Ahmed (Migration)

[2019] AATA 2495

Ahmed (Migration) [2019] AATA 2495 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kiran Ahmed

VISA APPLICANT:  Mrs Safia Siddiqah

CASE NUMBER:  1810097

DIBP REFERENCE(S):  BCC2017/4698901

MEMBER:Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:          16 May 2019 at 12:05 pm (QLD time)

DATE OF WRITTEN RECORD:                24 May 2019

PLACE OF DECISION:  Brisbane

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.

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream– visiting family members– genuine temporary stay criterion – genuine intention to stay temporarily – strong incentives to depart Australia–decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 16 May 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant is 63 year-old citizen of Pakistan. She applied for the visa on 9 December 2017. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

4. The delegate refused to grant the visa on the basis that they were not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purposes for which the visa would be granted.

5. The review applicant, the visa applicant's daughter, lodged an application for review with the Tribunal on 11 April 2018.

6. The review applicant appeared before the Tribunal on 16 May 2019 to give evidence and present arguments. The Tribunal also heard evidence from the review applicant's husband, Mr Ahmed, and from the visa applicant by telephone from Pakistan. The Tribunal was assisted by an interpreter in the English and Urdu language.

7. For the following reasons, as the Tribunal has already noted, the Tribunal has concluded that the matter should be remitted for reconsideration.

8. Turning briefly to the law, cl.600.211 of Schedule 2 to the Migration Regulations requires that a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which a visa is granted.

9. Clause 600.221 and cl.600.222 set out the purposes for which a visa in the Tourist stream may be granted and those purposes include the stated purposes in the visa applicant's visa application, being ‘for a family visit’.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated purpose, cl.600.211(a) requires consideration of whether he or she has complied substantially with the conditions of the last substantive visa held or any subsequent bridging visa.

11.  It is not in dispute that the visa applicant has not previously travelled to Australia such that there is no evidence of non-compliance with any previously held visas in Australia.

12. Clause 600.211(b) also requires consideration of whether a visa applicant intends to comply with the conditions to which a Subclass 600 visa would be subject. The mandatory conditions to which a visa in the circumstances of this case would be subject are condition 8101, which requires that a visa applicant must not work in Australia; and condition 8201, which requires that a visa applicant must not study or train for more than three months in Australia.

13.  The Tribunal notes that the visa applicant is 63 years of age and has never worked for remuneration in her life and that her duties throughout her life have been to care for and look after her family, including her husband and children. Given the visa applicant's age and her previous life circumstances, the Tribunal accepts that the visa applicant does not and would not intend to work, study or train in Australia and would comply with those conditions.

14. Clause 600.211(c) requires that consideration also be given to any other relevant matters.

15.  Department policy states that relevant consideration of any other matter may include, but is not limited to:

·Personal circumstances

·Credibility

·Purpose and period of stay

·Previous immigration/travel history

·Intel reports and profile. 

Personal circumstances
Namely: 

·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:

o   ongoing employment

o   the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia

o   property, or other significant assets, owned in their home country and

o   whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance 

and 

·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:

o   economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia

o   economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.

o   the applicant’s personal ties to Australia, that is:

• does the applicant have more close family members living in Australia than in their home country
• is the applicant subject of adoption proceedings that have not been resolved in their home country

o   military service commitments

o   civil disruption, including war, lawlessness or political upheaval in the applicant’s home country. 

Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.

Credibility
The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).

Purpose and period of stay
Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).

Previous immigration/travel history
Previous immigration and travel history, such as: 

·previous visa applications for Australia

·previous overseas travel, that is, has the applicant travelled to countries other than Australia. 

In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

Intel reports and profiles

Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country. (Note: Even though they are still mentioned on various visitor visa application forms, Modified Non Return Rate (MNRR) statistics should not be used because no quarterly MNRR report has been published on the department’s website since June 2013.)

Officers may request further evidence from the applicant, if considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant’s home country: 

·staying in Australia beyond the stay period of their visa or

·having their visa cancelled or

·being refused entry to Australia or

·making asylum claims or applying for a protection visa. 

Note: The mere fact that an applicant matches the characteristics of a profile is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant’s circumstances might be required. All applications must be considered on their own merits taking into account all the information and supporting documentation provided by the applicant.

16.  The Tribunal is not bound by Departmental policy but will have regard to policy as a relevant consideration, if that policy is not inconsistent with the legislation and regulations.

17.  The policy canvasses factors including such things as a visa applicant's personal circumstances, including their incentives or personal ties to their home country as opposed to their personal ties or incentives in Australia, that might encourage a stay beyond a temporary stay in Australia, and other things like previous immigration, travel history and the purpose of the period of stay. It is not necessary for the purpose of these Reasons to go into detail as to all of these considerations, however, the Tribunal has had regard to the factors suggested by policy together with other relevant matters as discussed with the visa applicant and the witnesses at hearing.

18.  The Tribunal notes that the review applicant is the youngest child of the visa applicant and her husband. The Tribunal accepts that there are three other children in the family, being one daughter living in the United Kingdom, another daughter living in Ireland, and another son living in Germany. The Tribunal further accepts that the visa applicant's husband is approximately 75 years of age and lives and works in Pakistan and is an accountant by profession.

19.  The Tribunal accepts that the visa applicant has previously and recently travelled to Germany to visit her son and at that time also had the opportunity of catching up with her two other daughters who were also visiting Germany. The Tribunal is satisfied, having spoken to the visa applicant, the review applicant and her husband, that the visa applicant wishes to travel to Australia for a period of approximately one month to six weeks, but no longer. The Tribunal accepts that the visa applicant’s preference now, since the time she originally applied for the visa, is to visit shortly after the completion of Ramadan and that she would then like to return home in time to travel to Germany to visit her son and her son's partner for the imminent birth of their child in September/October 2019.

20.  The Tribunal accepts that the visa applicant abided with the conditions of her visa when she travelled to Germany last year, to visit her son in Germany, and returned to her home country. In particular, the Tribunal gives significant weight to the very significant tie that the visa applicant's husband presents in living and working in Pakistan as for being a reason, amongst others, that for the review applicant to return home. The Tribunal accepts that the visa applicant cares for her husband and provides all personal services by way of household and cooking duties and that the visa applicant's husband is not able to attend to those matters himself and is limited only to working outside the home as an accountant.

21.  The Tribunal accepts that when the visa applicant first applied for this visa, arrangements were made for the visa applicant's husband to visit Germany to visit the son in Germany, so that he would not be home in Pakistan looking after himself, and it is not in dispute that he is not capable of attending to household chores by himself without the presence of his wife. The Tribunal further accepts the evidence of the visa applicant and the review applicant that if the visa applicant were now able to come to Australia for a period of four to six weeks, arrangements have been made for other extended family members in Pakistan to look after the visa applicant's husband while she is away.

22.  In this regard, the Tribunal notes that the visa applicant, in addition to her husband, also has a number of other family members present in Pakistan, including her brother, her mother and extended family who also provide an incentive for her to return to Pakistan.

23.  The Tribunal acknowledges the evidence, of both the visa applicant and the review applicant, that the visa applicant would have no reason to fear returning to Pakistan should she visit Australia. The Tribunal also acknowledges the consistent evidence of both the visa applicant and the review applicant, that there have never been any discussions about the visa applicant coming to live in Australia, with both witnesses consistently but separately saying that that just has never been the subject of conversation because the visa applicant's home is in Pakistan and she does not wish to reside anywhere other than there. She simply wishes to have the opportunity to visit her children in their respective new countries of residence as she is able.

24.  The Tribunal also acknowledges the review applicant's awareness that her mother visiting Australia and abiding by the conditions of her visa would be looked upon positively for future visa application applications by both herself and other family members for future visits to Australia. The Tribunal also acknowledges that the review applicant and her husband have a seven year-old daughter, who the visa applicant is eager to visit. The Tribunal notes that the review applicant and her daughter did have the opportunity of visiting Pakistan and the visa applicant in 2018, but that they understandably would like the visa applicant to be able to visit Australia to see them here and to see their circumstances here during a short visit.

25.  The Tribunal also notes that whilst the review applicant fortunately does not continue to hold significant concerns now as to her health, she has had health issues in the last year or two and it is understandable that she would wish the presence of her mother for a short visit and also would wish that her mother see where she lives in Australia.

26. Having had the benefit of hearing from the review applicant in person and from the visa applicant by telephone, the Tribunal accepts that having regard to all matters raised that the visa applicant does genuinely intend to remain temporarily in Australia for the purpose for which the visa is granted and therefore finds that the requirements of cl.600.211 are met. As already stated, the Tribunal has therefore concluded that its decision is to remit the application to the Department for reconsideration with the direction that that cl.600.211 is 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.

Susan Trotter
Member