1904635 (Migration)

[2021] AATA 1601

1904635 (Migration) [2021] AATA 1601 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904635

MEMBER:Rosa Gagliardi

DATE:29 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 29 March 2021 at 2:59pm

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 – employment overseas – 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 January 2019 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 8 January 2019. 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.

5. The review applicant/sponsor 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 1817745).  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 and ailing father. 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 works as [an occupation] in [Country 1] even though he is a Pakistani national.  Apart from visiting his family in Pakistan, the applicant stated at hearing that he had not undertaken any travel. 

12. The Tribunal can not place favourable weight on the applicant’s travel history to make a positive finding that the applicant has complied substantially with the conditions of any previous visas.  The Tribunal does understand that the applicant is required to renew his status in [Country 1] every second year as he does not have citizenship of that country and there is nothing before the Tribunal to indicate that the applicant has been anything other than compliant with his visa conditions while in [Country 1].

    cl.600.611(b)

13. 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)).

    ·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.

14. 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 live with his second wife, who is not the mother of the applicant.

15. It appears that the sponsor is having [surgery] and the applicant wishes to be present to provide support and post-surgical care to his father.  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 the applicant’s family and the family of his brother, [named].

16. The Tribunal did have 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 Tribunal’s part and has no bearing on whether the applicant genuinely intends to stay in Australia for the purpose for which the visa is granted.  On the other hand, should the sponsor have been prepared to manipulate the migration program, it is open to the Tribunal to query whether the applicant has a similar intention.  The Tribunal is satisfied, however, that the applicant’s circumstances are dissimilar to those of his father and that the sponsor’s father’s migration history should not cloud the Tribunal’s assessment of the applicant’s intention. 

17. Evidence has been submitted that the applicant’s home, though he is working away in [Country 1], is in Sialkot, Punjab where his wife and children live.  At hearing the applicant stated that he had not transferred his entire family to [Country 1] because he did not want to disrupt his children’s education.  The applicant stated that he was very happy with the level of education being received by his children.  His family in   were well served by health and other services.

18. The applicant also stated, and the Tribunal accepts this to be the case, that in several years he would retire from [his occupation] and would return to Pakistan to assist his [brother] manage their father’s land holdings which were extensive and profitable.  The sponsor had inherited these lands from his father, [named], who was a general in the British Army and was granted land under the Shahi Muzara Scheme.  It is argued that the lands are profitable and that his [brother] hired several people to assist with management of production on the properties.  The applicant and [his brother] have applied for the sponsor’s lands to be put in their names once the sponsor passes away.  The Tribunal has sighted credible evidence of such land holdings in the name of the sponsor.

19. The Tribunal is persuaded by the evidence provided at hearing by the applicant in which he expressed strong ties to his ancestral lands in Pakistan.  The Tribunal is satisfied that the ties to his father’s land holdings, together with his young family in Pakistan, represent strong incentives for the applicant to return to his work in [Country 1] on return from a brief visit to Australia, prior to him ultimately returning to his homeland to become involved in the management of his father’s land and the applicant’s ultimate inheritance (shared with his brother). 

20. The Tribunal notes that the applicant has submitted evidence of having a savings account with [a named] Bank which held, as at 13 December 2020, 36,531.57 [Country 1 currency], which is roughly equivalent to AUD[amount].  The Tribunal accepts that this is a large enough sum to fund the applicant’s travel to Australia to see his father for around one month.

21. The Tribunal expressed concerns at hearing that the applicant did not have residency in [Country 1] and that by implication, were conditions to change in that country, he might not be permitted to stay in [that country], as he had no meaningful right to enter and reside there.  The applicant stated, however, that he has not had difficulty with renewing his status in [Country 1] and, in any event, it was never his intention to remain away from his home country permanently.  He was simply working there as his ultimate goal was to return to Sialkot, Pakistan to be with his family and manage his ancestral lands.

22. The Tribunal accepts that the applicant intends to return to his home area in Sialkot but at hearing noted that even so, the security situation in Pakistan was not stable as the country had been subject to waves of terrorism.  The applicant stated that this was no longer the case.   It was argued that, in any event, his family led a stable and peaceful life in Sialkot.  When their father came to Australia some thirty years ago the situation in the country which prompted him to apply for protection was markedly different.

23. 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.

24. 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)

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

26. The Tribunal accepts that it is not likely that the applicant would succeed in any protection visa application.  Nonetheless, initially the Tribunal had concerns about the applicant having an intention to apply onshore for a Carer visa to look after his elderly father.  In mitigation, however, is the fact that the sponsor has a spouse who can care for him long-term and further, he would have access to the National Disability Insurance Scheme should he require it.   Such a visa application would also be likely to fail.

27. Having considered the evidence individually and cumulatively, 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

28. 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.