2306420 (Migration)

[2024] AATA 2510

2306420 (Migration) [2024] AATA 2510 (23 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2306420

MEMBER:Christine Cody

DATE:23 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 23 June 2024 at 6:20pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – financial circumstances – intention to comply with visa conditions – review applicant’s protection claim – Ahmadi Muslim – decision under review affirmed

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

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 19 April 2023 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 4 April 2023. 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 (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 as the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The delegate’s decision had been based upon financial/ economic matters, with the delegate stating in the decision record:

   Before a visa can be issued, applicants must demonstrate strong financial, employment and/ or personal ties which would demonstrate their incentive to abide by the conditions of that visa, and depart Australia at the end of their authorised temporary stay. I am not satisfied that the applicant has provided sufficient evidence to demonstrate such ties.

   I acknowledge that the applicant has provided evidence of financial support from their sponsor. While I have considered this evidence, I have attached less weight to this information as this is not in of itself sufficient evidence of a genuine visit. The onus is on the applicant themselves to provide evidence of their circumstances in their home country would demonstrate they meet the criteria. On balance, I am not satisfied that the applicant’s economic circumstances demonstrate they will return to their home country at the end of their proposed stay.

   After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

5. The review applicant appeared before the Tribunal on 20 June 2024 to give evidence and present arguments. She told the Tribunal that she did not wish for the visa applicant to give evidence.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Evidence before the Department

8. According to the application form and supporting documents:

   ·     The visa applicant was born in Punjab, Pakistan. He is aged [age] years, and is unmarried. He is the nephew of the sponsor/ review applicant, who is an Australian citizen. He seeks a family visit to his aunt and for tourism purposes. His passport was issued in 2022.

   ·     The review applicant was inviting both her nephew and her father to visit her in Australia for 1 month.

   ·     The visa applicant has previously applied for a visa to Australia.  

   ·     The visa applicant is a [Occupation 1] employed in Lahore. The review applicant would like to fund his trip in the sum of $15,000.

   ·     The review applicant is an Australian citizen[1].

   The supporting documents provided to the Department (and the Tribunal)

   [1] Australian passport provided.

9. The Tribunal had requested the whole file from the Department however certain supporting documents were missing and the Department did not provide these.  The member asked a Tribunal officer to ask the review applicant to email to the Tribunal all of the documents listed in and uploaded with the visa application form. She sent in a number of documents by email however it did not appear that all the documents listed in the visa application form were provided. The Tribunal discussed this at hearing and sought to ensure that it had everything relevant before it. The Tribunal did not consider it necessary to have all the earlier bank statements/ payslips, noting that some of those provided to the Department had been provided again, and that there were also updates on the Tribunal’s file. The Tribunal noted it did not have the sponsorship form[2] but this was not an issue as it accepts that the review applicant seeks to sponsor her nephew and the Tribunal noted that it did have documents showing their relationship[3]. The Tribunal also noted that it had the bio pages for their passports[4], documents relating to the visa applicant’s employment and finances[5], and his immunisation certificate. It noted that it had received the documents relating to the visa applicant’s studies[6] (the review applicant stated that these had not been provided to the Department, only to the Tribunal).  The Tribunal was also provided with an Affidavit of the visa applicant dated 2 May 2023 confirming that he owns a property which has been his primary residence for 5 years (with supporting evidence), and a letter from the review applicant to the Tribunal dated 8 May 2023 to support that her nephew will return home; he has a stable job and he is part of a farming financial business which trades [goods];  he has a substantial amount of money in his bank account; he owns property and agricultural land; he is secure and stable and connected to his home; he just intends to visit and then return; he has no intention to stay permanent and will return to Pakistan; he has staff and managers to help him run things while he is away; and the review applicant can’t go back home because of her work commitments.

   [2] The Tribunal considers that this must have been provided to the Department as the delegate did not suggest in the decision record that it was missing.

   [3] Family registration certificate showing the review applicant has a brother [Mr A], and the visa applicant’s family registration certificate showing that his father is that same person born on the same day, and the visa applicant’s birth certificate.

   [4] It also had Pakistan identity cards for review applicant and visa applicant.

   [5] Letters from the visa applicant’s employer confirming that the visa applicant has been employed [since] May 2021 and that he shows hard work and dedication. He supports that the visa applicant takes time off to visit his family and then return to work. Financial information/ payslips from his job were also provided, bank statements and letters relating to his bank account including a confirmation of his maintenance of a bank account.

   [6] Documents showing that the visa applicant is studying in a [college] from 2022-2024  “enrolled in [specified course]” (letter dated 5 May 2023) and the college approves him travelling for 1 month.

10. In discussion with the review applicant it was discovered that the Tribunal did not have the initial invitation letter from the review applicant[7] in which she invited her nephew for tourism and family visit, she will pay for all of his expenses, he will only stay 1 month, he will abide by conditions and not overstay and she is willing to submit a bond. He is responsible and well-behaved.

    [7] Emailed to the Tribunal that day.

11. The review applicant had also provided submissions in the application for review form that the delegate’s assessment of her nephew’s financial situation was incorrect:

    The immigration officer's decision was made based on the assessment of my nephew's financial circumstances. firstly, I would like to assure you that my nephew has a stable job and he is a part of a farming family business that trade [goods] this work provides him with a stable income for himself and the family. additionally, he owns the property and agricultural land, supporting his financial stability at home. furthermore, I would like to mention that my nephew has deposited a substantial amount of money in his bank account. which is available and can be fulfilling any financial requirements for his stay in Australia. however, I sincerely request that you please reconsider my nephew's application and allow him to visit Australia temporarily so can he meet his family members.

12. The review applicant confirmed, after discussions about the documents at hearing, that the Tribunal was aware of all the necessary documents and submissions and there was no relevant information missing.

    The Tribunal

13. In addition to documentation and the application for review form, the review applicant provided a copy of the delegate’s decision record and notification of refusal letter.

14. The Tribunal requested in the hearing invitation that the review applicant provide information to the Tribunal by 18 June 2024 including details and information about the migration history of her close relatives/ family members who had travelled to Australia and, information about the basis of the review applicant’s arrival and stay in Australia, including details about applications made in Australia and the outcomes of those applications. She did not respond to that request for information.  

15. The applicant provided a response to hearing invitation noting that she did not seek to rely upon any witness or documentary evidence.

16. The review applicant appeared before the Tribunal on 20 June 2024 to give evidence and present arguments via MS Teams. The Tribunal hearing was conducted without the assistance of an interpreter and the Tribunal was satisfied that the review applicant was able to understand the proceedings and present evidence and arguments.

    Consideration

17. In the present case, the visa applicant seeks the visa for the purposes of visiting his Australian citizen aunt.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

18. 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)).

19. The review applicant said that her nephew has not previously come to Australia.

20. 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.

21. The review applicant said that her nephew will comply with the visa conditions. He will not work or study in Australia, as he is coming here to visit them.

22. For the reasons discussed below, the Tribunal is not satisfied that the visa applicant genuinely intends to visit temporarily and that he intends to comply with the conditions of a visa.

    Other relevant matters and further consideration of the matters above

23. The Tribunal has also considered all other relevant matters (cl 600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

24. The Tribunal considered the above as well as the oral evidence. The review applicant told the Tribunal that the visa applicant has ties to Pakistan and will go back. The Tribunal accepts, for the purposes of this application, that: the review applicant receives a wage from a [store], that she has significant funds in a bank account, the visa applicant works and his bank statement shows regular deposits, he has property and family land, and he is studying. It accepts that he has these ties to Pakistan (as well as family) which are discussed further below.

25. The review applicant said that she is currently in Pakistan because her father is very ill. She had applied for him to come to Australia as well as the visa applicant however he had been refused because of his medical condition and need for renal dialysis.  She said that the visa applicant looks after her father (his grandfather): men are responsible for looking after men in their culture, and this is an incentive for him to return to Pakistan. She later said that her father is living with her younger sister (aged over [age] years) who cares for, cooks, and looks after him; she then said her sister can’t do everything such as lift him and tend to private matters. The Tribunal noted that she had given evidence that her whole family lives in Pakistan, and it put to her that there would be people who could assist her sister to look after her father.  

26. The review applicant said that her father has an older son who is currently in [Country 1]. She initially said he was there due to a family issue/ problem: she then said he was there for  business/ studying and he did not claim protection and he may come back in 4 years, he is studying. There is also a younger son living with their father who is [age] years of age. She said the young son could not assist in lifting up his grandfather. The Tribunal suggested that they could hire/obtain assistance and she said they don’t do that. The daughters are studying in college; the unmarried younger sister lives with her father, and the other daughters are married and live with their husbands (their occupations are [Occupation 2]/ [Occupation 3]/[Occupation 4]). 

27. The review applicant said that the visa applicant also looks after the family business.

28. The review applicant’s evidence suggested that the visa applicant was indispensable in Pakistan; however the Tribunal noted that the visa applicant was proposing to leave for a holiday whereby he could not attend to these tasks (initially according to the review applicant this was for 1 month; at hearing she said it would be for about 1 week). The Tribunal noted that this indicates that there are others who can assist. She said that her brother-in-law will assist with the father while the visa applicant is away but he cannot do this all the time.

29. Given that the review applicant said all her family is based in Pakistan, it is not satisfied that her nephew, who is working full-time and studying, is the only person who can assist her sister to look after her father.  It also put to her that others could assist with the business. She then referred to the occupations of the brother-in-law, indicating they are busy.

30. The review applicant said that she is not married. When the Tribunal asked her about other relatives who had applied to come to Australia she said that she has extended family and she is not close to them and she has no idea of their basis for staying in Australia.

31. The Tribunal asked the review applicant on a number of occasions the basis upon which she remained in Australia and she did not reveal, until the Tribunal repeatedly asked, that she had come to Australia and claimed protection. The review applicant had also not provided this information to the Tribunal prior to the hearing when asked for information about her immigration history in Australia.

32. The review applicant finally said that she had been granted a protection visa: she had applied for protection after she was studying in Australia and she went back to Pakistan and she was planning to study in another city but she received threats because it was discovered she was Ahmadi Muslim so she came to Australia and claimed protection.

33. She confirmed that her family is Ahmadi including the visa applicant. The Tribunal asked her whether Ahmadis have fears in Pakistan and she said that it depends on the area, her home area is fine. The Tribunal said if her home area was fine, it did not understand why she did not just return to her own home area instead of claiming protection in Australia. She said that it depends on the circumstances. She said at the time she claimed protection she was not mature; it was an impulsive decision. She said she was a genuine student who then claimed protection. When asked if she travels back home, she said she visits every few years; she said she is discreet.

34. The Tribunal put to her that she had given evidence that her nephew is an Ahmadi who is living and studying in a different city to her home area, which was similar to the circumstances which led to her claiming protection when her religion was discovered (according to her evidence). She said he does not have any problems and his area of study is closer to her home area than her area was.

35. The review applicant said she would like the visa applicant to come so that she can make some memories in Australia. The Tribunal has some sympathy for the review applicant; however it does note her evidence that she does return to Pakistan every few years. Although in her earlier letter she said she is busy with work, she told the Tribunal that she does travel back to Pakistan where she can see family every 3-5 years and she did not suggest in her oral evidence that she was too busy to return in the future. 

36. The Tribunal put to the applicant that country information[8] indicates that Ahmadis may have a fear in Pakistan, this could indicate that her nephew may be seeking to follow the same path as she had (namely to come to Australia on a temporary visa and then claim protection). She said that these are general assumptions and he will not do so. She offered to pay a bond to the Department.

    In summary

    [8] >

    The Tribunal has carefully weighed all the evidence.  The Tribunal has considered that the review applicant is prepared to offer a bond and the assurances that the visa applicant will return, and it accepts that he has built a life in Pakistan and has family and assets there and that he assists with her father’s care (when he is not working and studying) and with the family business.  However, the Tribunal considers that the presence of the review applicant in Australia, the fact that she came to Australia on a temporary visa and claimed protection, and the country information indicating the difficulties for Ahmadis as a result of their religion (noting the review applicant’s evidence that they have to hide their religion) indicates that there are significant incentives for the visa applicant to seek to remain permanently in Australia. Thus, while accepting there are incentives for him to return home, it considers that the incentives to remain in Australia are stronger. The Tribunal is not satisfied that the visa applicant would comply with the conditions that would be imposed on the visa given that these conditions are for a temporary visa and the Tribunal is not satisfied that the visa applicant’s intentions are for a temporary visit. The Tribunal is not satisfied that the visa applicant intends a genuine temporary visit as asserted by the review applicant and the documentation.

1. 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.

2. 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

3. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Christine Cody
   Member