1511517 (Migration)

[2015] AATA 3718

1511517 (Migration) [2015] AATA 3718 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Syed Afaq Ali Shah

VISA APPLICANT:  Mr Syed Zahoor Ahmed Shah

CASE NUMBER:  1511517

DIBP REFERENCE(S):  BCC2015/2133667

MEMBER:Amanda Goodier

DATE:25 November 2015

PLACE OF DECISION:  Perth

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 25 November 2015 at 12:09pm

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 14 August 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 26 July 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 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 25 November 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 family visit. 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 never held a visa for Australia.

11. 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.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

13. The visa applicant is 64 years of age and currently resides in Peshawar, Pakistan.  He indicates he ran his own business for 30 years and now manages his assets in the form of property and bank certificates.  He has available about AUD$24,000 to fund his visit to Australia evidenced in the form of a balance certificate issued by the Government of Pakistan, National Savings Centre.  A copy of a rent deed was provided indicating the visa applicant has entered into a lease agreement to lease property to another for a period of 12 months.    He indicates he owns property in Pakistan from which he earns an income and has significant savings from which he earns dividends.  This income enables him to have a reasonably comfortable life in Pakistan.  He indicates his daughter and son-in-law remain in Pakistan.  He also has a number of siblings who are married and live with their families in Peshawar.  He also has a sibling living in the UK and another in Tanzania. 

14. The review applicant indicates he is a permanent resident in Australia.  He has recently completed his PhD at the University of Western Australia, submitting it in August and it is still under examination. Taylors College has employed him on a casual basis and he provided a copy of his contract as well as a pay slip indicating for that fortnight an income after tax of $2,122-.  He is also working as a teaching assistant at UWA on a contract renewed each year.  He submits his employment and income indicate he is financially stable.  He states he is not dependent upon his father and his father is not dependent upon him in any way.  The Tribunal indicated that his employment is casual and one salary slip is not indicative of a regular income. The review applicant provided information that indicated he is highly likely to retain his employment into the future. 

15. The applicant states that he and his family have been unable to visit his father for some time because of his education constraints and financial cost of airline tickets.  He last visited his father in early 2015 for one week with his wife and children remaining in Australia. He has recently had a son and would like his father to visit to spend time with him and his family.  His father is required to return to his home to look after his property and other assets in Pakistan. 

16. The review applicant indicates he is able to provide accommodation for his father as well as transport. His father will pay for his own travel expenses.

17. The review applicant has never had any family member visit.  He sponsored his mother-in-law has to visit to assist his wife while she was pregnant with her last child.  She complied with her visa conditions and departed Australia prior to the expiry of her visa.  

18. The review applicant has indicated he is happy to provide any surety about his father’s return to Pakistan prior to the expiry of any visa granted. 

19. At the hearing, the Tribunal discussed with the review applicant general information produced by DFAT which indicated that Peshawar in Khyber-Pakhtunkhwa was a dangerous area with a volatile security environment. DFAT recommends that Australians do not travel to the area[1]. The Tribunal put to the review applicant that this raised general concerns that his father may not wish to return there.  The Tribunal also discussed with the review applicant statistical information about the relatively high non-return rate of Pakistani passport holders. The most recent figures for Pakistan were 4.39% for the year ended June 2013, which was over 6 times the global average[2]. The Tribunal put to the review applicant that this raised concerns that as a Pakistani passport holder, his father may seek to remain in Australia, as other Pakistani passport holders have done.  In addition, and as the Tribunal discussed with the review applicant, it considers that general information about the security problems in the area where the visa applicant lives and the relatively high non-return rate for Pakistani passport holders generally raises significant concerns that the visa applicant may seek to remain in Australia to avoid returning there.

    [1] DFAT ‘Pakistan’  at smartraveller.gov.au, accessed 16 November 2015

    [2] DIBP ‘Modified Non-Return Rate Quarterly Report Ending 30 June 2013’ at accessed 15 June 2015

20. The review applicant indicated that he is aware of these factors but his father is elderly and has a life in Pakistan to which he wishes to return.  The review applicant indicated that he has complied with the laws of Australia and has no intention of assisting his father to not comply with the law in Australia.  He also referred to more recent country information that indicated the situation in Pakistan has improved in the last 12 months and especially in Peshawar.  He also indicated that the majority of those who overstayed were younger and less settled than his father.

21. The Tribunal accepts that the visa applicant is elderly and that he will not work or study in Australia. The Tribunal accepts he has personal and financial ties in Pakistan. 

22. Weighing up all the relevant matters in this case, in summary, the Tribunal accepts that there is a clear and legitimate purpose for the visa applicant’s proposed visit to Australia, particularly to spend time with his son and his family, and that he has personal, family and cultural ties to Pakistan. The Tribunal has also considered the assurances made by the review applicant that the visa applicant’s stated intention to visit Australia temporarily is genuine, and the offer of a security bond.

23. The Tribunal considers the visa applicant’s personal and financial situation overcome the concerns the Tribunal has that the visa applicant does not genuinely intend to visit Australia temporarily.   The Tribunal is satisfied that the visa applicant’s personal and financial circumstances will encourage the visa applicant to return to Pakistan after an approved stay.

24. The Tribunal has had regard to relevant matters and 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

25. 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.

    Amanda Goodier
    Member