1511804 (Migration)

[2016] AATA 3224

1511804 (Migration) [2016] AATA 3224 (10 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Asif Khan

VISA APPLICANT:  Miss Taslim Nawaz

CASE NUMBER:  1511804

DIBP REFERENCE(S):  BCC2015/1956080

MEMBER:Melissa McAdam

DATE:10 February 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 10 February 2016 at 2:15pm

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 28 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 7 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 visa applicant provided the following information in her visa application:

   a.The visa applicant is a 50 year old single Pakistani woman from Peshawar, Pakistan. She wants to visit Australia between 20 July 2015 and 5 October 2015. She wants to travel here with the wife and daughter of the review applicant, her brother.

   b.She has another brother, Muhammad, and two sisters, Rubina and Raheela, in Pakistan. She lives with her brother Muhammad there.

   c.She is currently unemployed and receives a pension in Pakistan. She does volunteer social work with disadvantaged people and has done this work for the past five years.

   d.She is financially independent and has adequate means to support herself in Australia. Her family in Australia will also provide financial support if required. She will stay at her brother’s home in Darwin.

   e.She was refused a Visitor visa in April 2015.

   f.She is legally responsible for the care of her 14 year old nephew who regards her as his mother and lives with her.

   g.She is the supervisor for her deceased parents’ property in Pakistan.

   h.She submitted the following documents:

   i.Copy of her Pakistani passport

   ii.Copy of her Pakistani National ID Card

   iii.Copy of her Pakistani Birth Certificate

   iv.Copy of her Bank Statement showing a closing balance of 1,110,320 Pakistan Rupee[1] as at 6 June 2015.

   v.Copy of her Pension Slip

   vi.Copies of Property Titles and Lease papers

   vii.Copies of Documents giving custody and care of her nephew, ‘Zayam Ahmad’, to the visa applicant.

   viii.School papers for Zayam Ahmad addressed to the visa applicant.

   ix.Death Certificates for the applicants’ parents.

   x.Recommendation Letter from ‘Literate Masses’ for the visa applicant as a Volunteer.

   xi.Letter of Engagement of the visa applicant as a volunteer at ‘Literate Masses’, funded by the Swiss Embassy.

   [1] Approximately AUS$ 15,000.

5. The review applicant provided the following information in the visa application:

   a.The review applicant is the brother of the visa applicant. He is an Australian citizen. He works for the Multicultural Council of the Northern Territory as a Project Officer. He has been employed there for two months.

   b.He wants to bring his sister here for a break as she was responsible for helping raise her siblings. She was also responsible for caring for their mother and father until their  deaths.

   c.He wants to take the visa applicant to visit sites in the Northern Territory and South Australia, NSW and Tasmania. They wish to share Eid-Al Fitir and Eid-Al-Adha together.

   d.He submitted the following documents:

   i.Copy of his Australian passport.

   ii.Copy of his Australian Citizenship Certificate.

   iii.Copy of his NT driver's licence

   iv.Copy of his Pakistani NIC

   v.Family Registration certificate

   vi.Copy of his wife’s and child’s Australian passports

   vii.Copy of his Pay Slip

   viii.Copy of his Bank Accounts statements showing a net credit balance of approximately $70,000 as at June 2015

   ix.Copy of his employment contract.

   x.Copy of his Lease agreement

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the visa applicant had been previously refused a visitor visa; the lack of strong financial incentive to return; and the economic, civil and security situation in Pakistan.

7. The review applicant submitted the following documents to the Tribunal:

   i.2009 School Fee Card for ‘Zayam Ahmad’ addressed to the visa applicant.

   ii.Letter from Joe de Luca, CEO, Multicultural Council NT, supporting the visa applicant’s visa application.

   iii.Letter from Peter Styles, MLA, supporting the visa applicant’s visa application.

   iv.Letter from Natasha Griggs, MP, supporting the visa applicant’s visa application.

8. The review applicant appeared before the Tribunal on 10 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The following is a summary of the information provided by the review applicant:

   a.The review applicant explained that the Volunteer Agreement between his sister and the organisation Literate Masses, was detailed and formal because the Swiss Embassy was involved and because it involved the regular payment of an honorarium to his sister.

   b.The review applicant explained that the guardianship documents were created in 2015 because, as per cultural tradition, such guardianship arrangements are agreed upon verbally and it is not customary to put them in writing.  When his sister’s visa application was refused for lack of documentation he had the documents legally drawn up and executed to reflect the already existing agreement.

   c.The review applicant acknowledged there is some insecurity and uncertainty in Pakistan. However his family and tribal area is unaffected by the security concerns.  His sister has a great deal of family and tribal support in the home area and she is not faced with any security threats. The review applicant’s wife and daughter travelled back to the family area in 2013 and remained until about January 2015 to look after the review applicant’s sick mother. They faced no security problems and had no fears for their safety while they were there. The review applicant also was there for three months in recent years to help care for his father and he faced no threats to his security or experienced any fears for his safety.

   d.His family and relatives live on the safe side of the region. They have no need to travel to the areas, such as the border area, which may be insecure.

   e.Only the review applicant, his wife and daughter are here in Australia. The rest of the visa applicant’s family and relatives live in Pakistan. The visa applicant has never travelled overseas before because the review applicant is her only family member living overseas. The review applicant’s sister has no wish to stay in Australia. She is in her 50s, has limited education, and does not speak English. The review applicant initially applied for the visa applicant to visit Australia for six months but she was reluctant to come for so long. She told him she would get bored and could not leave her nephew for this amount of time.

   f.The review applicant is willing to lodge a substantial security bond for his sister’s visit to Australia. He has financial plans including a planned mortgage so to lose this money would be difficult for him.

   g.The applicants’ father passed away in about 2010 and their mother passed away last year. So it has been a period of mourning and grieving for the family in Pakistan. The review applicant wants to give his sister a break from this and the opportunity to enjoy some holidays with him in Australia.

   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 purpose of visiting her brother and his family 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)). The visa applicant has not previously held a substantive Australian visa so there is no evidence of former compliance or non-compliance before the Tribunal.

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. The Tribunal accepts the visa applicant is from a financially comfortable family in Pakistan and receives a regular pension payment so is able to support herself. The Tribunal accepts she has substantial savings in her bank account in Pakistan. The Tribunal also accepts that the review applicant has substantial savings and income and can well support the visa applicant while she is in Australia. In these circumstances the Tribunal considers that there will be no need or desire for the visa applicant to work while in Australia. The Tribunal is satisfied that the visa applicant does not intend to work in Australia.

14. There is no evidence or indication before the Tribunal that the visa applicant wants to study in Australia. The Tribunal is therefore satisfied the visa applicant does not intend to study in Australia.

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

16. The Tribunal accepts that the visa applicant is the guardian and carer of her nephew, as per traditional custom in her local area. She and the review applicant provided clear and consistent evidence in this regard and there is no information before the Tribunal to create doubt about this arrangement. The Tribunal also accepts that all of the visa applicant’s family and primary relatives live in her home area in Pakistan apart from the review applicant, his wife and his daughter who are in Australia. The Tribunal therefore finds that the visa applicant’s family ties in Pakistan are much stronger than those in Australia.  The Tribunal  considers this situation creates a strong incentive for the visa applicant to return to Pakistan.

17. While the Tribunal notes that the visa applicant does not have paid employment in Pakistan it considers that her commitment to voluntary work in her home region represents valued endeavour and responsibilities which would readily be something the visa applicant would want to return to.

18. The Tribunal notes information that there are levels of insecurity in some parts of Pakistan including the SWAT Valley in the applicant’s Khyber Pakhtunkhwa province.  The Tribunal notes further that in December 2015 there was bombing at a government office in the visa applicant’s birthplace, Mardan.  However the visa applicant is currently residing in Peshawar which the Tribunal accepts is reasonably distanced from the Afghan border and other areas of insecurity. The Tribunal notes that there have been attacks on targets in Peshawar however these have been high level and/or army affiliated targets and the attacks have been very sporadic. The Tribunal notes that the majority of the visa applicant’s family and relatives continue to reside in her home region and that the review applicant and his family have willingly and recently spent significant periods of time back in their home area of Pakistan.  In these circumstances the Tribunal considers that the security situation where the visa applicant resides, while not without risk, would not necessarily cause her to not to return to Pakistan.

19. The Tribunal accepts that the proposed duration of stay, up to three months, is reasonable given it will be the visa applicant’s first visit to Australia and her first overseas travel, and it is a long distance to travel between Pakistan and Australia. The Tribunal notes that the review applicant has made an extensive sightseeing plan for his sister involving travel to various parts of Australia. The Tribunal accepts that the proposed duration of stay would comfortably accommodate the proposed program for the visa applicant’s visit to Australia.

20. The Tribunal notes that the review applicant is willing to lodge a security sum for the visa applicant’s visit to Australia and accepts this will provide further motivation for the visa applicant to abide by visa conditions and not overstay in Australia.

21. In sum the evidence before the Tribunal does not indicate that the visa applicant wants to visit Australia for any purpose other than a genuine temporary stay to see her brother, his family, and sights in Australia.

22. 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

23. 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.

    Melissa McAdam
    Member