Abrar (Migration)

[2022] AATA 4791

Abrar (Migration) [2022] AATA 4791 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sadia Abrar

VISA APPLICANT:  Mr Saleem Ahmad

CASE NUMBER:  2207906

HOME AFFAIRS REFERENCE(S):          BCC2022/656280

MEMBER:Stephen Witts

DATE:20 December 2022

PLACE OF DECISION:  Melbourne

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 20 December 2022 at 1:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – children in home country and Australia – daughter in home country disabled and requires care – wife in Australia on own tourist visa – previous compliant travel by applicant and wife – applicant semi-retired and assisting in business owned by son – property holdings and financial assets – decision under review remitted

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

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 May 2022 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 15 March 2022. 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 (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 because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 20 December 2022 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

8. The review applicant was represented in relation to the review.

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

   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 applicant seeks the visa for the purposes of visiting Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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)).

13. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

15. The Tribunal notes it has been provided with a copy of the delegate’s decision by the applicants. In that decision the delegate contended that it had considered the visa applicant’s personal circumstances in their home country of Pakistan considering also that they have family members in Australia and made a decision that it was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia.

16. The Tribunal has also considered material provided prior to the hearing including a statement from the review applicant, a business letter confirming self-employment for the visa applicant, some bank information, and other material.

17. The Tribunal notes that in a statement provided by the review applicant it was stated that the visa applicant is her father, that her mother has been granted a visitor visa, and that her father is semi-retired and is assisting her brother in his business in their home country.

18. It was also stated that she has six siblings and that her brother and herself are in Australia while the other four are in their home country. It was also stated that her sister is disabled and requires support from her parents and that therefore they cannot stay away from Pakistan for extended periods of time.

19. She stated that she is working as a registered nurse and studying and that her husband is a full-time working professional, that they have three children, and that her parents support her siblings and their families in Pakistan, and that they cannot stay in Australia for an extended period of time. She also stated that she owns a three-bedroom house and can financially support her parents and that they intend a genuine temporary visit.

20. At the hearing the Tribunal had a discussion with the review applicant regarding the application.

21. She stated that she first came here in 2008 studying accounting and that she returned to her home country for a period of time and married and then came back and subsequently achieved permanent residency. She stated that she is currently studying a Bachelor of Nursing and Midwifery and that she has three children. She stated that her mother has a visitor visa that is still valid and that she is in Australia (since July this year) and that she is hoping that her father would also get a visa so that he can come out to Australia for a month or so and then her mother would return to her home country, and he would assist the family for a while here in Australia.

22. She stated that her mother has visited on three previous occasions and that her father has visited once and stayed for some months in 2015 with her mother. She stated that her mother has also visited in 2012, and in 2022 and as above that she is still here.

23. She stated that her parents have a significant incentive to return home to their home country in that her sister who is 30 years old and has a heart disorder which renders her significantly cognitively impaired lives with them, and that she needs special care when they are not able to care for her themselves. She also stated that although her father is retired that he is still assisting in expanding the business that is owned by her brother. She stated that she is here with one brother in Australia who has children and that the other four siblings who have several children between them are all living in Pakistan.

24. The Tribunal has considered the evidence carefully noting that the review applicant’s mother is here in Australia on a valid visitor visa and that she has visited several times before and has returned and that her father has also visited for several months in 2015 and that he too returned to his home country. The Tribunal has also considered evidence of the disabled daughter that they have back in their home country who requires care and that they have reasonable property holdings and financial assets back in their home country as well as significant family. On that basis the Tribunal finds that it is most likely that if given a visitor visa that the visa applicant will return to his home country after a visit here in Australia.

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

26. 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

27. 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.

    Stephen Witts
    Member