1816899 (Migration)

[2020] AATA 5178

1816899 (Migration) [2020] AATA 5178 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816899

MEMBER:Mara Moustafine

DATE:28 August 2020

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 28 August 2020 at 4:02pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – general political, economic and security conditions – son and daughter-in-law in Australia – husband with medical condition and other family, social ties and family business in home country – previous compliant travel to other countries – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231; Schedule 8, Condition 8531

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 17 May 2018 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 26 April 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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.

   Evidence before the Department

4. Based on her visa application, the visa applicant is a [Age]-year-old Pakistani citizen, born in Quetta, Baluchistan province and is now living in [Karachi].. She sought the visa for the purpose of visiting her son, the review applicant, and his wife in Sydney for three months to celebrate the Ramadan and Eid Festivals in 2018. Her husband, [daughters] and their families would remain in Pakistan. She had not worked since birth. She stated that she had enough funds for her trip to Australia and that her son would support her financially and provide her with accommodation. The visa applicant has not visited Australia before and that two applications for a Subclass 600 Visitor visa had been refused in January and February 2018.

5. According to his application form, the review applicant was born on [Date] in Quetta, Pakistan. He held Pakistani citizenship and was a permanent resident in Australia. He has been employed as [an Occupation 1] by [Employer] for 8 months. In his statutory declaration he stated that he had the financial means and would provide any necessary assistance to ensure that his mother had adequate funds for personal support and accommodation during the period of her intended 3 month visit in Australia.

6. Documents submitted to the Department in support of the visa application included a certified copy of the visa applicant’s passport, including pages showing entry and exit stamps for [Country 1], her declaration, marriage certificate, bank account statement, property valuation certificate, sale and purchase receipt in her name, property tax payment receipt, family member registration details, the invitation letter from her son, the review applicant, statutory declarations from him and his wife, their immigration cards and passports, recent payslips and bank account statements.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia. The delegate referred to the visa applicant’s lack of family links outside Australia, as well as the prevailing political, security and economic conditions in Pakistan as factors which might encourage the her to remain in Australia.

   Evidence before the Tribunal

8. On 8 June 2018 the review applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review. He also provided a range of supporting documents.

9. In a submission dated 20 August 2020 provided to the Tribunal ahead of the hearing, the review applicant addressed the issues raised by the Department in their decision and made the following relevant points:

   a.    The visa applicant seeks to visit her son and daughter-in-law in Australia and will return to Pakistan before the expiry of her visa.

   b.    She has only one blood relation in Australia, while her husband, [daughters] and [grandchildren] remain in Pakistan.

   c.     The visa applicant has a strong combination of incentives to return to Pakistan: her family ties, friends, social circle, bank balance, property and the family business. In Australia she cannot socialise with people because of the language barrier and her sponsor won’t be able to give her extra time and company as he would be working full time.

   d.    She does not have any political, security or economic issues or any other difficulties living in Pakistan, where she has a decent social life and her entire family except her son and daughter in law.  She is especially close to her grandchildren in Pakistan and has none in Australia.  

   e.    Her financial status is strong. She did not have need to work for financial purposes, but is now committed to supporting her husband in the family business due to his medical condition, as noted in her husband’s Medical Report and the written statements of her husband ([Mr A]) and the accountant ([Mr B]).

   f.   Her bank balance plus its ongoing monthly benefits and the family business are enough financial incentives for her to return to Pakistan.

   g.    She is the main pillar of the family, helping her husband in his business, looking after home matters and support for her grand-daughter and daughter, who live in the adjacent apartment.

   h.    As well as visiting [Country 1] and departing within the valid time of her visa, the visa applicant visited [Country 2] in 1984, where she had family ties at that time as her late sister used to live in [City]. Had she intended to move from Pakistan permanently, she could have stayed there when she was young but did not do so.

10. The review applicant provided updated documents in support of the application, including copies of affidavits by the visa applicant regarding her proposed visit to Australia and intention to abide by the conditions of her Visitor visa; statutory declarations of the review applicant and his wife; written statements from her husband, [Mr A], confirming that since his illness his wife assisted him in the [business], as well as her duties as a grandmother; a written statement from the company accountant, [Mr B], confirming that the confirming that the visa applicant assisted in the business; her husband’s medical report noting that he was taking medication for [medical conditions]; property documents relating to the purchase by the visa applicant of an apartment valued at 4.5 million PKR, where she and her husband are living and its gifting to her son, the review applicant, in whose name it is registered; the visa applicant’s Personal Bank Account Statement of ( 1.00 Million PKR ), Personal Bank Account Maintenance Certificate, National Saving Certificate’s Maintenance Letter (1.2 Million PKR), National Tax Number (NTN) Record, Tax Returns 2018 to 2019; Business Bank Account Statement, Business NTN Record, Business Tax Returns 2017 to 2018, 2018 to 2019; photocopy of the visa applicant’s passport pages showing entry and exit stamp for [Country 1]; family photographs of the visa applicant, including with sister in [City] and husband, daughter and grandchildren in Pakistan. 

    The hearing

11. The review applicant appeared before the Tribunal on 27 August 2020 to give evidence and present arguments. The review applicant nominated his wife and the accountant from his father’s family business as witnesses. However, as they had both provided written statements, with the review applicant’s agreement, the Tribunal decided not to take oral evidence from them. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

12. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

13. The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments to the Tribunal, in support of the review.

14. Relevant points from the review applicant’s evidence at hearing were:

    a.In a discussion of his migration history he advised that he and his wife arrived in Australia on student visas but were granted Protection visas because of threats to their life in Quetta, Pakistan at that time over their intersect marriage. He is a Sunni Muslim while his wife is a Shia and Hazara. He was granted permanent residence in 2016 and Australian citizenship in 2019.

    b.He has no family in Australia. His wife’s parents are deceased, her brother lives in [Country 2] and she has cousins in Melbourne.

    c.When his mother first applied to visit Australia, she had not seen the review applicant and his wife since 2013. The applicant saw his mother when he visited Pakistan in January 2020, although his wife did not go as she was in [Country 2]. His mother now wishes to visit Australia to see how they are living in Australia and to spend time with them. She would like to visit for about a month and a half. She has no intention of working or studying in Australia.

    d.She will pay for her airfare to Australia, but the review applicant will provide her with accommodation and cover her living expenses in Australia.  

    e.The applicant no longer lives at his previous address in [Suburb 1] as he purchased a new 4-bedroom property in [Suburb 2] which should be completed and ready for him to move to in October 2020. Meanwhile he and his wife are staying with friends in [Suburb 3] (contacts provided after hearing). He would like his mother to come after he moves into his new house.

    f.He has been employed full-time as [an Occupation 1] with [Employer] for 3 years with a base salary of $900 per week but up to $1450 per week with commissions. His wife is no longer working as they are hoping to start a family. He does not have much savings since purchasing the new house and pays $3000 per month on a mortgage of around $700,000 for 30 years.

    g.Both his parents have been living in Karachi since 2017. His mother moved there from Quetta after he left for Australia to be close to her daughters. His father has been engaged in [work sector] all his life. His mother has been [an Occupation 2], [doing a job task]. Since 2018 when his father suffered medical issues, his mother, who completed 10^th grade schooling, has been assisting him in his office. Her health is good, and she is very active.

    h.His mother has no political, economic or security problems in Pakistan that would motivate her to stay in Australia and not return to Pakistan. There are no parallels with the threats he and his wife faced as his mother is Sunni and Pashtun. Nor will his mother seek to prolong her stay in Australia beyond the term of her visa for any reason.

    i.He takes seriously his responsibility, as made clear in his declaration, to ensure that his mother will leave Australia before the expiry of her visa.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In the present case, the visa applicant is seeking the visa for the purposes of visiting her son and daughter-in-law, who are now both Australian citizens, to spend time with them and to see how they are living. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

17. 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)).

18. The visa applicant has not travelled previously to Australia, so the question of previous compliance is not relevant.

19. 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.

20. The Tribunal has considered the written and oral evidence of the review applicant, the written evidence the visa applicant as well as all the documentary evidence submitted in support of the application.

21. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant and his wife while in Australia. The Tribunal accepts that the visa applicant has enough funds for her trip to Australia. The review applicant affirmed that the visa applicant does not intend to work or to study while in Australia.  In these circumstances the Tribunal is satisfied she intends to comply with condition 8101 and Condition 8201.

22. Condition 8503 refers to entitlement and is not a condition that involves compliance.

23. In the context of the visa applicant’s intention to comply with condition 8531, the review applicant has submitted that his mother’s recent travel to [Country 1] and return home within the validity of her visa and the fact that she did not remain in [Country 2] when she visited her sister in [City] in 1984 is evidence that she will not remain in Australia after the end of her permitted stay. However, the Tribunal gives this evidence limited weight as the visa applicant does not have the ties to [Country 1] that she has to Australia, namely the presence of her son and daughter-in-law. Furthermore, in the absence of the visa applicant’s migration records relating to her visit to [Country 2], the Tribunal is not in a position to know whether she complied with her visa conditions. 

24. Nevertheless, the Tribunal accepts that, except for her son and daughter-in-law, the visa applicant’s family, including her husband who requires her help, daughters and [grandchildren] all live in Pakistan. The Tribunal accepts that these family ties, as well as her obligations to the family business and social networks provide strong incentive for her to return to Pakistan at the end of her visit. Having considered all the evidence before it, the Tribunal is satisfied that the visa applicant intends to comply with condition 8531 and will not remain in Australia after the end of her permitted stay.

25. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal accepts that the visa applicant does not face political, security or economic problems in Pakistan that might encourage her to remain in Australia.   

26. 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

27. 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.

    Mara Moustafine
    Member