Afzal (Migration)

[2022] AATA 5168

Afzal (Migration) [2022] AATA 5168 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Samina Afzal

VISA APPLICANT:  Mrs Shamim Akhtar

CASE NUMBER:  2209664

HOME AFFAIRS REFERENCE(S):          BCC202284392

MEMBER:Stephen Witts

DATE:6 December 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 06 December 2022 at 2:40pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – property ownership in Pakistan – family connections in Australia – economic and social situation in Pakistan – decision under review affirmed

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 25 April 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 1 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 visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 6 December 2022 to give evidence and present arguments.

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

7. The Tribunal also notes that it heard a linked matter in conjunction with this matter, case number 2209446, which included the same review applicant and Mr Muhammad Afzal, the father and husband of the review applicant and visa applicant respectively in this matter.

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

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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.

13. 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)).

14. The Tribunal notes that there is no evidence before it of any substantive visa breach by the applicant in this matter.

15. The Tribunal has considered material and evidence provided prior to the hearing as well as evidence provided at the hearing.

16. According to the delegate’s decision record dated 25 April 2022 provided to the Tribunal by the applicants, the delegate considered the applicant’s personal circumstances, commitments, and incentive to return to their home country of residence, Pakistan, and made a decision that the visa applicant did not genuinely intend to stay in Australia temporarily.

17. According to the delegate it acknowledged that the visa applicant’s husband (as above also part of this linked matter) had property ownership in Pakistan but that considering personal circumstances such as family members in Australia and close personal ties here in Australia, contended that these matters outweighed the others referred to above. It was also stated by the delegate that financial support was offered by the review applicant and a support letter was provided from a member of Parliament.

18. The Tribunal notes that it has also considered material provided by the applicants including a letter from the review applicant, details of home and land ownership, personal statements from the parties, pension material, and other material.

19. As above, the Tribunal notes that a submission was provided by the review applicant stating that the visa applicants, her mother in this matter, and her father in the linked matter as above, genuinely intend to return to their home country and that they do have incentive to return including property jointly owned with others, and that although she and her brother are permanent residents and citizens respectively, that the visa applicants have significant incentive to return home.

20. The Tribunal notes that material regarding homeownership, and land ownership was provided for the visa applicants.

21. The Tribunal also notes that a statement was provided by the visa applicant Mrs Shamim Akhtar, dated 26 June 2022, starting she and her husband the other visa applicant in the linked matter intend to visit Australia for a short time as they want to visit their daughter and her two children, it was stated that the granddaughters have not had the opportunity to visit Pakistan for the last two years due to the review applicant’s work commitments and border closures. It was stated that she is a doctor in Australia who is employed with the government of Western Australia, that she contributes to the Australian community, that she recently separated from her husband, that it is difficult for her to obtain leave, and on that basis she and her husband felt that it was a good time to visit her in Australia. It was stated that her husband owns land in his home country which is jointly owned with other owners and that he cannot sell or lease this land without the consent of the other owners and that these owners must all be physically present at time of any transfer and that therefore he has incentive to return to his home country. It was also stated that he has funds in Pakistani bank accounts and that he is in receipt of a government monthly pension and that to continue to receive it must be physically present in Pakistan.

22. The Tribunal also marks a similar statement from the visa applicant’s husband, also the applicant in the linked matter, stating the same or similar evidence.

23. At the hearing the Tribunal had a discussion with the parties regarding the application.

24. The review applicant stated that she married an Australian citizen in Pakistan in 2014 and that she arrived in Australia in 2015. She stated that she works as a doctor in the health system and that she has two daughters one aged six and one aged five years old and that she is separated from her husband.

25. She stated that she has no other members of her family here in Australia except a brother who is also a doctor and single, and that he first arrived in Australia on a partner visa having been married back in his home country of Pakistan and that he separated after his arrival here in Australia, and then subsequently made a successful application for a protection visa. The review applicant stated that she was not sure as to the grounds of the protection visa but understood it was connected to the fact that her brother worked in a high-status occupation in a big city and that therefore he may have thought he was at risk.

26. She further stated that she has a total of three siblings, one is her brother here in Australia, and that she also has another brother who is also a doctor in the USA and a sister who is in the UK. She stated that the only one of the four siblings that have any children was herself.

27. She also stated that her parents have not had any experience in international travel except for an occasional visit to the neighbouring country of India as her father has sisters living there. She stated that she has returned home to her home country on two occasions since 2014, once in 2016 for five months and also on one occasion in 2019 for a visit for six months with the children.

28. She stated that her father did have a previous separate application to Australia for a visitor visa which was rejected.

29. She further stated that her parents will return home to their home country and that they do have an incentive to return. She stated that her parents owned property in her home country jointly with her father’s brothers and that they can sell the property, but it would have to be via some form of family agreement, that he is a retired high school teacher, and that his mother was a housewife.

30. She stated that it is difficult for her to go overseas anymore because of her children’s age and her work commitments and that she only has 28 days leave per year and that there is not significant flexibility in terms of when she can take this leave while working in the hospital system.

31. The visa applicant, Mr Afzal, stated that he and his wife want to travel out to Australia to see their daughter and that he has incentives to return home including property owned in Pakistan and also that he has a pension that he must present for, and that also he has court hearings to attend regarding a property matter that is forthcoming.

32. The Tribunal has considered the evidence given by the applicants very carefully. The Tribunal notes that two of the visa applicants four children and all their grandchildren live in Australia and that the visa applicants also have neither of their remaining two children living in their home country, one being in the United Kingdom and one being in the United States of America. The Tribunal does note that the visa applicants have stated that they have some family in their home country including a mother and two sisters of Mrs Shamim Akhtar. It was also stated by the visa applicants that they have various friends and a social circle back in their home country.

33. As stated, the Tribunal has considered this carefully and finds that the visa applicants have a considerable incentive via their family connections to maintain residence in Australia should they come here as visitors because their two children reside here, and their grandchildren also reside here. The Tribunal finds that this lends weight to the contention that once here in Australia as visitors together the visa applicants may attempt to maintain residence here in Australia with their immediate family members and that they do not genuinely intend to stay in Australia temporarily.

34. The Tribunal also notes that neither of the visa applicants have travelled outside the home country of Pakistan except for visits to India, an immediate neighbouring country to visit other relatives. The Tribunal notes that it has been stated that the visa applicants have not undertaken any other overseas travel and yet are now stating that they wish to travel a considerable distance as genuine visitors to come to Australia. The Tribunal further notes that India does not necessarily feature as an enviable destination for individuals seeking a favourable net migration outcome and that therefore trips to India to visit relatives does not constitute an example that the visa applicants have travelled outside their home country for the purpose of a visit in that they have not travelled to any comparable country to Australia that necessarily and hypothetically constitutes an enviable migration outcome. The Tribunal therefore finds that this travel history does lend weight to the contention that the visa applicants once here in Australia may seek to convert their visit to a more long-term residence and that they do not genuinely intend to visit Australia temporarily.

35. The Tribunal also notes the visits the review applicant has made to her home country of recent times including for six months in 2019 and for up to 5 months in 2016 with the children and that therefore a decision to travel to Australia despite those relatively recent visits might suggest that the visa applicants have intentions to come to Australia other than as visitors and that they may not genuinely intend to stay in Australia temporarily.

36. The Tribunal has also considered the evidence provided as to the financial assets including property, land, and some cash that the visa applicants may have in their home country. The Tribunal considers that should the visa applicants be successful in coming to Australia these assets may in fact not act as a significant encouragement for the applicants to return as such assets can be liquidated, leased, or in some way left as family assets held in common, or in some other way managed from Australia, and that therefore do not feature as an encouragement for the visa applicants to return to their home country.

37. The Tribunal also notes the statements from the visa applicants that they must return to attend to a court action regarding a property matter and finds that this may also not necessarily be a significant incentive to return home as such legal matters could be delayed or finalised through legal representation organised either from Australia or prior to leaving Pakistan and that therefore this does not necessarily feature as a significant incentive for the visa applicants to return to their home country.

38. The Tribunal also notes the statements by the visa applicants regarding the need to return to their home country to receive their pension and finds that this may not necessarily feature as a significant incentive to return home as other arrangements may be made to receipt those monies in some transfer arrangement or otherwise held in trust other than by having to be physically present at the relevant government department.

39. The Tribunal has also considered the situation regarding the economic and social situation in Pakistan noting that this country does not provide the beneficial economic and social advantages that Australia provides as demonstrated by recent and contemporary country information reports provided by the Department of Foreign Affairs and Trade and this also lends weight to the contention that the visa applicants may lack an incentive to return to their home country.

40. Taking all these factors into consideration the Tribunal finds that should the visa applicants be successful in coming here as visitors taking into contention the circumstances both in the visa applicants’ home country as above and also the visa applicants’ family circumstances in Australia that the visa applicants may seek to stay here in some form on a long-term basis and that they do not genuinely intend to stay in Australia temporarily.

41. Accordingly, the Tribunal is not satisfied that if the visa applicants were to come to Australia that they would not seek to change their status on shore, given the benefits that they would derive. The above-mentioned factors give the Tribunal significant concern that the visa applicants would seek to change their status on shore and/or remain in Australia on a permanent basis.

42. 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

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

    Stephen Witts
    Member