1511377 (Migration)

[2015] AATA 3934

1511377 (Migration) [2015] AATA 3934 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Kazimi

VISA APPLICANT:  Mrs Hakima Habibullah

CASE NUMBER:  1511377

DIBP REFERENCE(S):  BCC2015/1598070

MEMBER:Suzanne Carlton

DATE:18 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 criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 18 December 2015 at 2:36pm

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 7 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 28 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 the delegate was not satisfied that the applicant genuinely intended to only visit Australia.

5. The review applicant appeared before the Tribunal on 18 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

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. The sponsor arrived in Australia in 2010 and was granted a permanent visa the following year. The applicant married the sponsor in 2013 in Pakistan.  The applicant applied for a offshore partner visa on 31 December 2013.

9. The sponsor has passed his citizenship test and is hoping to attend a citizenship ceremony and be conferred citizenship in the upcoming months.

10. The applicant is currently undertaking university studies in Afghanistan.

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

12. 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)).

13. Ms Habibullah has not previously held any visa in Australia.

14. 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.

15. The sponsor has made certain undertakings that the applicant will not work or study in Australia.  I accept those undertakings as well as that, due to various cultural and linguistic factors and absence of opportunity that Ms Habibullah will not work in Australia or study in Australia for more than three months.  Her principal purpose is to be with her husband, who has no family in Australia and has been awaiting the processing of the spouse visa, consistent with government policy on prioritising such visas, until he gets his citizenship.  I am satisfied that she is will comply with conditions 8101 and 8201.

16. With respect to condition 8503 the applicant has applied for an offshore spouse visa, which is likely to be processed following the applicant’s citizenship grant.  The parties understand that the applicant must be offshore in order to be granted that visa.  I am satisfied that she is aware of the limitations for further visa applications and that she will comply with condition 8503.

17. Condition 8531 is more problematic.  I note the delegate’s concerns that the applicant’s home country is subject to civil unrest and poor security.  The question of whether she would return to Afghanistan and what would prompt her return is at issue.

18. On the other hand, I note that neither the applicant nor her husband have any other relatives in Australia.  Given the cultural import given to the family unit, I accept that all of her other ties are in Afghanistan.  Both her and her husband’s families are overseas.

19. While I accept that Afghanistan is problematic for some returnees, there is nothing evidence in the applicant’s profile that indicates that a return would be problematic for her.  I am satisfied that it is the genuine intent of the applicant to visit Australia temporarily for the purpose of being with her husband.

20. While I have noted certain risks affecting Ms Habibullah’s profile, I have also considered the situation of the parties.  They have no children and have been married since 2013.  There is a pending spouse visa application in accordance with Ministerial Direction 62, which has been on foot for two years and is likely to be taken outside of the scope of Direction 62 in the next year, when the sponsor is granted citizenship.

21. Finally, I have had regard to the Departmental policy in this regard.  The relevant PAM provisions direct that –

    Officers should take a fair and reasonable approach to the genuine temporary stay requirement, particularly if the applicant is in a continuing partner relationship with an Australian citizen or permanent resident.

22. Given the length of time the parties have been apart, the unique circumstances of the sponsor, including his health concerns, and the compelling circumstances the parties are currently facing, I am satisfied that the grant of the visa is appropriate in the circumstances. 

23. The sponsor has been made aware of the potential adverse consequences of the applicant’s noncompliance, both in relation to pending visa applications and sponsorships and any future visa applications and sponsorships relating to either of the parties.

24. The Tribunal has also considered all other relevant matters (cl.600.211(c)). To the extent that there remain risks implicit in the grant of this visa, I consider that the risks may be adequately addressed by the imposition of a bond.

25. 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

26. 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.

    Suzanne Carlton
    Member