under consideration, and not wanting to adversely affect the prospects of future applications.

21. I find that the applicant will comply with the visa conditions set out above.  He has personal responsibilities in particular, and some business activities, that are strong incentives for him to return to Pakistan. He wishes to come to Australia to see how his niece and nephew and their families are living and working in Australia. They, in turn, wish to show him what they have achieved with his assistance.

22. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The review applicant and her husband and brother are prepared to pay a substantial bond to assist the visa applicant to secure a visa.

23. 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

24. 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.

    Josephine Kelly
    Senior Member