Abbasi (Migration)

[2019] AATA 5660

Abbasi (Migration) [2019] AATA 5660 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Roomia Abbasi

VISA APPLICANTS:  Mr Abdullah Ayoubi
Ms Ravina Ayoubi
Ms Shaqayed Ayoubi
Mr Elyas Ayoubi

CASE NUMBER:  1805418

HOME AFFAIRS REFERENCE(S):          BCC2017/3684409

MEMBER:Melissa McAdam

DATE:17 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 17 December 2019 at 3:38pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine intention to stay temporarily for purpose of visa – visiting family, including newborn baby – previous refugee visa refused – incentives to stay or return – no other family in Australia – elderly parents, siblings and extended family in relatively safe region of Afghanistan – primary visa applicant’s stable employment in the United Arab Emirates, savings in Afghanistan and the UAE, and travel to other countries – review applicant and husband’s accommodation and support of visa applicants – offer of security bond – plans to sponsor other family members in future – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, condition 8531

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 3 January 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 5 October 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 (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 visa applicants are a family consisting of mother, father and two young children.  They provided the following information in their visa applications:

   a.Ms Ravina Ayoubi is a 24 year old woman from Mazar-e-Sharif in Afghanistan.  Her parents, three brothers and a sister also live in Mazar-e-Sharif.  Her other sister, the review applicant, lives in Australia. 

   b.She wants to visit Australia with her husband and two children to see her younger sister who was expecting a baby in December 2017.  Her sister and sister’s husband will support the visa applicants while they are in Australia.

   c.Mr Abdullah Ayoubi is a 32 year old man and the husband of Ms Ravina Ayoubi.  He lives in the United Arab Emirates where he works as an IT Consultant for the UN World Food Programme (UNWFP).  He has had this employment since 2011. His parents, one sister and a brother live in Mazar-e-Sharif.  Another sister lives in Iran.  He has savings in his bank accounts in Dubai and Afghanistan.

   d.Shaqayeq Ayoubi is a 7 year old child, the daughter of Mr and Ms Ayoubi. She lives in Mazar-e-Sharif with her mother.

   e.Elyas Ayoubi is a 6 year old child, the son of Mr and Ms Ayoubi. He lives in Mazar-e-Sharif with his mother.

   f.The review applicant’s husband has worked as a pizza chef and manager for over ten years.

5. The applicants submitted the following document copies with their visa application:

   a.Each of the visa applicants’ Afghan passports.

   b.Mr Ayoubi’s United Nations Laissez-Passer.

   c.Afghan National Identity papers for the visa applicants.

   d.Mr Abdullah Ayoubi and Ms Ravina Ayoubi’s Marriage Registration certificate.

   e.Mr Ayoubi’s UAE Driver’s License.

   f.Mr Ayoubi’s UAE Resident ID Card.

   g.Mr Ayoubi’s UAE Ministry of Foreign Affairs ID Card.

   h.A letter from the HR and Records Head, UNWFP, dated 30 August 2017, confirming that Mr Ayoubi has been employed by the UN World Food Programme from 25 August 2017 and holds a contract until 24 January 2018.

   i.A letter from the HR and Records Head, UNWFP, dated 10 August 2017, confirming that Mr Ayoubi has been employed by the UN World Food Programme between 25 February 2017 and 11 June 2017; and that he had also worked as a consultant for the UNWFP from 2011 until 2014, 2015 until 2016, and 2016 until January 2017.

   j.Mr Ayoubi’s UNWFP Cumulative Payroll Status report.

   k.Mr Ayoubi’s Afghanistan International Bank Account statement showing a closing balance of USD 8,730 as at 28 August 2017.

   l.Mr Ayoubi’s ADCB Bank Account statement showing a closing balance of AED 18,170 as at 28 August 2017.

   m.The review applicant’s husband’s Australian passport.

   n.The review applicant’s husband’s NSW driver's licence

   o.The review applicant’s Marriage Certificate.

   p.The review applicant’s husband’s PAYG payment summary.

   q.The review applicant’s husband home loan approval.

   r.A Statutory Declaration by the review applicant’s husband stating that he has worked as a chef and manager of a pizza bar for over 10 years.   He wants to sponsor the visa applicants to visit Australia for a family reunion. His wife, the review applicant. is pregnant. He will provide a bond for the visa applicants’ visit. His brother-in-law has a good job in Dubai and has funds to bring his family to Australia.

   s.The review applicant’s Afghan passport.

   t.The review applicant’s NSW Driver's licence.

   u.Medical documents confirming the review applicant is pregnant.

   v.Photographs of the applicants.

   w.A letter from the Immigration Department (Australia), dated 31 May 2017, refusing to grant the visa applicants a Refugee and Humanitarian visa.

   x.A letter from the applicants’ Agent, dated 3 October 2017, stating that Mr Ayoubi has a stable job with the UNFWP in Dubai and also holds a diplomatic passport. The review applicant needs help with the birth of her first child and wants to have a family reunion in Australia.

   y.A notice of Extension of Contract form the UNWFP to Mr Ayoubi, with end date 24 July 2018.An approval form the UNFWP for Mr Ayoubi to have leave between 15 January and 15 February 2018.

6. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because the presence of other family members in Afghanistan did not sufficiently demonstrate they would depart Australia within the validity of the visa; Mr Ayoubi’s employment may not provide sufficient incentive to induce him to return to Afghanistan or the UAE. Ms Ayoubi’s role as a housewife in Afghanistan was not sufficient incentive to induce her to return there. The visa applicants lodged a Refugee and Humanitarian visa application on 24 May 2017 which was refused on 31 May 2017 therefore the delegate had concerns they intended to reside permanently in Australia. Recent DFAT reports indicated Afghanistan is currently experiencing extremely dangerous security situation and very high threat of terrorist attack, with the frequency of attacks in Kabul increasing significantly. This situation may encourage the visa applicants to remain in Australia.

   Information to the Tribunal

   Pre-Hearing Submissions

7. The applicants submitted the following written information to the Tribunal:

   i.A letter from the Chief, Human Resources, UNWFP, dated 14 August 2018, to Mr Ayoubi, offering him a Regular Consultancy based in Dubai, expiring on 25 July 2019.

   ii.A Schengen visa issued to Mr Ayoubi on 7 September 2015.

   iii.A Schengen visa issued to Mr Ayoubi on 9 August 2016.

   iv.A Schengen visa issued to Mr Ayoubi on 3 June 2018.

   v.UAE MFA Identity Cards for Ms Ayoubi, Shaqayeq and Elyas, valid until January 2021.

   vi.A letter from the applicants’ Agent dated 1 November 2018 stating that Mr Ayoubi has a stable job in Dubai and would not risk is employment. The review applicant and her husband would like to spend some time with the visa applicants. The review applicant would like her sister’s support with her new baby.  The visa applicants applied for a Refugee and Humanitarian visa for the betterment of the entire family, including their parents. “The applicant family does not want to [leave] their elderly parents in Afghanistan and … stay in Australia.”  The review applicant cannot visit Afghanistan due to safety concerns.

   vii.Several photographs of the applicants with their families.

8. On 9 December 2019 the applicants submitted the following information :

   i.   The review applicant gave birth to a baby daughter on 2 December 2019.

   ii.     A letter from Abdullah Ayoubi stating that he has a good job and is supporting his entire family, including his elderly parents, in Afghanistan.  It is part of their culture to live with, respect and take care of parents. If he one day decides to move to Australia permanently he will do so legally and properly, not via a Visitor visa. He does not want to lose his job and the good income he has. He does not want to leave his parents without support in Afghanistan.  He does not want to create a situation for himself waiting in Australia for years until he may be allowed to live here and work.

   iii.    A Consultancy Contract between the UNWFP and Mr Ayoubi, dated 25 September 2019.

   Tribunal Hearing

9. The review applicant appeared before the Tribunal on 17 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.  The following is a summary of the information she provided at the hearing:

   a.She does not have any other family or relatives in Australia. None of the review applicant’s family have been able to visit her in Australia yet.

   b.Her husband has most of his family here.

   c.All the review applicant’s family are in Mazar e-Sharif in Afghanistan, except for her sister’s husband who is in Dubai.  He is mostly in Dubai but travels to other countries including countries in Europe. He is currently in the Philippines for his work.

   d.The review applicant’s sister often visits her husband in Dubai.  She lives in Mazar e-Sharif to look after her husband’s old parents, who she lives with.  She does not have any problems in Afghanistan because she mostly stays at home.

   e.About three years ago her parents travelled to India to visit.

   f.She acknowledges that the general security situation in Afghanistan is not good. However her family are not under theat. Also, if ever the security situation worsens they all have the option to go to Dubai.  About one and a half years ago the applicant, her husband, and their one year old daughter went to Mazar e-Sharif to introduce her new daughter to her family there.  The security situation at the time was okay.

   g.She is confident her sister and sister’s family will return to Afghanistan if they visits Australia because she has to look after her parents-in-law.  Her husband will not leave his parents behind in Afghanistan.

   h.The visa applicants want to visit Australia for three months.  Her sister’s husband’s siblings will look after his parents during this time.  But he is the eldest son so it is his ultimate responsibility to look after them.

   i.The review applicant’s parents are in good health.  The review applicant would very much also like them to visit her in Australia with her younger brothers.   She would feel very lonely if they can never visit.  Her father works in Afghanistan building and selling houses.

   j.The review applicant would be willing to lodge a security bond for her sister and sister’s family to visit Australia.  It would cause her and her husband financial hardship to lose a large sum of money.  They have mortgage payments to make and are saving for their daughters’ education.

   k.The visa applicants will stay at the review applicant’s home while they visit Australia. She and her husband have a 4-5 bedroom home.  They will all spend time together and go on outings and have fun.  Her sister will also help her with her two young daughters. The visa applicants will not remain in Australia because her husband is not able to financially support them all. 

   l.Her sister and sister’s family applied for Subclass 202 visas several years ago. At the time her sister’s husband’s salary was low and he hope to migrate to Australia and obtain work here.  Their situations have changed a great deal.  He now has a very good salary and a prestigious consultant position.  His parents were younger and more able to travel and migrate then too. They cannot now.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicants seek the visas for the purpose of visiting their sister (aunt, sister-in-law) and her family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. 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)).  None of the visa applicants have previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by them.

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)). 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.

14. The Tribunal accepts that the visa applicants will be accommodated and supported by the review applicant and her family while in Australia. The Tribunal accepts that the visa applicant, Mr Abdullah Ayoubi, has personal savings and sufficient funds to support the family during a visit to Australia. There is no indication before the Tribunal that any of the visa applicants intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied they each intend to comply with condition 8101.

15. There is no evidence or indication any of the visa applicants have an interest or need to study in Australia. The Tribunal is therefore satisfied they intend to comply with Condition 8201.

16. Condition 8503 refers to entitlement and is not a condition that involves compliance.

17. The visa applicants’ intention to comply with condition 8531 is discussed below in relation to whether they genuinely intend to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

18. The Tribunal accepts that the visa applicants are a family from Mazar e-Sharif, Afghanistan, with Mr Abdullah Ayoubi based and working in Dubai.  The Tribunal accepts Mr Abdullah Ayoubi’s aged  parents, and Ms Ravina Ayoubi’s parents and several siblings, also reside in Mazar e-Sharif.  The Tribunal considers that the presence of these close family members  represents significant incentive for the visa applicants to return to Afghanistan after a short stay in Australia.

19. The Tribunal accepts that the visa applicant Mr Abdullah Ayoubi has stable and valued income from his professional consultancy work with the UNWFP.  The Tribunal accepts that he would be highly motivated to maintain and resume such work after a visit to Australia.

20. The Tribunal gives substantial weight to the good migration history of the review applicant in Australia. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia. 

21. The Tribunal notes the review applicant’s wish to sponsor other family members, particularly her parents, to visit Australia in the future.  The Tribunal considers this further motivation for her to ensure the visa applicants do not breach any of their visa conditions and that they depart Australia before the expiry of their visa. 

22. The Tribunal acknowledges the information about the poor security situation in Afghanistan. This was also confirmed by the review applicant. However the Tribunal accepts that despite the insecurity in Afghanistan, many people continue to travel back and forth to the country and also choose to remain to live their lives in Afghanistan. The Tribunal accepts that the pull of family, friends, culture, language, and familiar lifestyle are sufficient motivation for the many people who travel, to return to Afghanistan. The visa applicants themselves have not personally experienced recent security incidents or threats.  The Tribunal notes that the review applicant has voluntarily returned to Afghanistan recently, and taken her young daughter to see her family there. The Tribunal accepts that if the security situation was threatening she would not have taken her daughter on such  a journey and exposed her to risk.  The Tribunal considers that the visa applicants’ personal circumstances, their settled extended families in Mazar e-Sharif, the lack of indication of any adverse profiles or behaviour, and the available option of going to Dubai if  the security situation deteriorates, suggests they will depart Australia and return to Afghanistan before their visas expire.

23. The Tribunal notes that the visa applicants previously applied to come to Australia on special humanitarian visas. This indicates the visa applicants would like to live in Australia. However the review applicant explained that their circumstances have changed significantly since that application, so that migrating to Australia is no longer an attractive option for them.  Her explanation was quite detailed and persuasive so that the Tribunal gives the visa applicants the benefit of the doubt  that they no longer wish to live in Australia. The applicants have identified several factors to motivate them to depart Australia and return to Afghanistan, including a refusal to abandon Mr Ayoubi’s elderly parents.

24. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

25. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Melissa McAdam
    Member