1901652 (Migration)

[2019] AATA 5433

1901652 (Migration) [2019] AATA 5433 (18 July 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1901652

MEMBER:  Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 July 2019 at 11:20 am (WA time)

DATE OF WRITTEN RECORD:                5 September 2019

PLACE OF DECISION:  Perth

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 05 September 2019 at 2:16pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – caring for review applicant’s children – intention to comply with visa conditions – security situation in Punjab area – strong family ties in home country – no significant economic ties – review applicant’s sponsorship history – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211; 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.

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [11.20 am]

MEMBER: This is an application for a review of a decision made by a delegate of the Minister for Immigration on 23 January 2019 to refuse to grant the visa applicant a visitor class FA visa under section 65 of the Migration Act. The visa applicant applied for the visa on 30 November 2018. At that time the visa application was lodged class FA contained one subclass; subclass 600 visitor.

In this case the applicant applied for the visa seeking to satisfy the primary criteria in the sponsored family stream. The tribunal has noted that no issues were raised in the initial process as to the validity of the sponsorship. The tribunal accepts that the sponsorship is valid.

The criteria for a subclass 600 visa are set out in part 600 of schedule 2 to the Migration Regulations. Relevantly they include clause 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.

The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 600.211. From having read the decision it appears the reasons were as follows. The applicant had declared the presence of family members that will remain in Pakistan, namely her parents and three siblings. Whilst the delegate acknowledged these family members may offer some inducement to return the delegate was not satisfied their presence sufficiently demonstrated an intention of a genuine temporary stay.

The applicant provided no details in the application or evidence regarding her employment status. In the absence of provision of details or evidence the applicant’s employment status cannot be verified. The delegate could not consider employment as an incentive for her to comply with conditions.

The applicant failed to submit any evidence of other significant ties that would encourage her to return to Pakistan within the validity of the visa. The delegate had concerns that the applicant may not comply with the conditions.

The delegate took the applicant’s personal circumstances and the duration of the intended travel into account but found that the length of stay somewhere around 10 or 11 months is inconsistent with the applicant’s reason for travel. The delegate took into consideration offers of support given by family members and friends in Australia but the onus is on the applicant to demonstrate that they have the means and intention for a genuine temporary stay.

The delegate noted the support provided by the review applicant but decided that the applicant had not provided evidence of sufficient ties to demonstrate a genuine temporary stay in Australia.

Consideration of Claims and Evidence

The issue in this case is whether clause 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 her were subject.

As I said earlier, there has been no travel to Australia. Obviously it follows that there has been no substantive visa or bridging visa for the tribunal to have regard to.

The tribunal must assess whether the applicant intends to comply with conditions to which the subclass 600 visa would be subject. The tribunal has done so. Those conditions are condition 8101 must not work in Australia, 8201 must not engage in study or training for more than three months, 8503 not entitled to a substantive visa other than a protection visa whilst remaining in Australia. The tribunal is satisfied as to that. The evidence is not supportive of the applicant being in any fear or concern for the security situation in her area in Pakistan. 8531 must not remain in Australia after the end of the permitted stay, which is the key issue here.

The tribunal is satisfied that the applicant seeks the visa for purposes for which a visa in the sponsored family stream may be granted. The tribunal must consider all other relevant matters and those include such things as the personal circumstances for the applicant that would encourage her to return to Pakistan at the end of the proposed visit, the personal circumstances or general conditions in Pakistan that might encourage her to stay here rather than go home, her credibility in terms of character and conduct, the purpose and proposed duration of the visit and proposed activities in Australia, and immigration and travel history.

The tribunal took evidence from the review applicant and the visa applicant. The visa applicant gave evidence by telephone from Pakistan. The review applicant said that he had sponsored three other relatives being his own mother and two nieces, one being [Ms A], one being [Ms B]. His mother came in 2015 and stayed for five or six months. [Ms A] stayed for about 11 months in 2017, a similar stay to what the visa applicant here is seeking. [Ms B] came in both 2017 and 2018. They all stayed with the review applicant in his house. As I said, he sponsored all and they all returned to Pakistan within the duration of the visa.

The review applicant is [age], originated in Kamalia I think it is in the Punjab. He has [number of] brothers and [number of] sisters, all are still alive. His mother is still living. His father passed away when he was in high school.

He said that his niece, the visa applicant, has recently finished her high school education. He himself was admitted to university in 2003 to study [Discipline 1], that was a [number] year degree, which ended in one year of practical experience. He graduated in 2008 and he [worked] for a few years in Lahore before coming to Australia.

He came to Australia in March 2012 and he was married at that stage and still is but he came some months before his wife who followed him in August of 2012. His wife also qualified as a [Occupation 1] in Pakistan before arrival. He arrived into Australia on a [temporary] visa. Initially he did voluntary work in [Industry 1] in [Organisation 1] but he was later offered a fulltime job at that [organisation]. He worked at [Organisation 1] for about three year’s fulltime.

The tribunal inquired as to why it was that he did the voluntary work before commencing fulltime at paid work and he explained that it was important in his profession for overseas [workers] to get to know the culture here in Australia and he found this helpful for him and it was a way of him getting into the system here in Australia. He did the voluntary work for about three months. His wife has also done voluntary work in [Suburb 1] and she is currently awaiting her registration approval as a [Occupation 1]. He and his wife have four children together, they are all Australian citizens. One is [age], one is [age], and there are twins aged [age] years of age. He and his wife are also Australian citizens; they obtained citizenship [in] June 2017. He said he returns to Pakistan every year or so to visit his family. His mother now lives with his brothers. She has lived in Islamabad but she is now living with another brother. She is in generally good health but she is a diabetic.

The visa applicant is now living in the city of Bahawalpur in the Punjab. As I said, she has just finished high school. He said she has an intention to go to university to study [Discipline 2]. The tribunal received evidence from her and she corroborated that, that she wished to go to university, but she said that she had not enrolled as yet. She wants to await the outcome of this visa application. She is doing a [specified] course at the moment and is due to finish quite soon. The visa applicant has one brother and [number of] sisters and she lives with her parents. Her father is the brother of the review applicant.

The tribunal asked for the review applicant’s view as to the security situation in the area where the visa applicant is living and he said that in recent years there has been no terrorist activity. He returns and he is not aware of any unrest in that area. He said that she has no reason to fear for her safety or wellbeing in her home area. He confirmed that she has no health issues. The visa applicant herself told the tribunal that is so.

She does not know anybody else in Australia apart from her uncle, the review applicant. She does speak some English. Her parents support her totally. He said that his brother and his wife being the parents of the visa applicant had never been to Australia themselves. He said his brother worked as [Position 1] of a [business] and is able to support his family financially.

As the tribunal understands it, the current plan for the review applicant and his wife is that once she gains registration she will work in [Industry 1] in [Suburb 1]. It appears likely that he will once he has finished his training move to Perth to [Organisation 2] in [a specified] field. That will leave her and the family still living in [Suburb 1]. He said that when his twins were born he took some parental leave. At the moment he is doing some [work] at [Organisation 3] here and there but he plans to go fulltime work in August.

He confirmed that he has about eight nine months left to qualify him in [a specified field] here in Australia. He says the [workplace] in [Suburb 1] are supportive of their situation. He also said that [Organisation 3] only has one [specially] trained [employee] living in the city and they [send in other specialised employees] on as needs basis.

The tribunal inquired as to who will pay for the visa applicant to fly here and return home and he said that he would be. The tribunal inquired as to how long the visa applicant intended to come here for and he said 10 or 11 months until he finishes his training. The tribunal inquired as to what she would do if she was granted a visa and he confirmed that she will have a role to play in looking after the children but she would also venture out on tourist activities with him and his wife.

The tribunal accepts that is so, she will likely do some tourist activities, however the primary reason is very clear and that is that she will help out with the review applicant and his wife with caring for the children and running of their house.

The tribunal asked the review applicant why it should accept that she will return within the period of the visa and he said that she has close family back home to return to. She wants to study [Discipline 2] in Pakistan. He said that he had sponsored three close members of his family previously and they had all returned. The tribunal has seen two or three I think it is approved visa applications for family members and there is nothing to indicate that there were concerns of immigration. He also made the point that the visa applicant’s sister being another niece of his had stayed and had gone back home.

He told the tribunal that his niece has never travelled outside of Pakistan. He has no plans or firm plans to return to Pakistan at this point in time. The tribunal inquired as to what impact it might have on his professional reputation and employment if it were the case that the visa applicant overstayed and he confirmed that it could have an impact in his view on future applications of sponsorship for other relatives. And it would also be potentially viewed negatively by employers here in Australia.

The tribunal then spoke to the visa applicant by telephone using an interpreter. She is now [age]. She was born in the Punjab area. She has [number of] sisters and one brother. She is currently living with her parents and is earning no money, her parents support her fully. She confirmed she is doing [a specified] course and she will finish that soon. She confirmed that she wants to go to university at [University 1] in Multan, which is in the Punjab. She has not applied yet because she wants to await the outcome of this review.

The tribunal accepts that if that is so, then there would be little benefit of applying at this point in time, if she was to stay in Australia for some months. She confirmed that her health is generally okay. She has no bank account and she no savings and she has no assets or property. That is normally an important consideration in these sorts of matters, however the reality is she is only just turned [age] having just finished school. It would not be anticipated whether in Pakistan, Australia or elsewhere that a person of that age would necessarily have any assets, any employment, any savings. The tribunal places really no weight on that.

She has travelled within Pakistan however, having been to Lahore, Multan, (indistinct) and other areas. She confirmed that she has no reason to fear for her safety or security in her home area. She confirmed she wishes to stay for about 10 months. She confirmed she wants to help her uncle and aunty out but has no other reasons apart from wanting to see the (indistinct).

The tribunal inquired with her as to why it should accept she will return and she gave the example of her own sister having stayed for a similar period of time and who did go back within the period of the visa. She wants to resume her studies. Probably commence her studies is the right word. She will be paid for by her uncle. And that was the extent of her evidence.

So the tribunal has to be satisfied that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted having regard to whether she has complied with conditions to which any last substantive visa or any subsequent bridging visa was subject. The tribunal has listened carefully to the evidence of the review applicant and found him to be quite credible in the manner in which he gave his evidence, his response to questions, and has no reason to have any issue about his credibility or character.

The tribunal although hearing by phone from Pakistan found the visa applicant to be relatively straightforward and honest in the answers that she gave. There is a history of compliance and that is close relatives of the review applicant have all stayed for some months but have all returned and they were all sponsored by him. The tribunal accepts that there are good reasons for the review applicant’s family to have her stay for some period of time whether 10 months is consistent with a visa it is perhaps arguable but that is not a matter that needs to be really assessed by this tribunal, it is whether she genuinely intends to stay temporarily.

Having weighed everything individually and cumulatively the tribunal is satisfied that the visa applicant’s intention is to stay temporarily for the purpose for which the visa is granted. The tribunal has had consideration to her personal circumstances that would encourage her to return, the personal circumstances or conditions in the home country, her credibility in terms of character and conduct, the purpose and proposed duration of the visit and proposed activities, and the immigration and travel history although not much weight can be given to that at all.

So having considered all of those matters the tribunal considers it appropriate to remit the matter back to the department for further consideration and it does so.

END OF ORAL DECISION  [11.42 am]

Michael Judd
Member