2306995 (Migration)

[2024] AATA 2582

2306995 (Migration) [2024] AATA 2582 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2306995

MEMBER:Christine Cody

DATE:28 June 2024

PLACE OF DECISION:  Sydney

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 28 June 2024 at 3:50pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – balance of siblings in Australia – willingness to provide a security bond – limited financial standing – family wedding in Australia – previous compliant family visits – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 24 March 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 11 March 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.

   The Departmental file

4. According to the visa application form, sponsorship form, and supporting documents:

   ·     The visa applicant is [age]-year-old widowed woman who was born in Karachi, Pakistan. She is a housewife. She would like to visit her younger brother, aged [age] years, the review applicant, who is an Australian citizen[1]. He is sponsoring her and paying for all her expenses. The proposed period of stay is from 1 May 2023 to 31 July 2023 (up to 3 months).

   ·     Her non-accompanying members of the family unit are [Sister A], her daughter, aged [age] years. 

   [1] Biopage of passport issued [in] 2022 by Australian authorities is provided.

5. The visa applicant has never previously visited Australia, although she has previously unsuccessfully applied for a visa to Australia. It was stated that her applications for a visitor visa were refused on 3 occasions. She currently holds visas to [Country 1] and [Country 2].

6. The review applicant is [an occupation 1] who is employed. The applicants also have a brother, [Brother A], aged [age] years, and a sister, [Sister A], aged [age] years, who reside in Australia. 

   Supporting documents

7. The supporting documents provided to the Department are identity documents, documents relating to: the finances of the review applicant and his wife (bank statements showing significant balances and the review applicant’s payslips); the visa applicant’s past travel (her passport stamps relating to travel to [Country 1]), the relationship between the applicants and details of their siblings (family registration certificate), evidence of the death of the visa applicant’s husband, and a Pakistan lease document.

8. Also provided were affidavits of the applicants confirming that the visa applicant’s [siblings] are settled in Australia and she wishes to visit them. She is a widow who receives rental income.  She has no criminal record. She solemnly swears that she will comply with conditions and return to Pakistan. The review applicant is aware of his responsibilities as a sponsor and he is willing to provide a bond.

9. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211, namely that the applicant genuinely intends to stay temporarily in Australia for the purposes for the purpose of the visa:

   The applicant claims that their purpose for travelling to Australia is visiting family.

   I have considered the applicant’s personal circumstances in their home country and future circumstances in Australia. Based on the information the applicant has provided in their application, they have no dependent family member in home country. As such, I have concerns about the applicant’s personal incentives to depart Australia and abide by their visa conditions.

   Having reviewed the evidence provided, I note that in the visa application form, the applicant stated that she is a housewife. The applicant appears to have no income stream based on the documents provided. As such, I do not consider that the applicant has strong employment or economic incentives to return to home country at the end of the applicant’s proposed stay in Australia.

   I have considered the applicant’s economic circumstances and note that they have provided some evidence of their financial standing. I have attached little weight to this document as evidence of the applicant’s financial means, as on its own, it cannot be considered as significant evidence of their overall financial situation. As such, I do not consider that the applicant has strong economic incentives to return to home country at the end of their proposed stay.

   The applicant didn't provide any evidence of their international travel to the countries which share a comparable set of immigration laws or framework as is established in Australia therefore providing little indication of their future compliance with visa conditions.

   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 that 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.

   The Tribunal

10. The review applicant provided an application for review form and a copy of the delegate’s decision record. Prior to the hearing, further submissions were received from the review applicant with copies of documents previously provided to the Department, as well as updated financial documents relating the review applicant (bank statements and payslips). The review applicant noted that his nephew would be getting married in Australia and this would be another reason for his sister to come (supporting document provided).

11. The Tribunal invited the review applicant to attend a hearing via MS-teams video, and to provide information to the Tribunal before the hearing as follows:

    •The basis of arrival and stay of yourself, your [siblings], in Australia, including date of arrival in Australia for each.

    •The reasons why the visa applicant’s three previous visa applications were refused.

12. In response the review applicant stated:

    The basis of arrival of myself, my [Brother A], and my [Sister A] in Australia is given below:

    I arrived in Australia on a subclass 116 Carer visa in May 2016. My [Brother A], arrived in Australia around 1990 and was granted a subclass 816 Skilled Former Refugee visa in 1998.

    My [Sister A], arrived in Australia in December 2006, probably on a Designated Area-Sponsored Permanent Visa. We don't know the exact visa subclass number for [Sister A] and cannot get it from her because she is currently performing Hajj with her husband in [Country 1] and is not contactable.

    My sister, [the applicant], has had her visa refused more than three times. One visa was refused after we lodged this AAT appeal. I guess her visa has been refused five or six times in total. The only reason for rejection, according to the visa officer, was that she was not a genuine visa applicant. I feel the visa officer has refused her visa application multiple times because of her natural circumstances, which she cannot control. My other [specified relatives] have visited Australia recently, complied with the visa conditions, and left Australia without any breach. I do not understand why [the applicant] is not considered a genuine applicant.

13. The review applicant appeared before the Tribunal on 25 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Clarification of the relevant stream of visitor visa applied for and refused by the delegate

15. The visa applicant applied for a visitor visa in the sponsored family stream (according to the application form). Her application was acknowledged as an application in the sponsored family stream by the Department. The notification of refusal letter stated that the application for a visa in the sponsored family stream had been refused (“Notification of refusal of application for a Visitor (class FA) Visitor (Sponsored Family) (subclass 600) visa”). The delegate’s decision record commences by stating that the visa application was in the sponsored family stream, it then considers cl. 600.211 and refuses the application on that basis. However, the decision record concludes by saying that the visa application in the Tourist stream is refused.

16. The Tribunal notes that clause 600.211 is part of the common criteria for both the sponsored family stream and the tourist stream. In the Tribunal’s view, the delegate made an error when stating the refusal was for a visa application in the tourist stream. The Tribunal corresponded with and discussed this with the review applicant who agreed that it was an error by the delegate. The Tribunal considers that the the delegate refused the visa application in the sponsored family stream.

    The issue

17. 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.

18. The Tribunal has weighed up the oral and documentary evidence. The Tribunal accepts that the review applicant and visa applicant were credible witnesses whose evidence was consistent with the documentary evidence. The Tribunal accepts the following information sourced from the oral and written evidence:

    ·     The review applicant said that there are three siblings in Australia, and [number] who reside in Pakistan.

    ·     The review applicant [details deleted] has been here about 8 years. He (and his wife) came to Australia with a carer visa to look after his sister-in-law [Sister-in-law A], the wife of [Brother A], his brother. She had several operations in Australia for [specified] problems. She is still sick and his wife still looks after her. His sister [Sister A] came here in 2006 as a dependent of her husband who was a skilled migrant. [Brother A] initially came on a student visa then he was granted a refugee visa a long time ago on the basis of his political involvement. 

    ·     There are no other family members are in Australia.

    ·     Their parents are not alive. There was another sibling [Brother B] who passed away in 2018. 

    ·     His [Sister B] who lives in Pakistan visited Australia recently this year and she left about 2 months ago, she complied with conditions of her visa and departed before the expiry of her visa. Her husband is retired and she has children who live with her. She was sponsored to visit by [Sister A]. 

    ·     The visa applicant has applied on a number of occasions and been rejected as the Department believes she is not genuine. She applied when she was married and since she has been widowed (in about 2017). She does not have any health issues. Her husband was [an occupation 2]. The visa applicant receives rental income and is supported by the review applicant and his brother.

    ·     The visa applicant did not work and she had 1 daughter, [Sister A]. [Sister A] has children and does not work.

    ·     [Sister-in-law B], the review applicant’s  sister-in-law, visited in 2022 after her husband (his [Brother B]) passed away and she complied with the conditions of her visa and departed before the expiry of her visa.

    ·     [Relative A], [Sister A’s] husband’s sister visited and she complied with the conditions of her visa and departed before the expiry of her visa. She has recently returned again as a visitor.

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

20. 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)).

21. The Tribunal accepts the evidence that the visa applicant has never previously come to Australia.

22. 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.

23. The applicants confirmed that the visa applicant would comply with these conditions. Having regard to the credibility of their evidence, the Tribunal accepts that the visa applicant intends to comply with those conditions.

24. The Tribunal accepts that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.

25. The Tribunal discussed with the review applicant its concern that his brother had previously come here on a temporary visa and claimed protection and it was concerned that this, as well as the presence of her siblings, may be an incentive for her to seek to stay. The review applicant said that she has her life in Pakistan, she has her daughter there and she would not want to leave her. He said she has not experienced problems in Pakistan (either on the basis of her gender or religion or ethnicity or for any other reason).

26. The visa applicant was asked about her life in Pakistan and she confirmed that her daughter is a strong incentive for her to remain in Pakistan, and that she lives part of the time with her daughter and part of the time in her own house. She has for a long time been involved in teaching the Quran to children and she does this on an almost daily basis. She goes for a walk with friends about 2km every morning. Her husband died in Pakistan and she does not want to come to live in Australia.

27. The Tribunal accepts the argument that the visa applicant’s circumstances are different to her brother who claimed protection a long time ago.   

28. The Tribunal has considered the Departmental movement records for the review applicant, his siblings, [Sister-in-law B] and [Relative A], which support the evidence above. While his brother claimed protection a long time ago, the Tribunal accepts that since then, the relatives who have come and gone from Australia have complied with the conditions of their visas and have departed before the expiry of their visas. It also accepts that the applicants’ [Sister B] recently visited and returned to Pakistan. While she had an incentive to return in the form of her immediate family, the Tribunal accepts that the visa applicant’s daughter and her grandchildren and her life in Pakistan are incentives for the visa applicant to return to Pakistan.  The Tribunal does not consider that her economic circumstances are a  significant factor in this case.

29. The Tribunal has also considered that the review applicant is prepared to offer a bond.

30. The Tribunal is satisfied that the visa applicant is settled in her life in Pakistan and that she intends to visit her relatives here and then return home to her daughter, grandchildren and her home and life in Pakistan. The Tribunal accepts the stated intentions in relation to her application for a visitor visa.

31. 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

32. 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.

    Christine Cody
    Member