1517505 (Migration)

[2016] AATA 4296

1517505 (Migration) [2016] AATA 4296 (31 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Usman Ahmad Khan Niazi

VISA APPLICANT:  Ms Mariam Niazi

CASE NUMBER:  1517505

DIBP REFERENCE(S):  BCC2015/2430859

MEMBER:Meena Sripathy

DATE:31 August 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 31 August 2016 at 2:57pm

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 13 October 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 21 August 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 of concerns that the applicant would be travelling with her parents and be leaving no family members behind in Pakistan, she had only recently returned from an extended visit to Australia, and had recently completed her degree.  Because of these concerns the delegate was not satisfied that the visa applicant’s intention to only visit Australia was genuine.  

5. The review applicant appeared before the Tribunal on 31 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s father in law was also present at the hearing.  The Tribunal was impressed with the review applicant’s candour and directness in providing his evidence and responding to the Tribunal’s questions and it finds him to be a credible witness.  The visa applicant’s evidence was substantially consistent with his evidence and the Tribunal was also satisfied that she was a credible and honest witness.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant is the 24 year old sister of the review applicant.  She is unmarried and lives with her parents and grandmother in the family home in Gujranwala, Punjab.  She provided with her application documents confirming her identity, including her passport and birth certificate; transcript of university results relating to a Bachelor in Business Administration degree completed in 2014 and evidence of her parents property ownership and father’s financial statements. 

8. Before the Tribunal the review applicant has provided the following further evidence in support of the application: written submissions addressing the delegate’s concerns referred toin the decision statement; receipt for registration fee for a ACCA course; letter certifying completion of her Bachelor degree dated 23 September 2015; evidence of application to sit MBA test at Gift University on 15 October 2015 and letter dated 16 October 2016 indicating acceptance for admission into the MBA program; evidence of mother’s ownership of visa applicant’s family home; evidence of the visa applicant’s bank statement relating to a newly opened joint bank account with her father; affidavit of financial support from the visa applicant’s father. Prior to the hearing in August 2016, the review applicant provided further documents including evidence of property ownership in the visa applicant’s name dated January 2016, a letter setting out details of family members who have visited Australia and current details of his father’s bank account balance.

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 purposes of visiting her brothers and their families in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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 Tribunal accepts on the consistent oral and written evidence of the review and visa applicants, and departmental records that the visa applicant has previously visited Australia on three occasions in 2007, 2011 and 2014-15 and has departed within the visa period on each occasion.  There is no other information before the Tribunal to indicate any breach of conditions by the visa applicant during these visits. The Tribunal finds that the visa applicant has complied substantially with conditions of the last visa held.  The Tribunal has also considered the compliant visa history of the review applicant, his brother and his parents. 

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.600.611 (3): 8101 – must not work in Australia; 8201 – must not engage in study or training in Australia for more than 3 months.

13. In considering the issue of compliance with conditions and the visa applicant’s genuine intentions, the Tribunal has also considered all other relevant matters (cl.600.211(c)).  Having regard to all of the written, oral and documentary evidence before it, it makes the following findings.  It accepts the visa applicant is an unmarried woman who is fully financially dependent on her parents and lives at home with her parents and grandmother.  It accepts that she completed her Bachelor’s degree and is currently undertaking an ACCA  qualification at an educational institution in Gujranwala which involves full time study and is three years in duration.  She has completed her first year.  It accepts that she has plans to continue her study after that, and possible undertake a Master’s degree.    Regarding her family ties, the Tribunal accepts that the visa applicant has her parents, grandmother, numerous aunts, uncles and cousins in close proximity to her in Pakistan and she is in regular and close contact with her family there.  In Australia she has her two brothers and their respective families.  The Tribunal accepts, on the documentary evidence of land ownership and bank statements provided, that the visa applicant’s father is a property developer and has significant property and cash resources and that he fully financially supports the visa applicant and has adequate financial capacity to do so.  On the basis of these findings, the Tribunal is satisfied the applicant has significant close family ties, accommodation and secure financial circumstances in Pakistan and these are factors which would encourage her to return following a visit.  It is also satisfied that her current course which runs for another two years, provides a significant incentive for her to return to Pakistan after a visit. 

14. The Tribunal notes the concerns identified by the delegate in the decision record, specifically that the visa applicant was at that time contemplating travel with her parents, leaving no close family members behind in Pakistan, that she had at that time just completed her bachelor’s degree program, had only recently returned to Pakistan from an extended visit to Australia, and that she had provided no evidence of her own income or property in Pakistan.  However, having discussed these matters, and more, at some length with the review and visa applicants at hearing, and with the additional evidence submitted,  the Tribunal is not concerned that any of these factors suggest the visa applicant’s intentions to only visit Australia are not genuine.  It accepts that the visa applicant had previously travelled to Australia with her parent or parents and they all complied with visa conditions and departed within the visa period each time.  It accepts, as an unmarried young woman who is engaged in full time study, she is fully financially supported by her parents and this is both culturally and otherwise acceptable.  The Tribunal acknowledges that while had not indicated any future study plans at the time of making the visa application, she has explained her reasons for this to the Tribunal and is now engaged in a three year course, which provides a significant incentive for her return at this point in time.  Finally, the Tribunal accepts the explanation for her desire for a further visit to provide support to her brother’s with their families and spend times with her nieces and nephews. 

15. The Tribunal also discussed with the review applicant and visa applicant country conditions in Pakistan and put to them independent information that indicates the political and security situation has at times been volatile and violence and this may discourage her from returning.  In response they each said, consistently, that neither the visa applicant nor her family have been affected by adverse security incidents in the area they live.  The visa applicant has continued to attend college and school without incident and the property she lives in is secure and protected.   She confirmed that she has never experienced any issues affecting her security.  The review applicant indicted that he has travelled back to Pakistan several times in recent years, including twice in 2014 and he had no problems.  They confirmed the family is Sunni Muslim.  They are not involved in any religious or political groups.   Having considered the applicants’ response and the visa applicant’s particular circumstances, in light of the independent information before it regarding country conditions in Pakistan, the Tribunal is satisfied that it is not likely to be a factor which discourages the visa applicant from complying with conditions.

16. Finally, the review applicant mentioned to the Tribunal at the end of the hearing that his parents have lodged a Contributory Parent visa application some 8-9 months ago and the visa applicant is included in that application as a dependent.  They are awaiting the outcome of that application and would not do anything which would jeopardise its successful outcome. The review applicant emphasised that he and his family are well aware of lawful pathways to migration to Australia and they will follow these if she wishes to remain in Australia, as he and his brother have done in the past. He emphasised the compliant migration history of his parents and sister to date.  The Tribunal has verified this information from Department records and accepts that the visa applicant is included as a dependent applicant in a pending Contributory Parent application.  It also accepts that the applicant’s close family members have demonstrated favourable visa compliance histories over many years and there is no reason to believe the visa applicant would not continue to maintain this impeccable record.  

17. Having considered all of the above, 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

18. 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