1512509 (Migration)

[2016] AATA 3557

1512509 (Migration) [2016] AATA 3557 (22 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nadeem Baig

VISA APPLICANT:  Mr Mohsan Baig

CASE NUMBER:  1512509

DIBP REFERENCE(S):  1502/05071

MEMBER:Linda Symons

DATE:22 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 22 March 2016 at 4:53pm

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 18 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 1 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 Department was not satisfied that he 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 16 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 brother and family. This is a purpose for which a visa in the Tourist stream may be granted.

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.

10. There is no evidence before the Tribunal to indicate that the visa applicant has travelled to Australia previously.

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:

    ·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. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for the visa applicant’s visit to Australia. The review applicant gave evidence that he owns two businesses in Orange; a cheese cake shop and a kebab and pizza shop. He stated that he lives in a three bedroom house with his wife and two children. He stated that besides the two businesses, he owns the house he lives in, an investment property, a car and savings of $35,000.00. He stated that he has two mortgages. He stated that the visa applicant would live with him and he will pay for his airfare and living expenses in Australia.

13. The visa applicant gave evidence that he is a practising lawyer in Pakistan and enjoys his work. He stated that he owns a house in the village and has an office in town. He stated that he has savings of about 1 million rupees. He stated that he is able to pay for his airfare and the review applicant will provide him with accommodation and pay for his living expenses in Australia. He stated that he has no intention of working in Australia. He stated that there is no work he can do in Australia. He stated that he has completed his studies and does not intend doing any studies or training in Australia.

14. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that if the visa applicant gets a visa for 3 months, he would be able to stay here for 2 to 3 months. When asked what the visa applicant would do in Orange for that length of time, he responded that he will take 2 or 3 weeks off and take the visa applicant interstate to Victoria or Queensland. He stated that he and his wife work 7 days a week and it is difficult for him to take time off work. He stated that he would need to employ someone while he is away and his wife would have to continue working while he is away. He stated that the visa applicant applied for a 3 months visa from July to September and would like to come to Australia during the same period this year. He stated that he would be able to have a combined birthday party for his two children.  

15. The visa applicant gave evidence that he would like to come to Australia for a maximum of 2 months. When asked what he would do during that time, he stated that he will stay with his family and see his brother and his family as he did not see much of his brother during his last visit to Pakistan. When asked what would happen to his legal practise during the 2 months he is away, he responded that he can “adjust the cases”, he can extend the hearing dates and a colleague could deal with his cases.    

16. The visa applicant gave evidence that he obtained his law degree on 30 September 2009. He stated he worked for his mentor for 2 ½ years and in 2013 set up his own practise in criminal law. He stated that he does not employ anyone other than a clerk who does his photocopying. He stated that he appears in Sessions Courts mainly in Sialkot but has also appeared in Sessions Courts in Gujarat and Lahore. He stated that during the summer months of July and August the Courts are closed so there is less work. He stated that legal Chambers remain open over that period.

17. The review applicant gave evidence that the visa applicant has a busy legal practise and most of his cases are in the High Court. He stated that the visa applicant wants to become a Judge and has undertaken studies so that he is able to do so. He stated that the visa applicant is focussed on his own success and his goals. The Tribunal put to the review applicant the evidence given by the visa applicant in relation to his legal practise, pursuant to s.359AA of the Act, and noted the inconsistencies in their evidence and its concern that the visa applicant’s legal practise may not be as successful as he claims. He responded that he was sure the visa applicant mentioned going to the High Court in Lahore and maybe he went there with his colleagues.

18. The Tribunal is of the view that the proposed duration of the visa applicant’s visit is of concern in view of the circumstances. Firstly, the evidence of the review applicant is that he and his wife work 7 days a week and it is difficult for them to take time off work. His evidence is that he could take 2 or 3 weeks off work to take the visa applicant interstate. The visa applicant would therefore not have much opportunity to spend time with the review applicant even if he were here for 3 months and it is not clear what he would do while the review applicant and his wife are at work. Secondly, the visa applicant is a sole practitioner and he is responsible for the success of his practise. The review applicant gave evidence that his career goals are important to him. His willingness to leave his practise for 2 months, even if the Courts are in recess at that time and a colleague would be assisting while he is away, is not consistent with him having a busy practise and his career goals being important to him.

19. The Tribunal raised as an issue with the review applicant its concerns in relation to the lengthy time the visa applicant proposes being away from his practise, that this was not consistent with him having a busy practise and that his willingness to be away from his practise for this lengthy period may indicate that he has no intention of returning to it. He responded that the visa applicant will give someone his power of attorney to run his practise while he is away. The Tribunal does not find this response to be convincing.

20. The Tribunal asked the review applicant what incentive the visa applicant has to return to Pakistan at the end of his permitted stay. He responded that Pakistan is his home country, he has a good life and is happy in Pakistan. He stated that his father used to live in Dubai but the visa applicant did not want to live in Dubai. He stated that the visa applicant will inherit the family property and if he comes to Australia there will be no one “to take our name there”. He stated that the visa applicant would not leave their mother. When asked what would happen if the visa applicant came to Australia, changed his mind and decided not to return to Pakistan, he stated that he would not like the lifestyle here and he cannot leave their mother.

21. The Tribunal has also considered other relevant matters. The review applicant gave evidence that the visa applicant is engaged to be married to their first cousin. He stated that when they were young their respective parents decided that they should get married and the visa applicant has to marry her. When asked when the visa applicant plans to get married, he responded that he has not fixed a date yet. The Tribunal is not satisfied that the visa applicant’s engagement is a strong incentive for him to return to Pakistan.

22. The review applicant gave evidence that his mother has visited Australia twice and his father has visited Australia on three occasions. He stated that his father is currently in Australia and his visa is valid until August 2016. He stated that his father plans to return to Pakistan in April 2016 because his son in law is returning from Saudi Arabia. He stated that his parents have always complied with the conditions of their visas.

23. The review applicant gave evidence that he is prepared to lodge a security bond in the sum of $45,000.00 and lodge his passport if required to do so.

24. The Tribunal discussed with the visa applicant country information on Pakistan in relation to security incidents in the Sialkot district and Islamabad targeting lawyers and the Courts[1]. He responded that he was not involved in the incident in Daska in May 2015. He stated that he is not a member of the Bar in Daska and Daska is 20kms to 25kms away from where he lives. When asked if he was involved in the protests by lawyers around the country following that incident[2], he responded that he was not as he is a practising lawyer and does not have time to get involved in such activities. He stated that there were “small incidents” around the country but he has not personally “faced any incidents so far.”

    [1] Twin suicide attack in Islamabad District Court leaves 11 dead, 25 injured, Tribune, 3 March 2014. (

    [2] Dawn, Bar president, lawyer killed in clash between lawyers and Police in Sialkot, 25 May 2015. (

25. The Tribunal also discussed this country information with the review applicant and raised as an issue with him its concerns that this may be an incentive for the visa applicant to remain in Australia. He responded that Islamabad is 6 hours away from where the review applicant lives. He stated that the visa applicant lives in the Sialkot district and was not involved in the incidents in 2015 where two lawyers were killed. He stated that there have not been any problems since last year. He stated that everything is very secure and it is very peaceful in Pakistan for lawyers. He stated that the visa applicant does not have a security guard and his life has not been threatened. His response does not alleviate the Tribunal’s concerns.  

26. Having considered all of the evidence, the Tribunal is not satisfied that the incentives for the visa applicant to return to Pakistan outweigh the incentives for him to remain in Australia.

27. For the above reasons, the Tribunal is not 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 not met.

    DECISION

28. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Linda Symons
    Member