1817745 (Migration)

[2021] AATA 1599

1817745 (Migration) [2021] AATA 1599 (26 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817745

MEMBER:Rosa Gagliardi

DATE:26 March 2021

PLACE OF DECISION:  Australian Capital Territory

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 March 2021 at 4:55pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – applicant to provide support and post-surgical care – property and farming business in Pakistan – decision under review remitted    

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 Home Affairs on 10 April 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 7 March 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 Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

5. The review applicant/sponsor (father of the applicant) appeared before the Tribunal on 26 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, [named], as well as from the applicant’s brother, [named] who has also applied for a Visitor visa and whose case has been reviewed by the Tribunal as constituted (Decision: 1904635).  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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 applicant seeks the visa for the purposes of visiting his elderly father in Australia.  This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

   cl.600.211(a)

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)).

11. The applicant has travelled to [specified countries] according to the evidence submitted at hearing.  The Tribunal has not sighted any evidence that this is the case but has no reason to disbelieve it.  While the Tribunal places some weight on the applicant’s travel history, the Tribunal notes that it has not included countries such as Australia, which can be set apart due to its generous welfare system and social stability.  Furthermore, the applicant father resides in Australia, and as such, the countries visited by the applicant would not hold much appeal to the applicant if he did not have family members residing there.

    cl.600.211(b)

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:

    ·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.

13. The applicant has stated that he wishes to see his elderly father who settled in Australia some 30 years ago.  At hearing it emerged that the sponsor, the applicant’s father, had applied for protection in Australia, failed and then applied for a Partner visa to gain permanent residency.  It is claimed that the sponsor continues to reside with his second wife, who is not the mother of the applicant. 

14. It appears that the sponsor is having [surgery] and the applicant wishes to be present to provide support and post-surgical care.  It has also been argued that the applicant and his brother, [named], want to visit their father as they have been estranged from him for some time, possibly because he chose to remain in Australia rather than return to their mother who lives with both the applicant and family and the family of his brother, [named]. 

15. The Tribunal has concerns that the sponsor might in fact have two wives; one in Pakistan and the other in Australia, and that he entered into the marriage in Australia for the sole purpose of gaining a migration outcome.  The Tribunal notes that the sponsor returns to Pakistan and stays with his sons and purported ex-wife when he returns to Pakistan, for example.  This would, however, be mere speculation on the part of the Tribunal and has no bearing on whether the applicant genuinely intends to stay in Australia for the purpose for which the visa is granted.  Nonetheless, if the sponsor has been prepared to flout Australia’s immigration rules, then it could call into question the intention of the applicant.

16. Evidence has been submitted that the applicant lives in Sialkot, Punjab and has title to his residence there.  He also manages land holdings in the name of the sponsor, from which he derives an income.  The sponsor had inherited these lands from his father, [named], who was a general in the British army and was granted land under a Shahi Muzara scheme.  It is argued that the lands are profitable, and that the applicant hires several people to assist him.  The applicant and his [brother] have applied for the sponsor’s lands to be put in their names once the sponsor passes away.

17. The applicant is married with [a child].  He is [age] years of age and while he is not beyond working age, the Tribunal accepts the evidence at hearing that it would be difficult for the applicant to resettle in another country and start again. 

18. The Tribunal has been persuaded in this case that the applicant wishes to return to his young family and his agribusiness on return from his visit to Australia, as he has invested 15 years in the land holdings growing wheat, rice, cotton, and mustard.  The applicant is also involved in animal husbandry and claimed at hearing that he eventually wanted to import Australian cattle as he also runs a small dairy farm.  Evidence has been submitted of his rice growing activities.

19. The Tribunal accepts that the applicant has a strong connection to his ancestral lands in Pakistan and that these, together with his young family, represent a strong incentive for him to return to Pakistan on expiry of his visa. 

20. The Tribunal put to the applicant that the security situation in Pakistan was not stable, however, he argued that in Sialkot, Punjab they lived a relatively life, and besides which, the security situation in Pakistan overall, had now had improved.  When their father came to Australia thirty years ago the situation in the country was markedly different. 

21. The Tribunal’s current country research into Sialkot reveals:

    Sialkot is an important economic and industrial hub and export-oriented city of the country from where 99 per cent products are exported to various parts of the world.

    Through exports, Sialkot-based small and medium industries are earning foreign exchange amounting to more than $2.5 billion annually to strengthen the national exchequer. The Sialkot exporters are the ‘Roaming Ambassadors’ of Pakistan, who are not only bringing foreign exchange for the country but also introduce Pakistan through their products.

    Currently, more than 8,000 firms are registered with Sialkot Chamber of Commerce and Industry (SCCI). Moreover, Sialkot is an industrial hub of Pakistan where per capita income is higher in comparison to other cities of the country.

    The innovative business leaders of Sialkot believe in inclusion and diversity, they believe that a visionary business is a good business. Sialkot has made its mark in the industrialized world, they say. Thousands of small and medium sized industries are functioning in and around Sialkot and is globally known for its quality products, unique export culture and for manufacturing value-added goods like leather products, sports goods, surgical instruments, gloves of all sorts, textile items, sports wear, martial arts uniforms and accessories, musical instruments, kitchen ware, hollow ware, knives, cutlery items and military uniform badges, etc.

    Moreover, Sialkot manufacture footballs, field hockey sticks, cricket gear and boxing gloves that are used in international games including the Olympics and World Cups. It is pertinent to mention here that the surgical and sports goods industries are the oldest industries which are playing a tremendous role not only in strengthening the national economy but also in providing employment opportunities to hundreds of industrial workers.

    Surgical industry of Pakistan globally was enjoying the monopolistic position because no other country can produce low-priced but instruments of quality material. The Pakistani surgical instruments are the most economical in the world coupled with unconditional guarantee of finest quality besides world-renewed companies of surgical are entering into joint ventures with Pakistani companies.

    Most of the developed countries buy surgical instruments from Sialkot. In the present scenario, there is a great need of a separate business strategy for Sialkot keeping in view its unique export culture and craftsmanship enabling it to play a significant role in earning maximum foreign exchange for the country.

    The business acumen of the local exporters has not only excelled in foreign trade but they pay special attention to fulfilling their social responsibility. Exceptional achievements in business, the corporate sector is fully vigilant to its responsibilities towards the social sector and has played a significant role in this regard on ‘Self-help Basis’ which has become now the culture of Sialkot.

    Sialkot exporters have set unique examples of self help by completing several mega projects and establishing Sialkot International Airport on self help basis. Besides, leather and its products have also received appreciation in the world market.

    The leather garments, leather gloves and textile sportswear manufactured in Sialkot are competing with other countries in quality and price.[1]

    [1] Sialkot vital economic, industrial hub of country (thenews.com.pk), accessed on 26 March 2021.

22. The Tribunal accepts, therefore, that the economic and political circumstances in Sialkot are not such as to compel the applicant to seek a migration outcome.

    cl.600.211(c)

23. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  The Tribunal accepts that it is not likely that the applicant would succeed in any protection visa application.  Nonetheless, the Tribunal initially had some concerns about the applicant applying for a Carer visa for his father, the sponsor.  In mitigation, however, is the fact that the sponsor has a spouse who can care for him long-term and he would be able to access the National Disability Insurance Scheme if he requires it.

24. 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.

25. 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

26. 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.

    Rosa Gagliardi
    Member