1510474 (Migration)

[2015] AATA 3919

1510474 (Migration) [2015] AATA 3919 (15 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Asif Saleem

VISA APPLICANT:  Mrs Nazish Anjum

CASE NUMBER:  1510474

DIBP REFERENCE(S):  unknown

MEMBER:Alison Mercer

DATE:15 December 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 criterion for a subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 15 December 2015 at 3:05pm

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 21 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 4 June 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 visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia. In reaching this conclusion, the delegate acknowledged that the visa applicant would leave her husband in Pakistan but found that she would take her 2 sons with her to Australia, that she had no record of travelling outside Pakistan, little economic incentive to return there and that the economic, political and security situation in Pakistan provided a disincentive for her to return there after visiting Australia.  He also noted that the visa applicant had several brothers living in Australia.

5. The Tribunal received a review application from the review applicant on 3 August 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Ms Daniela Jakovljevic, as his representative and authorised recipient for correspondence.  The agent provided a short submission to the effect that the delegate’s decision was unjust and that the visa applicant was a married woman who would not leave her husband.  The agent further stated that the visa applicant’s husband would not allow her to take their children to Australia if he did not think they would return to Pakistan.  The agent stated that the visa applicant had been invited by the review applicant to Australia primarily for a family reunion with her brothers and their families in Australia, including 2 brothers visiting from Japan and New Zealand.

6. On 17 November 2015, the Tribunal wrote to the review applicant via his agent to invite him to a hearing on 15 December 2015.  He was advised that the Tribunal would also like to take evidence from the visa applicant by telephone during the hearing.

7. The review applicant appeared before the Tribunal on 15 December 2015 to give evidence and present arguments.   The Tribunal received a written submission from the applicant’s agent at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her brothers, one of whom is the review applicant, in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)). It is not disputed that the visa applicant has not previously been to Australia so this factor is not relevant in her case.

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.600.611):

    ·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. Finally, the Tribunal must also consider all other relevant matters (cl.600.211(c)). The term ‘all other relevant matters’ is not defined in the Act or Regulations.

14. The Tribunal found the review applicant to be credible and detailed in his evidence. After carefully considering the oral and documentary evidence provided, the Tribunal made the following findings:

    ·the review applicant is a 41 year old Australian citizen who came to Australia as a student from Pakistan in 1998 and who was subsequently granted a spouse visa and permanent residence in 2005.  He became an Australian citizen in 2008 and remarried in 2009;

    ·the review applicant has 4 children from his present marriage and an older daughter from his first marriage.  He and his wife run their own family day care business and own their own home in Melbourne;

    ·the review applicant and his family would accommodate the visa applicant if she is granted a visa;

    ·apart from his wife and children, the review applicant has 2 brothers in Australia, Abdul Razak and Mohamed Ashfaq, who are the holders of temporary visas.  Abdul is currently undertaking a Certificate III and IV in Engineering Technology as the holder of a student visa, while Mohamed holds a subclass 457 visa which includes his wife and children.  Mohamed and his wife are expecting their fourth child imminently.  The review applicant has another brother, Kashif Saleem, and their widowed mother, Razia Saleem, in Pakistan, as well as the visa applicant and her husband and 2 children. The review applicant also has another brother, Sajid, who is a permanent resident of New Zealand;

    ·the visa applicant lives with her husband and 2 sons on the outskirts of the city of Lahore.  She and her family are Sunni Muslims;

    ·the visa applicant is 33 years old and is a home-maker.  Her husband is a self-employed businessman (trader).  The visa applicant’s husband’s father recently died and the visa applicant’s husband now runs the business he previously ran with his father, and he and the visa applicant are primarily responsible for looking after the visa applicant’s widowed mother in law;

    ·the visa applicant also regularly visits her brother Kashif and his family, with whom their widowed mother lives in the heart of Lahore;

    ·the visa applicant has not travelled to Australia before; however, her parents and her brother Kashif, have previously visited Australia and abided by their visa conditions.  Her parents visited Australia in 2010, Kashif visited in 2014/15 and her mother visited again in 2015 after she was widowed.  The review and visa applicants’ brother Sadiq visits frequently from New Zealand;

    ·the review applicant and the visa applicant would like the visa applicant to be granted a 3 month visitor visa so that she can spend time with her brothers in Australia and their families.  Given that 3 of her brothers are already in Australia, and Sadiq can travel here from New Zealand without difficulty, it is much easier for them to have a family reunion here than in Pakistan;

    ·the visa applicant wishes to bring her sons with her to meet their Australian cousins (the Tribunal notes that the visa applicant’s sons have separately been refused visitor visa applications, but these decisions are not reviewable by the Tribunal) as 3 of the review applicant’s children were born in Australia, as were 3 of his brother Mohamed’s children, and the visa applicant and her sons are yet to meet them; and

    ·the purpose of the visa application is for the visa applicant genuinely to visit only to be here to see the review applicant and his family and to see her other brothers who  will be in Australia.  She will return to Pakistan within the period allocated to her as she does not want to be separated from her husband for more than 3 months.  He will not be able to come as he must look after his widowed mother (he is the eldest son) and run his business.

15. During the hearing, the Tribunal discussed with the review applicant the fact that the Department of Immigration’s Modified Non Return Rate Report (as at 30 June 2013) indicated that people from Pakistan travelling to Australia as visitors were more likely to remain in Australia after the expiry of their visas than visitors from many other countries (4.39%). The Tribunal also discussed with the review applicant the current situation in Pakistan, given the most recent Department of Foreign Affairs and Trade advice to Australian travellers on its Smart Traveller website in September 2015 advised Australians travelling to Pakistan to reconsider travelling there generally due to the unpredictable security situation, including the high threat of terrorist attack, kidnapping and sectarian violence, and not to travel at all to certain areas within Pakistan.  The Tribunal noted that while the DFAT report concentrated on areas that were very violent and/or unstable (including Karachi, Balochistan and the Federally Administered Tribunal Areas), Lahore was nevertheless mentioned as an area in which there had been 2 deadly attacks  there in November 2014 and March 2015.

16. The review applicant made the following points in response to this information:

    ·terrorist incidents can happen virtually anywhere in the world, including Western countries, but this does not necessarily mean that it is unsafe to live in these places;

    ·while there had been some incidents of violence in Lahore, the situation there is generally peaceful and stable and the visa applicant, nor any other family members, has not had any fears regarding safety or problems with the authorities.  Neither the visa applicant nor her family there are from a minority group.  The visa applicant and her family have secure accommodation in a 3 story house and a comfortable lifestyle;

    ·overall, the economic and security situation in Pakistan in general was improving;

    ·the visa applicant has no incentive to remain in Australia but would return to her husband and extended family there, including her brother and his family, her mother and her mother in law, for whom she and her husband are primarily responsible since the death of the visa applicant’s husband’s father;

    ·the visa applicant has a good life in Pakistan and would not need to work or remain in Australia as she has strong family ties in Pakistan and her husband provides them with a comfortable and secure life from his trading business;

    ·she would abide by the conditions that would be put on any visitor visa issued to her, as other family members of the review and visa applicant have for their visits to Australia; and

    ·the visa applicant’s individual circumstances should be looked at, not simply statistical information regarding overstayers and/or violent incidents.

17. The Tribunal gives weight to the fact that the visa applicant has significant family ties as an incentive to return, in addition to a comfortable lifestyle.  While the Tribunal acknowledges that 4 of her 5 brothers reside overseas (3 in Australia at present and 1 in New Zealand), she nevertheless has another brother in Pakistan, plus her husband and her husband’s family (in particular, her widowed mother in law).  The Tribunal accepts that culturally, the visa applicant and her husband (who is the oldest son in his family) are responsible for the visa applicant’s mother in law.

18. The Tribunal acknowledges that the visa applicant does not have a record of travel to and from Australia, but it gives weight to the fact that other family members have visited Australia and departed within the expiry dates of their visas, being:

    ·     Razia Saleem and Muhammad Saleem Kitan (the review and visa applicants’ parents) from December 2010 to March 2011;

    ·     Kashif Saleem (the review and visa applicants’ brother) from November 2014 to January 2015; and

    ·     Razia Saleem (the review and visa applicants’ mother) in 2015.

19. There is no evidence before the Tribunal to suggest that these family members did not abide by their visitor visa conditions while here.  Moreover, the Tribunal gives weight to the fact that other family members (the review applicant and his other brothers) have been granted permanent residence and then citizenship (in the case of the review applicant) and temporary residence (in the case of Abdul and Mohamed) through normal migration channels and there is no evidence before the Tribunal that any of them has not abided by visa conditions. The Tribunal considers the general family history of compliance with migration requirements and visa conditions to be relevant to assessing the situation of the visa applicant, despite her not having travelled to Australia previously, and gives it significant weight in this case. 

20. After careful consideration, and having been provided with more detailed information than was available to the delegate, the Tribunal is satisfied that the visa applicant genuinely intends to visit only, would return to Pakistan at the conclusion of any period granted to her and would abide by any conditions imposed on her visitor visa.

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.

22. The Tribunal notes that the decisions by the delegate to refuse to grant subclass 600 visas to the visa applicant’s sons are not reviewable by the Tribunal.  It also notes the review applicant’s evidence that he did not think that his sister (the visa applicant) would be willing to visit Australia without her children accompanying her as she is their primary carer and part of the purpose of the family reunion is for her sons to meet their cousins in Australia.  As discussed with the review applicant at hearing, the outcome of any future subclass 600 visa applications made by the visa applicant’s sons will be a matter for the Department.  The Tribunal observes, however, that it would still be satisfied of the visa applicant’s incentive to return to Pakistan if she visited Australia accompanied by her sons, given its findings above about her strong family ties (being her husband, mother and brother and her mother in law) to Pakistan, and the history of visa compliance by her close family members to date.

    DECISION

23. 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.

    Alison Mercer
    Member