1512667 (Migration)

[2015] AATA 3947

1512667 (Migration) [2015] AATA 3947 (24 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nabeel Mahmood

VISA APPLICANT:  Mr Sana Bint-E-Zainab Mahmood

CASE NUMBER:  1512667

DIBP REFERENCE(S):  BCC2015/1924866

MEMBER:Meena Sripathy

DATE:24 December 2015

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 24 December 2015 at 11:45am

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 6 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 4 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 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 she indicated she would be travelling with her parents, she would have no family members remaining in Pakistan, she was no longer studying or in employment and therefore the delegate was not satisfied that she had sufficient incentives to return to Pakistan and strong family ties in Australia and on that basis was not satisfied that her expressed intention to only stay temporarily in Australia was genuine.  

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is a 23 year old female of Pakistani nationality.  She applied for the visa for the purpose of visiting her family members in Australia.  She indicated in her application that she has previously held student visas in Australia and is in the process of applying for re-admission to universities in Sydney and Melbourne for continuation of her study here. She provided details of family members in Australia. 

8. On 13 September 2015 the review applicant provided the following information to the Tribunal:

   ·Details of the residency status of himself and his siblings in Australia

   ·His father worked for 30 years for UNHCR as head of payroll and served in a number of countries around the world.  He was most recently working in Beirut, Lebanon.  He recently retired from this employment and has returned to Pakistan.

   ·His parents have been granted Visitor visas to travel to Australia

   ·His parents own a house in Islamabad and an investment property in Lahore.

   ·The visa applicant, his sister, was living with him in Sydney and studying at UNSW. She took a break from her studies for medical reasons and returned to Pakistan. Her stay was prolonged unexpectedly and during this time her student visa expired.

   ·She has recently been engaged to be married to a man who is studying in Lahore, Pakistan.

   ·The family fully understands the importance of maintaining legal status and are law abiding citizens.

   ·Given the situation and culture in Pakistan it is difficult for the visa applicant to remain alone there when her parents travel to Australia for their visit.  They are required to travel by February 2016. 

   ·Details of the visa applicant previous overseas travel to countries including various European countries, the UK and USA  are provided, supported by relevant pages from her passport.

   ·The review applicant takes full responsibility for the visa applicant’s travel and compliance with visa conditions, and also attaches statutory declarations from his siblings guaranteeing their support.

   ·Payslip evidencing review applicant’s employment and salary

   ·Statement of Account with UNFCU relating to review applicant’s father’s financial circumstances, indicating his position at UNHCR Islamabad and substantial savings account balance as at 31 August 2015.

9. Relevant details from the review applicant’s submission, including the visa status of the review and visa applicants and siblings in Australia, and her own travel and visa history, have been confirmed by the Tribunal from Departmental records. 

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of accompanying her parents when they travel to Australia and visiting her siblings who reside here. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)). The visa applicant has previously travelled to Australia on Tourist and Student visas between 2008 and 2014.  Departmental file and movement records provide no indication of non-compliance with visa conditions in relation to any previous visas held.  File records indicate she was granted leave for personal reasons at the time of her departure from Australia in 2014.  She currently has a student visa Subclass 573 application commenced in November 2015, pending.

13. 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(3)): 8101 – must not work in Australia ; 8201 – must not engage in study or training in Australia for more than 3 months. The Tribunal notes that condition 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia is a discretionary condition which may be imposed on this visa.

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the available information the Tribunal is satisfied that the visa applicant is a 23 year old female of Pakistani nationality. She intends to travel to Australia with her parents who have been granted visitor visas.  She has three brothers and one sister in Australia, all of whom reside here on permanent visas obtained through the skilled migration program. The visa applicant has held Tourist and Student visas in Australia since 2008.  There is no evidence of non compliance with visa conditions on her part or in relation to any of her family members. The Tribunal accepts on the evidence of the review applicant’s submission and Department records that the visa applicant intends to return to Australia to complete her university course following her visit to Australia. It also accepts on the evidence of the review applicant’s submission that she has recently become engaged to be married in Pakistan.  It notes that her fiancé is included in her student visa application currently pending before the Department, as an accompanying family member. While the Tribunal accepts that the balance of the visa applicant’s immediate family resides in Australia, and as she will be traveling with her parents, she will have no immediate family members left in Pakistan, it also accepts that her intention is to resume her study in Australia. The Tribunal accepts that the visa applicant has applied for a student visa to enable her to resume her studies.  There is nothing before the Tribunal to indicate that she will not comply with the conditions on her visitor visa and return to Pakistan, and pursue her student visa application to further her study intentions. In reaching this conclusion the Tribunal gives significant weight to the absence of any adverse migration compliance history in respect of the visa applicant or any of her close family members in Australia and also her own travel history to Australia and numerous other countries around the world. 

15. 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

16. 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.

    Meena Sripathy
    Member