1602483 (Migration)

[2016] AATA 4072

1602483 (Migration) [2016] AATA 4072 (4 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MUHAMMAD ALI FAYYAZ

VISA APPLICANTS:  Mr FAYYAZ AHMED
Mrs PARVEEN AKHTAR

CASE NUMBER:  1602483

DIBP REFERENCE(S):  BCC2015/3013820

MEMBER:Antonio Dronjic

DATE:4 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 04 July 2016 at 10:50am

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 21 December 2015 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 14 October 2015. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant lodged the applications for review with the Migration Review Tribunal on 24 July 2015.

6. The review applicant appeared before the Tribunal on 31 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicants seek the visas for the purposes of visiting their sons and their families. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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 review applicant provided evidence, which is consistent with the departmental movement records that his mother, Mrs Parveen Akhtar, travelled to Australia on 24 October 2014 as a holder of a visitors’ visa that was valid until 24 January 2015. She departed Australia on 26 November 2014, well within the visa validity period. There is no evidence before the tribunal that she did not comply with the visa conditions.

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 (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.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has discussed the matters relevant to cl.600.211(b) and (c) below. The Tribunal made the following findings on the oral evidence and the documentary evidence available.

13. The visa applicants are married couple from Pakistan. They have five children. Four of them reside in Australia. Three of them are Australian permanent residents and one (Hussain) is a holder of a bridging visa “C”. Their only daughter lives in India and is undertaking studies at Lahore. They have been married for more than 35 years. They own real estate in Pakistan. The review applicant’s father is receiving a Government pension and is operating a small citrus farm in Pakistan. The applicants provided documentary evidence of their savings, farm and property ownership in Pakistan. The review applicant’s father did not travel to Australia previously. His previous applications for visitors’ visa were refused by the department on three occasions. In 2014 he travelled to Saudi Arabia.

14. The review applicant is the visa applicants’ son. He came to Australia in 2003. He is married and has two children. Together with his brothers he owns and operates a bakery at Camberwell. He travelled to Pakistan in 2014 with his children and is keeping regular contact with his parents. His daughter was born in April 2016 and his parents did not see her in person.

15. The review applicant stated that the visa applicants will comply with the visa conditions if allowed to travel to Australia on a visitor visa and because of their very established lives would return to Pakistan at the end of the proposed visit. 

16. Based on the evidence before me, I am satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. I considered the fact that they have substantial property ownership and family ties to Pakistan. In addition to operating a citrus farm, the review applicant’s father is receiving a government pension. I give significant weight to the finding that the review applicant’s mother previously travelled to Australia and returned to Pakistan within the visa validity period.

17. I am satisfied on the evidence before me that that the applicants will abide by the conditions of the visas and will not seek to work or study whilst in Australia or overstay the permitted period of the stay in Australia. On balance, I am satisfied that the visa applicants 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

18. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member