Ahmad (Migration)

[2019] AATA 4103

Ahmad (Migration) [2019] AATA 4103 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Adeel Ahmad

VISA APPLICANTS:  Mr Ahmad Zeshan
Mr Ahmad Raheel

CASE NUMBER:  1818735

HOME AFFAIRS REFERENCE(S): BCC2018/2201973 BCC2018/2201970

MEMBER:Adrienne Millbank

DATE:5 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 05 July 2019 at 3:30pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – visa to visit brother – not genuine temporary entrants – employment not significant incentive to return home – evidence of significant ties to Pakistan not provided – incentives to remain in Australia outweigh incentives to return home – brother settled in Australia – higher wages – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.612, 600.231, Conditions 8101, 8201, 8503, 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 6 June 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 are Pakistani nationals, brothers aged 31 years and 40 years. The review applicant and sponsor is their brother, an Australia citizen who first entered Australia in 2009 on a short-term business visa and obtained permanent residence through the grant of an onshore Partner visa in August 2015.

3. The visa applicants applied for the visas on 22 May 2018. 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.

4. At the time of application the visa applicants proposed stays of up to three months in Australia. They proposed an arrival date of 20 July 2018 and a final departure date of 20 September 2018, and to celebrate with their brother in Australia the Eid al-Adha Muslim festival. At the time of decision they proposed to come at the time of the Eid festival in August 2019, and to stay for a period of one month. 

5. 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.

6. The Delegate refused to grant the visas on the basis that the visa applicants did not meet cl.600.211. The Delegate acknowledged in the decision records that the visa applicants had employment in Pakistan, but was not satisfied that their employment circumstances would encourage them to depart Australia at the end of the proposed period. The Delegate further found the applicants had failed to submit evidence of other significant ties that would encourage them to return to Pakistan within the validity of their visas. While acknowledging the support provided by the visa applicants’ brother in Australia, the sponsor and review applicant, the Delegate concluded that the applicants had not provided evidence of sufficient ties to Pakistan to demonstrate intentions of genuine temporary stays in Australia.  The Delegate therefore was not satisfied that the applicants genuinely intend to stay temporarily in Australia for the purposes for which the visa is granted.

7. The review applicant appeared before the Tribunal on 21 June 2019 to give evidence and present arguments. The Tribunal received oral evidence by phone from the visa applicants in Pakistan, and also received oral evidence from a witness, a friend of the review applicant who attended the hearing. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicants have complied substantially with the conditions to which the last substantive visas, or any subsequent bridging visas, held by the applicants was subject; whether the applicants intend to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

10. In the present case, the visa applicants seek the visas for the stated purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)).

12. In this case neither visa applicant has previously entered Australia or been granted a visa to enter Australia. The Tribunal acknowledges, as pointed out by the review applicant, that their mother was granted a Visitor visa in 2018 for the same purpose as the applicants, that is to visit him in Australia, and that she complied with her visa conditions.

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 visa applicants indicated at the time of application that they had no intention of engaging in study or training or applying for another visa while in Australia on a Visitor visa. At hearing they confirmed that they have no intention to engage in study or training or applying for another visa while in Australia. They further stated that they have no intention to work while in Australia or to remaining in Australia after the end of permitted stay. The Tribunal accepts that the visa applicants have no intention of studying or working in Australia during the period of an initial Visitor visa. For the reasons discussed below, the Tribunal is not satisfied that the visa applicants would not seek to remain in Australia after the end of their permitted stay, or that they would not seek to obtain another sort of substantive visa while remaining in Australia.

15. The Tribunal has considered all other matters relevant to the visa applicants’ claims to genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)).

16. Regarding the visa applicants’ employment and family circumstances in Pakistan, evidence was provided that the second-named applicant has a Master of Arts in English from the University of Sargodha in Pakistan awarded in 2013; that he obtained a Diploma in Business in Pakistan in 2014; that he has been employed as Marketing Manager in a tools and trading company since 2014; that at the time of decision he is earning 62,500 PKR a month (AUD 648); that in 2014 he purchased a 2007 model Toyota Corolla; that he owns agricultural and residential land to a total value of around AUD 79,000; and that on 17 June 2019 he held a balance in his bank account of AUD 17,585.

17. Evidence was provided that the first-named applicant is married and has a daughter born in 2017; that he has been employed since 2005 by the Pakistani government as a Security Guard in the Ministry of Water Resources where he has been recognised as a dutiful and punctual employee; that he earns around AUD 275 a month; that he has been granted 2 months leave for a family visit to Australia; that he owns agricultural and residential land worth AUD 35,176; and that as at 19 June 2019 he had a balance in his bank account of AUD 7,329.

18. At hearing the review applicant confirmed that both of the visa applicants live in the family home with their widowed mother, who is in receipt of a pension. He stated that one of his four sisters lives nearby and none of them has left Pakistan. When asked why he had not invited one or more of his sisters to visit him in Australia, he stated that he might consider this at a later date, but that his sisters have their own busy family lives to lead. When asked why he had not invited the first-named applicant to bring his wife and daughter with him, as the purpose of the visit was to unite with family at the time of the Eid festival, he stated that the first-named applicant’s wife had to remain in Pakistan to care for their mother, who is in her 60s and suffers from diabetes and related health issues.

19. When the review applicant was asked if he had taken his own wife to Pakistan when he travelled there from 25 March 2019 to 30 April 2019 and spent a month in the family home with his brothers, he stated that he had not. He confirmed that his wife, who was born in Fiji, has never been to Pakistan and has not met his brothers and his older brother’s family. He advised that his wife has been too busy to travel, and, further, that Pakistan is not safe for foreigners. When asked why his brothers needed to come to Australia to spend time with him, as he had recently spent a month living with them, he stated that he wanted to show them how he lives in Australia, and that he planned to travel with them around Queensland and take them to visit an old friend in Sydney. When the Tribunal asked the first-named applicant what he planned to do in Australia, where he planned to travel and what he wanted to see, he stated that he intended only a family visit, to stay with his brother and spend time with him. After some prompting, he stated that he might go to Sydney.

20. For the reasons that the first-named applicant proposes a family visit without bringing his own family, that the brothers have recently spent a month together, that the visa applicants did not appear to have plans to sightsee in Australia, and that the visa applicants showed hesitancy in responding to questions about their migration history, as discussed below, the Tribunal is not satisfied that a family visit combined with tourism is the primary purpose of the visits.

21. When the Tribunal asked the review applicant what countries the visa applicants had travelled to, he stated that his older brother had been to China and Hong Kong, and his younger brother had visited Saudi Arabia when he accompanied his mother on a religious pilgrimage. When the Tribunal asked the visa applicants if and where they had travelled to any other countries, they stated that they had not, that they had not left Pakistan. After prompting they acknowledged that they had in fact travelled to other countries. When asked why they had denied their previous travels, the first-named applicant stated that his visits to China and Hong Kong were in the past and irrelevant to his current application, and the second-named applicant stated that he was confused by the question.

22. When the Tribunal asked the review applicant whether his brothers had applied for other visas to enter Australia, he advised that his older brother, the first-named applicant had not, but that his younger brother, the second-named applicant, had applied for a Student visa in 2017, and was refused. He stated that his brother was at the time considering a career change, to human resources, and enrolled in a two year Masters degree course of study. The Tribunal put to the review applicant that in written submissions and other evidence provided in support of the Visitor visa application the claim had been made that his younger brother’s successful and established career, since 2014, as a marketing manager, was his main incentive to return to Pakistan. The review applicant stated that his younger brother was happy with his employment, but ‘just thought of changing his career’, and/or thought that another Masters degree could help his career with the same employer.  

23. When the Tribunal asked the second-named applicant whether he had previously applied for a visa to enter Australia, he stated, after some hesitation, that he applied for a Visitor visa which was refused.  When pressed, he acknowledged that in 2017 he applied for a Student visa to undertake a two year Master of Human Resources course. When asked what his plans were at that time, he stated that he had planned to return to Pakistan and either open his own business, or return to the same employer.

24. Following the procedure of s.359AA of the Act, the Tribunal put to the review applicant that it had concerns regarding the inconsistencies in the visa applicants’ oral evidence with evidence that he had provided. The Tribunal advised the review applicant that he could seek an adjournment and consider his response to these concerns, or to any question asked by the Tribunal. The review applicant did not seek an adjournment. He confirmed his brothers’ international travels, and that his younger brother had applied for and been refused a Student visa. The Review pointed out that his older brother’s travel to Hong Kong and China was indeed in the past, when his brother was only 18 or 19 years old, and for this reason he would not have considered it relevant to his current circumstances. He pointed out also that the telephone connection to Pakistan was poor, and that his younger brother was not used to talking through an interpreter, and for these reasons was confused.

25. The Tribunal accepted the review applicant’s explanations regarding inconsistencies in the oral evidence provided, and regarding the hesitancy and confusion of his younger brother. The Tribunal acknowledges the review applicant’s undertakings in his written submissions and at hearing to ensure compliance with the visa conditions, and his offer to post a bond if required. The Tribunal found the review applicant open and forthcoming at hearing, and accepted the testimony of his witnesses, in statutory declaration and at hearing, that he is recognised as hardworking, honest and trustworthy towards his colleagues, friends and family. The Tribunal nevertheless found the visa applicants to be not forthcoming when asked questions about previous visa applications and international travel, and found this to indicate that they may not be genuine temporary entrants.

26. The Tribunal accepts that the applicants have secure employment from which they have been granted annual recreational leave. The Tribunal however does not find the visa applicants’ employment to be significant incentives for their return, for the reasons that the second-named applicant was prepared to leave his employment in 2017, and both of the visa applicants could earn more in Australia. The Tribunal accepts that the visa applicants have a mother and sisters, and that the first-named visa applicant has a wife and daughter in Pakistan, but notes that the visa applicants have a brother who is settled in Australia. Having considered their circumstances, the Tribunal considers that the visa applicants’ incentives to remain in this country outweigh their incentives to return.

27. For the above reasons the Tribunal is not 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 not met.

    DECISION

28. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Adrienne Millbank
    Member