1607975 (Migration)

[2016] AATA 4194

1607975 (Migration) [2016] AATA 4194 (29 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lina Tareen

VISA APPLICANT:  Ms Sadaf Tareen

CASE NUMBER:  1607975

DIBP REFERENCE(S):  BCC2016/1491018

MEMBER:Mary-Ann Cooper

DATE:29 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2016 at 10:35am

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 27 May 2016 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 19 April 2016. 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.

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 was not satisfied that the applicant genuinely intended a temporary stay.

5. The review applicant appeared before the Tribunal on 26 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

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

   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 applicant seeks the visa for the purposes of visiting her sister. 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)). There is no evidence that the visa applicant has previously travelled to Australia and thus there is no evidence of non-compliance with previously held visas to Australia.

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. As indicated by her visa application, the visa applicant is an Afghani citizen, born in 1984 and who currently resides, and is a student, in Kabul. There is no information before the Tribunal suggesting that the visa applicant would engage in any work, study or training in Australia for more than three months. Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. In the circumstance of this matter, the Tribunal has carefully considered whether the visa applicant intends to comply with condition 8531. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

13. As recorded in the delegate’s decision, a copy of which was provided with the review application, the visa applicant’s family remain in Afghanistan and the delegate was satisfied that their presence provided limited incentive for her return, as did her ongoing study. Conversely, the delegate considered that her lack of previous travel, in combination with DFAT information indicating that Afghanistan is experiencing civil disruption, indicated she had more incentive to remain than return to Afghanistan in compliance with her visa conditions. On that basis the delegate was not satisfied that she had a genuine intention to visit Australia temporarily and the visa was refused.

14. Prior to the hearing the applicant’s representative provided a submission in which he outlined the review applicant’s circumstances and her need for her sister’s assistance with her new baby. Specifically, it was noted that the review applicant was then expecting a fourth child, had various medical problems and was in ‘desperate need’ of the assistance of her sister, the visa applicant, who is currently studying midwifery in Afghanistan. It was further noted that the review applicant’s husband was working fulltime but had taken casual employment in order to help her. It was claimed that they could fully support the visa applicant for the period of her 12-month stay. The tribunal notes that the correspondence from the review applicant’s treating practitioners state that it would be “helpful” for her to have the assistance of her sister and “she would greatly appreciate” the support of her sister. It does not indicate that she suffers from any particularly serious medical condition or that she has a compelling need for assistance.

15. Further documents were received which indicated that the applicant was having some medical problems following the delivery of her child. In addition documents were provided which purported to indicate that the visa applicant had permission to take leave from her studies for one year.

16. At the hearing the review applicant told the tribunal that she had come to Australia in 2002 on a prospective spouse visa. As confirmed by Departmental records, she was granted permanent residence and became an Australia citizen in 2011. She said she and her husband and four children live in a 3 bedroom house which they own. She told the tribunal she has six siblings and her father who remain in Afghanistan. She claimed she had no family in Australia and her husband only had an aunty in Sydney. She told the Tribunal that she last saw her family six years ago in Pakistan. The tribunal inquired why she had not seen them in Afghanistan. She said she did not want to go to Afghanistan because it was too cold. She said the visa applicant is the only sibling who is not married and that is why she can come to Australia to help her with her children. She said she is currently part way through a midwifery course in Afghanistan and had no employment. When asked how she was financially supported, the review applicant said she relied on her brother. She said the visa applicant, her father and brother and his wife live together in Kabul. The tribunal asked how long her sister wished to stay in Australia and she responded three to six months. The tribunal observed that the application was for 12 months’ stay. She did not answer directly, responding that she would like her children to grow up a bit and that she would like to return to study. She said the visa applicant would live with them and that her husband was happy to support her financially. The tribunal asked her what incentives that applicant had to return to Afghanistan. She responded that she would return because of her father and that it was important to her to finish her studies.

17. The tribunal observed that the review applicant had not signed either the security bond and sponsorship limitation clause or the declaration in her sponsorship application form on the Department’s file. Her agent told the tribunal he was sure that she had done so and that these were on another form she had completed. In this context the tribunal asked if she was prepared to pay a security bond as security for her sister’s compliance with her visa conditions. She said she did not have enough money to do so but could put up her house as security.

18. The tribunal put to the applicant the various factors that it considered might induce her sister to remain in Australia, that is, the dangerous security situation in Afghanistan, particularly the increasing frequency of attacks in Kabul,[1] and the possibility that she may wish to remain in Australia to study and gain experience in midwifery. The review applicant denied this, claiming that study is too expensive in Australia and that her sister only has 4 months of her course to finish in Afghanistan and wanted to return and work there. She acknowledged the situation in Afghanistan, stating that it had been going on for a long time and people lived with it as normal. She denied that the visa applicant or her family were the subject of any adverse attention in Afghanistan or that the visa applicant any feared harm by reason of her ethnicity, politics or religion.

    [1] Afghanistan:  accessed  25 July 20156.

19. The tribunal then spoke to the review applicant’s husband. He said he came to Australia in 2004 and married the review applicant in 2010. He said his family remained in Pakistan but he had an aunty in Sydney. Inconsistently with the evidence of the review applicant, he said he had last seen the review applicant’s family in 2012 in Afghanistan. He claimed that the visa applicant lived in Afghanistan with her father and her brother who, he said, again inconsistently with the review applicant’s oral evidence, is single. He confirmed that he worked fulltime and would support the visa applicant financially if she came to Australia.  He said he thought it would be for a 3-4 month visit.  He maintained that the visa applicant was only coming to Australia to help his wife. He said he works fulltime and cannot provide the help she needs.

20. The tribunal then spoke to the visa applicant. She said she has 5 sisters in Afghanistan and currently lives with her father, her brother and his wife in Kabul. She confirmed that she is not employed but is supported financially by her brother. She said she is studying midwifery at the University of Mohammad Azfal Asas. The tribunal observed that it could not find the University in its internet searches and asked if it was known by another name. The applicant said it did not have another name. She claimed she had completed 1.5 years of her midwifery course and had 4 months remaining. Again inconsistently with the review applicant’s evidence, she said she last saw her sister in Afghanistan in 2011. She said the purpose of her trip to Australia was to help her sister who has a lot of stress with her four children and who was now unable to travel to see her family in Afghanistan. She maintained that she did not have any intention to stay in Australia however when asked how long she wished to remain in Australia, she did not specify, only responding that she would stay as long as the government allowed. The tribunal noted her claim that she only had 4 months to complete her studies. She said she can continue them at any time and referred to the documents provided which purported to indicate that she had been given a deferment for one year. She denied that she had any plans to study in Australia and said she would live with, and be supported by, her sister.

21. The tribunal put to her the same factors as it had put to the review applicant concerning the dangerous security situation in  Afghanistan. She responded that all Afghanis experience these conditions and maintained that she has no intention to stay in Australia and will return to her study. She denied that she had been the subject of any adverse attention from the authorities or other groups and said she did not fear harm from anyone for any reasons. She said in Afghanistan girls can freely go to work and study. She said she had to return because of her father and her studies. The tribunal observed that her other siblings could care for her father. She responded that they were married and had their own families.

22. In conclusion the applicant’s representative submitted that it was the visa applicant’s dream to complete her studies and this was the reason she had not yet married. He explained that the situation in Afghanistan is faced by the entire population, and if the visa applicant had been under any threat she would have gone to a third country and her sister could have sponsored her. He maintained her intentions are genuine and she will return home to finish her study and marry.

23. The tribunal has carefully considered the claims that the visa applicant would depart Australia at the end of her visa, if granted. The tribunal accepts that the visa applicant has family and study in Afghanistan and that this would provide her with some incentive to depart Australia. Weighing against this, is the objective factor of the dangerous and escalating situation in Afghanistan, particularly in Kabul where she resides. The tribunal also considers that the presence of the visa applicant’s sister and nieces and nephews in Australia provides a strong incentive for her to remain. Further, on the basis of the inconsistencies in the applicants’ evidence regarding the brother’s marital status, and the timing and location of when they had last seen each other, the tribunal found the oral evidence overall to be unconvincing and lacking credibility. In addition, on the basis of the visa applicant’s vague responses to the tribunal’s questions regarding the length of time she wished to stay in Australia, the tribunal has strong reservations that she genuinely intends only a temporary visit.

24. Having carefully weighed those circumstances suggesting that the visa applicant would comply with the relevant visa conditions and visit Australia only temporarily against those circumstances suggesting that she would seek to remain in Australia beyond the permitted period, and in light of its findings regarding the credibility of the oral evidence, the Tribunal is not satisfied that the visa applicant intends to comply with visa condition 8531 – that she must not remain in Australia after the end of any permitted stay (cl.600.211(b) and cl.600.612).

25. Having regard to the applicants current personal and economic circumstances, individually and cumulatively, and all other relevant matters (cl.600.211(c), the tribunal is not satisfied that the visa applicant would depart Australia by the end of her permitted stay if granted a visitor visa.

26. Therefore cl.600.211 is not met.

    CONCLUSION

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.

    Mary-Ann Cooper
    Member