1517651 (Migration)

[2016] AATA 4457

1517651 (Migration) [2016] AATA 4457 (26 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abid Ali Chaudhary

VISA APPLICANT:  Ms Nooreen IQBAL

CASE NUMBER:  1517651

DIBP REFERENCE(S):  15/02/06730

MEMBER:Christine Cody

DATE:26 September 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 26 September 2016 at 11:41am

STATEMENT OF DECISION AND REASONS - APPLICATION FOR REVIEW

SUMMARY

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 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 4 September 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. The primary purpose of the application was for the visa applicant to visit her brother, the review applicant, who is a travel agent and an Australian citizen, as well as another brother and nephew, and their families.

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 applicants provided application forms as well as statutory declarations. A number of supporting documents were supplied to the Department, including the visa applicant’s ID card showing that she lives in Jhanda Chichi, Rawalpindi, Pakistan; a family register showing the details of the immediate family; a copy of the visa applicant’s passport issued 20 December 2012 (showing no prior travel); a copy of one page from the visa applicant’s earlier passport showing a 6 month visa issued by the UK,  exit stamps for 23 April 2012 from Pakistan, returning to Islamabad on 7 August 2012; a copy of a land register showing that the visa applicant owns a share in 1/10 of a parcel of land and an undertaking that she is the owner in possession of the house there, including two shops, and that she receives rent from the property; financial information including a bank account for the visa applicant showing a regular salary and a large bank balance between July 2014 and August 2015; and information about the visa applicant’s employment. There is also a certified copy of the review applicant’s identify page of his passport; a paid certificate of travel insurance for the visa applicant, details of bank accounts for the review applicant and his travel agency business showing significant funds.

5. By way of background generally, the visa applicant is a 52 year old woman from Rawalpindi, Punjab, Pakistan. She has never been married. The visa applicant and the review applicant are siblings. The Review applicant is an Australian citizen who has been residing in Sydney since 1984. His wife is also an Australian citizen; they own a four bedroom house in Sydney and are able to provide board and other expenses for the visa applicant while she stays here for a holiday. He has operated his travel business (with his wife) for many years and he guarantees that his sister will return to Pakistan before the expiry of visa, and will abide by all conditions of the visa while in Australia.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because while acknowledging her intention in visiting Australia, the delegate considered that there was an absence of information about any enduring personal ties to Pakistan, and the information provided shows that she has personal ties to Australia. The delegate was not satisfied that she would have sufficient personal incentive to depart Australia at the end of a temporary say. The delegate noted she had previously travelled to the United Kingdom some time ago and complied with the conditions of the visa.   He also noted that she had provided a letter about her land in Pakistan, but no evidence to support this. The delegate noted that she had previously been refused a visa on two occasions, which she failed to declare in her application form. The delegate said that whether this was deliberate or inadvertent, the omission undermines the overall credibility of the expressed intention to stay only in Australia temporarily. In reaching a decision, the delegate took into consideration country information published by the Australian Department of Immigration and Border Protection and also other publicly available information on the civil and political situation in Pakistan. The delegate noted that there are a statistically significant number of Pakistani applicants who do not comply with their visitor visa conditions and others who seek to engage Australia's protection obligations.

7. The review applicant was represented in relation to the review by his registered migration agent. The Tribunal wrote to the review applicant, informing him that on the evidence before it, it was unable to make a favourable decision. He was invited to attend a hearing before the Tribunal[1], and it was noted that the Tribunal may wish to take evidence from the visa applicant.

   [1] He sought a postponement of the first scheduled hearing date on the grounds that he was having an operation. The Tribunal granted the postponement.

8. The review applicant appeared before the Tribunal on 21 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone, and the review applicant’s wife in person. The Tribunal hearing was conducted in the English language. The agent did not attend.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. The Tribunal accepts that one of the purposes of the visit is to visit her brother. The visit to siblings is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether they have complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

13. The visa applicant has never before travelled to Australia; this is confirmed by Departmental records. The Tribunal is prepared to accept the familial relationship, on the basis of the oral evidence, and the documents provided. As the visa applicant has not previously travelled to Australia, there is no relevant Australian migration history for the Tribunal to consider (previous applications to come to Australia are referred to below).

14. 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.

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

16. The evidence before the Tribunal, which it accepts, sourced from the review applicant, the review applicant’s wife and the visa applicant (some of which is supported by documentation) is set out below.

17. The visa applicant is a 52 year old unmarried woman who was the youngest sibling of the family. She is a Sunni Muslim. Her role was essentially to look after everyone, including her parents, and she herself never married. The parents died in about 2005/2008. The visa applicant occasionally worked in her life as a casual teacher. She lives in a housing complex of about six homes; she lives in her own home, and her siblings and their family, as well as her sibling’s previous wives and their families, live in other homes in the complex. She spends her time with her family and friends, and occasionally working (her last work was in 2015). She receives rent from some of the homes in the complex, and is otherwise supported by her brothers.

18. In considering whether the visa applicant intends to comply with condition 8101, the Tribunal discussed the proposed financial arrangements for the visit to Australia. The evidence was that the review applicant and his wife will cover the visa applicant’s expenses. They will provide accommodation, meals, transport and all other incidentals during the stay, as well as the airfares. The visa applicant also has her own money.

19. The Tribunal accepts that the visa applicant will live with the review applicant and his wife during her proposed stay in Australia, and that her living expenses in Australia will be paid for by them or by the visa applicant. Having regard to her age and her current financial situation (funds in the bank, rental property, and support from her siblings), the Tribunal is not satisfied that the visa applicant is coming to Australia with the intention of working. The Tribunal is satisfied that the visa applicant does not need to or want to work while in Australia and therefore the Tribunal is satisfied that the visa applicant intends to comply with a condition not to work in Australia.

20. There is no evidence before the Tribunal to indicate that the visa applicant wishes to or intends to engage in study or training whilst in Australia.

21. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The visa application form states that the visa applicant would like to visit for a two month period. The review applicant and his wife both indicated that they visit family members in Pakistan, including the visa applicant, however they are busy with their business, and they appreciate when their relatives can come to visit them in Australia. Further, because the visa applicant has spent all of her life looking after the review applicant’s parents, they would like to reward her with a holiday to Australia. It was noted that the review applicant was not the only brother who wanted to reward the visa applicant in this regard. The visa applicant had already travelled to the UK to visit the brother Yousaf (now a permanent resident) in 2012 (discussed further below).

22. The Tribunal has also considered the visa applicant’s family ties in Australia and Pakistan. The family ties in Australia are the review applicant and his immediate family (his wife who attended the hearing, and his son, who is studying accountancy and working at a government Department), as well as:

    ·     The brother Amjad Ali Chaudhary.

    ·     Nephew Asad Ali Chaudhary.

23. The visa applicant does however have a number of relatives in Pakistan as follows:

    ·     In the complex, as noted above, there are relatives including the brother Asif Ali who lives there with his wife. Other brother’s former wives also reside there.

    ·     The brother Imtiaz ali (a police officer) and his current wife.

    ·     The sister Farhart Iqbal who is 2 years older than the visa applicant. She is married with 3 girls and 2 sons – she has never come to Australia. She resides in Mandra – about 20-25 km away from Rawalpindi.

24. The Tribunal accepts that the visa applicant experiences a sense of community in the place where she has lived all of her life, and that she spends her time either involved in casual work, or watching TV, praying, seeing relatives, welcoming guests to her home and engaging in gossip. The Tribunal accepts that while the applicant has some relatives based in Australia, the review applicant and his wife to travel back to Pakistan, where she can see them, and the Tribunal also accepts that she has personal ties and a way of life which are an incentive for her to return to Pakistan at the end of the visit.

25. The Tribunal noted that one of the reasons why the delegate refused the application was that the application form did not reflect that she had made previous applications to come to Australia. The review applicant said that the visa applicant filled out form, not him, and he doesn’t know why it was not declared. Given that English is not her first language; the Tribunal is prepared to accept that this was an oversight. In particular, the Tribunal notes that the spelling of her name and her date of birth in the previous application is identical to that declared in the current application; in the circumstances, it does not appear that there was an intention to deceive. The Tribunal is prepared to give the benefit of the doubt in this regard.

26. The Tribunal was interested in why the previous applications had been refused. The Tribunal was able to access Departmental records in relation to one of the refusals (May 2008). This refusal noted that the visa applicant had said that she had been working two years at an Islamic school, Broods High School, and that a letter had been provided from the school in support. The refusal noted that telephone calls were made to the school on several occasions but there was no response. It was also noted that the applicants’ agent (the same agent as currently represents the review applicant) was requested to provide details about the visa applicant’s employment, but did not do so in the time requested. It was then noted that the overseas post had failed to find any information about the above named institution; the Department was not satisfied that the visa applicant’s work details were genuine. The Tribunal inserted into a Google search engine the words “Broods High school in Pakistan” and on the first page of the search results[2] there were 10 results, showing that the High School was in Rawalpindi (where the visa applicant lives). The visa applicant confirmed to the Tribunal that she had worked at Broods High school (in about 2008) and she gave an address which matched one of the addresses for the school from the Google search. It thus appears from the evidence and the google search that the school she claims to have worked at does exist.

    [2] See Tribunal file for print out: The Tribunal only considered the first page of the search results.

27. On the evidence before it the Tribunal does not consider the previous history of having made unsuccessful visitor visa applications to indicate that the visa applicant does not intend a genuine stay in Australia.

28. A further reason why the delegate refused the application, as discussed above, related to information ascertained by the Department in relation to some nationals of Pakistan who do not comply with the terms of their visitor visa, and others who remain in Australia and claim protection. The Tribunal explained to the review applicant that the delegate’s decision record, which the review applicant had provided to the Tribunal with the application for review, noted that the delegate had regard to information in relation to Pakistani applicants who do not comply with their visitor visa conditions and others who seek to engage Australia’s protection obligations. The Tribunal informed the review applicant that the Departmental file contained a report which is subject to a s375A certificate. The Tribunal had considered the report, and noted that the delegate had disclosed in the decision record that part of the report which was relevant to the issue to be determined by the Tribunal. The Tribunal said that there were other parts of the report that were not relevant, to which it would not have regard.

29. The Tribunal noted that the delegate in the decision record referred to this information generally; the delegate did not specifically state that this was relevant to the circumstances of the visa applicant (or her relatives). However, the Tribunal questioned the review applicant and his wife about the immigration history of their relatives, and considered that they were honest about the less than satisfactory immigration history of the review applicant and some of his relatives, which the Tribunal discussed in detail with the review applicant.

30. In this regard, the Tribunal was concerned that the visa applicant had relatives who, in the past, overstayed visitor visas in Australia. This includes:

    ·     The review applicant himself, who told the Tribunal that he arrived in Australia on a visitor visa in 1984, he overstayed, and then married his current wife who is originally from India, but who is an Australian citizen (they have been married for over 25 years).

    ·     The brother Amjad Ali who also came here as a visitor; he then overstayed. He was granted permanent residence as part of an amnesty procedure in about 1973. He later became an Australian citizen. He returned to Pakistan in about 1990, where he lived for a further 10 years. In that time, he married a second wife, and in about 2000, he brought his wife and children to Australia, where he continues to live today.

    ·     The brother Yousaf Ali. He arrived in Australia on a visitor visa in 1989, at about the time of the review applicant’s wedding. He overstayed until he was arrested and deported in about 1994/1995. He thereafter married a British woman and was granted permanent residence in the UK. He is now based in Britain and is a British citizen. He returned to Australia, in about 2011/2012, as a visitor, once he was a British citizen, and he did not overstay.

31. The Tribunal put to the review applicant its concern that if he had overstayed, as had two of his other brothers, the visa applicant may also overstay if she is granted a visitor visa. In response, the review applicant noted that he had other relatives who had come on visitor visas and had complied with their visitor visas, including:

    ·     As noted above, the brother Yousaf Ali had returned to Australia as a visitor in about 2011/2012 and he did not overstay.

    ·     In 1989, the review applicant’s parents travelled to Australia for the review applicant’s wedding, and they returned to Pakistan. Thereafter, his parents travelled again to Australia as visitors, separately on two to three occasions, and they complied with the visa conditions.

    ·     The brother Imtiaz Ali and his wife travelled to Australia as visitors in about 1992 and they did not overstay.

    ·     The brother Asif Ali came with his wife and daughter in about 2014 to visit their son who is a student in Australia. They went back within the 3 month period of their visa.

32. In addition, the Tribunal notes that the review applicant’s wife, who also gave a verbal guarantee that her sister-in-law would return to Pakistan, said that she had family members who visited Australia, and she would like for that to continue to happen. She said that her brother has visited three times, her parents have visited twice, and her sister visited once. On each occasion, they have complied with the conditions of the visa and return to India in time

1. When the Tribunal asked why the review applicant and two of the brothers, as younger men, had overstayed their visitor visas many years ago, the review applicant said it was because of the lack of work situation in Pakistan at that time. The Tribunal is prepared to accept there are different circumstances applicable for the 52-year-old visa applicant.

2. The review applicant, his wife and the visa applicant all confirmed that the visa applicant has not experienced any difficulties or problems in Pakistan, for example on the basis of her religion, or because she is a woman, or for any other reason. In this regard, the Tribunal has had regard to the DFAT report on country conditions on Pakistan. The review applicant and his wife said that they would be aware if she had suffered problems, and she has not. The Tribunal is prepared to accept the assertion that the visa applicant is not concerned about or affected by security conditions in Pakistan. The Tribunal is prepared to accept these assertions from the review applicant, his wife and the visa applicant, and considers that if these assertions (and if their assertions that she will return in compliance with the conditions of her visa, and not apply for any other visa) were not correct, this would adversely affect their credibility in any future application they were involved in.

3. Both the review applicant and his wife acknowledge that if the review applicant’s sister overstayed, this would adversely affect applications from their relatives to visit them in Australia in the future.

4. The Tribunal also gave the review applicant (and his wife) to opportunity to comment on the information relied upon by the delegate concerning nationals from Pakistan. The review applicant said that he and his brothers had made mistakes in the past, and since he has been in Australia he has done the right thing and obey the laws, as has his wife. He said that he and his wife would give their word, as well as a financial guarantee, that his sister would not overstay the visa, and they just wanted to reward the sister and give her a holiday for having looked after everyone all of her life.

5. As referred to above, the applicants also relied upon the fact that the visa applicant had made a previous visit to the United Kingdom, to visit the other brother (Yousaf) in 2012, and that she had spent four months in the United Kingdom, returning before the expiry of her six-month visa. The same reason was given for that trip, namely to reward the sister for having looked after everyone in her life, and it was noted that she returned home to Pakistan after that trip, despite also having family in the UK. The Tribunal gives this travel to the United Kingdom[3] significant weight as evidence that the visa applicant has had an opportunity to remain out of Pakistan in a country where she has relatives, but that she has not done so. In the circumstances, the Tribunal is prepared to accept the assertions that the visa applicant will comply with the terms of a short visitor visa (two months) to Australia.

   [3] As evidenced by the passport and visa provided.

6. The Tribunal also notes that the review applicant offered to lodge a security bond as an incentive, and to confirm that the visa applicant would return to Pakistan within the terms of any visitor visa. The review applicant’s wife agreed with this. The Tribunal indicated that the Department could impose a security bond in any amount determined by them. The review applicant suggested a security bond in the sum of about $10,000 or $20,000. The Tribunal considers that the review applicant and his wife have access to funds and that they can provide financial security to ensure that the visa applicant comply with the conditions of the visa, and that, depending on the amount of the bond which may be imposed, this would be a strong incentive for the visa applicant to comply with the visa conditions.

7. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intend 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

8. The Tribunal remits the application for Visitor (Class FA) visas 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.

   Christine Cody
   Member