1828657 (Migration)

[2020] AATA 5740

1828657 (Migration) [2020] AATA 5740 (2 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828657

MEMBER:Rosa Gagliardi

DATE:2 October 2020

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 02 October 2020 at 10:05am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visitor) – genuine temporary entrant –security situation in applicant’s home city – no adverse profile – compliant during recent visit – 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 Immigration on 29 August 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 15 July 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 (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. The review applicant (the sponsor) appeared before the Tribunal by telephone on 4 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, [and] from his [wife]. 

5. The circumstances between the applicant and his wife (separate Decision: [number]) relate equally to both and the Tribunal has taken into account the same factual matters in both cases. 

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting their son (the sponsor) and family This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    The hearing

11. At hearing the Tribunal raised with the sponsor the circumstances in which he came to be granted permanent residency and he advised that he was granted protection at a time when terrorism was at its height in Pakistan.  His parents’ circumstances were completely different, however.  The sponsor had worked for an NGO that had attracted the attention of persons disapproving of his work.  His father and mother, however, did not have any such profile.  His parents lived a comfortable life and had servants.  According to the sponsor, the situation as concerns terrorism in Pakistan has improved.  Initially the sponsor came to Australia in 2007 as a Student and undertook a [degree].  He returned to Pakistan in 2009 to become engaged. 

12. The sponsor explained that his parents were Sunni Muslims and lived in Peshawar. 

13. The sponsor stated that he was perplexed as to why his parents had been refused the visa when they had been permitted to travel to Australia on a Visitor visa in 2017, after the grant of his protection visa. 

14. In terms of the sponsor’s family make up, he has a brother who lives in [Country 1].  His brother had studied there and was ultimately sponsored to remain in the country.  His two sisters live close by their parents in Peshawar.

15. The sponsor emphasised that his family was financially comfortable and had no reason to leave Pakistan.  His father had worked [for] a government [agency], and had worked in this occupation for 14/15 years in a senior post.  While his father had been retired for some time, he continued to buy and sell land.  This complemented the various sources of rental income generated through investments and agricultural lands.  His father could not be away in Australia for long as he needed to be in Pakistan to manage his investments.  His father’s brothers could look after things to some extent while the applicant was in Australia.

16. The sponsor stated that his parents were not at the stage in life where they required full-time care as yet as the Tribunal had queried whether they may be coming to Australia to live out their old age here.  The sponsor stated that his mother is [age] years of age and was not elderly.  His father was [age] but they both enjoyed good health and as yet the family had not discussed their long-term care.  His sisters and their families lived close by so they were not on their own in any event.

17. It was also argued that the ties to their culture were significant and it would not be easy for them to go outside their comfort zone and live in a different society, such as Australia, away from other family members.

18. When the Tribunal spoke to the applicant it raised whether he and his wife might be coming to Australia to, in their old age, take advantage of the heath system.  The applicant stated they had no intention to stay in Australia – they simply wanted to see their son’s family.  They were Pashtuns and they wanted to live in their land and to be buried there.  He had siblings in Pakistan as well as his daughters and son in [Country 1], and he was part of a community in his home country.  The applicant stated that he was eldest in his family and had responsibility towards his extended family. 

19. The applicant emphasised that he had no need to be looked after in Australia as his two married daughters and their children took good care of him and his wife.  The applicant explained that he had lived in [Country 2] between 1969 and 1973 as he had studied [there].  During that time, he had also travelled to [Country 3] on several occasions.  In addition, he had travelled to [two other countries].  While he had spent time outside Pakistan, he had always returned to his home country.

20. The applicant’s wife stated that as a housewife she would live in Pakistan with her husband into their old age.

    cl.600.211(a)

21. 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)).

22. The Tribunal has had regard to the applicant’s passport which demonstrates he has travelled within his region but has also travelled to [Country 2] in his youth.  The Tribunal considers that it is salient that had the applicant wanted to start afresh in a Western country he would have attempted to do so on completing his studies there.  The applicant also has a son in [Country 1] and the Tribunal accepts that if there were any impetus for the couple to move abroad, they could have sought to do so there. 

23. The applicant and his wife have also travelled to Australia and consistent with their passport details, Departmental records demonstrate that they arrived in Australia [in] July 2017 and returned to their home country [in] October 2017.  The Tribunal considers that it would be unreasonable not to place significant weight on the couple’s previous compliant visit to Australia which occurred not that long ago.  As far as the Tribunal can see the applicant and his wife’s circumstances, apart from being 3 years older, have changed little. 

24. In addition, the sponsor gave evidence at hearing that his wife’s parents visited Australia during the birth of their youngest child in [year].  They had a 3-months’ Visitor visa and departed within 2 months.  According to the sponsor, culturally they could not stay any longer.

25. The Departmental decision refusing the visa, concentrated on a statement that the sponsor submitted with the applicant’s previous application.  The sponsor attempted to distinguish his own circumstances that led him to apply for a Protection visa, “I was keen to help the locals so I started working for a local NGO in 2011.  But a couple of unpleasant events during my short stay with that NGO convinced me as well as my parents to leave Pakistan and seek refuge in a secure place.  So I returned to Australia and applied (for) a Protection/Humanitarian visa…”.  The applicant was attempting to demonstrate that he had particular issues in Pakistan that did not apply to his parents but instead gave the impression that the unpleasant events during his time with the NGO convinced both he and his parents to leave Pakistan.  The Tribunal is satisfied that it was not the sponsor’s intention to say that his parents needed to leave Pakistan along with him, only that his parents were also convinced that he, the sponsor, should leave Pakistan.  The sponsor was granted his protection visa in 2012. 

26. If the sponsor’s parents were in danger in 2012, the Tribunal does not consider that they would have waited until now to visit Australia.  Indeed, they had their opportunity to remain in Australia in 2017 but did not do so, which belies any contention that the applicants needed to flee Pakistan together with the sponsor when he did.

27. The Tribunal accepts that the sponsor expressed himself awkwardly in his letter to the Department and that his parents’ conduct in returning to Pakistan in 2017 indicates that they held no fears for their safety or had any intention of departing their home country permanently.

    cl.600.211(b)

28. 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.

29. The Tribunal has no concerns that the applicant at [age] years of age would be coming to Australia to work.  He has provided credible and abundant evidence of his streams of income that enable him to live with his wife in reasonably comfortable circumstances in Pakistan.

30. Similarly, the Tribunal is satisfied that the applicant and his wife are not coming to Australia to maintain an ongoing presence by pursuing studies of any kind, for any duration. 

31. The Tribunal has had regard to the considerable assets owned by the applicant and his wife as set out in the detailed information from veritable sources:

    ·Residential bungalow, Islamabad;

    ·Residential property, Peshawar;

    ·Hujra (Annexed to the House)

    ·Residential Flats at Peshawar; and

    ·Agricultural land

32. Probative evidence has been sighted by the Tribunal to support the claims made about the applicants’ financial circumstances, including their joint savings in an account amounting to 4,505,382.32 Pakistani Rupee (equivalent of roughly AUD 38, 019.00), together with other accounts.

33. The Tribunal concurs with the Departmental findings that such assets can easily be transferred, however, the Tribunal is persuaded by the applicants’ past conduct in visiting Australia and elsewhere, that they are attached to their ancestral lands and do not have any intention of seeking an ongoing presence in Australia.

34. The Tribunal raised at hearing whether the couple might be visiting Australia because of a volatile security situation in Peshawar.  Recent country research (as highlighted by the migration agent in her submission) states:

    Travelers must recognize a contrast when examining the security situation in Khyber Pakhtunkhwa (KP) Province. National and provincial resources are most available in Peshawar and other population centers. For instance, Pakistan’s federal government invested in infrastructure projects linking KP (especially Peshawar) to the rest of Pakistan. Security resources – to include the KP Police and Pakistani military – maintain a heavy presence in and around Peshawar. These investments in physical and security infrastructure translated into an improved security environment in and around Peshawar. Conversely, for example, fighting between Pakistani security forces and militants in areas of North and South Waziristan remains a frequent occurrence. Overall, however, the security environment in KP Province is improving, especially within Peshawar and its surrounding settled areas.[1]

    [1] ‘Pakistan 2020 Crime & Safety Report: Peshawar’, US Department of State, Overseas Security Advisory Council (OSAC), accessed on 1 October 2020.

35. The Tribunal has also assessed whether the applicants might fear harm as a result of their Pashtun background.  Pashtuns are the second largest ethnic group in Pakistan, forming 15% of the population, and are considered one of the five major ethno-linguistic groups of the nation.[2]  The Pashtun population in Pakistan is mainly concentrated in Balochistan, Federally Administered Tribal Areas and the Khyber Pakhtunkhwa area from where the applicants hail. 

    [2]  "What Languages Are Spoken In Pakistan?". World atlas, accessed on 1 October 2020.

36. On the evidence the Tribunal is satisfied that the applicants do not hold a fear that they will be harmed on return to Pakistan for any reason, including their ethnicity. 

    cl.600.211(c)

37. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

38. Ultimately, the Tribunal has relied on the fact that the applicants have visited Australia previously and their credibility, along with that of the sponsor. 

39. The Tribunal also found the applicants credible in their statements that they had not seen the youngest of their grandchildren, born in [year] as yet and that the visit centred largely on meeting their grandchildren.

40. 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

41. 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