Ali (Migration)

[2020] AATA 5679

Ali (Migration) [2020] AATA 5679 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wajid Ali

VISA APPLICANTS:  Mrs Ome Salma
Mr Muhammad Yazdan

CASE NUMBER:  2012669

HOME AFFAIRS REFERENCE(S):          BCC2020/1935421

MEMBER:Justine Clarke

DATE:21 September 2020

PLACE OF DECISION:  Melbourne

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 21 September 2020 at 2:02pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored family stream – visiting Australian husband – compelling circumstances for the visit – terminal stages of cancer diagnosis–urgent need for family support– genuine intention to stay temporarily –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is a combined application for the review of two decisions made by a delegate of the Minister for Immigration on 4 August 2020 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The review applicant is a 32-year-old Australian citizen. The first-named visa applicant is the 32-year-old wife of the review applicant. The second-named visa applicant is the couple’s six-year-old son. Both visa applicants are nationals of Pakistan.

3. On 21 July 2020, the visa applicants applied for the visas. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The visa applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

4. 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 a visa applicant to satisfy the Minister that they genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant provided the Tribunal with copies of the two refusal decisions. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the visa applicants genuinely intended to stay temporarily for the purpose for which the visas would be granted.

6. On 10 August 2020, the review applicant applied to the Tribunal for the review of the two refusal decisions. The review applicant was represented in relation to the review by his registered migration agent.

7. On 11 August 2020, the representative requested that the review be given priority processing due to the compelling reasons said to exist with the matter, namely that the review applicant has a high grade and incurable brain cancer, his health is deteriorating and the prognosis is that he has less than six months to live.[1] The application for priority processing included a letter from a named doctor at the Peter MacCallum Cancer Centre, which the representative noted had also been provided to the Department in early July 2020—that is, prior to the refusal decisions having been made.

   [1]        At the time of this decision, the prognosis is less than three months.

8. On 20 August 2020, the Tribunal decided to give priority to the application for review.

9. On 16 September 2020, the matter was constituted to the Member presiding in this review.

10. The Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file, including submissions filed on 18 September 2020 and a ‘to whom it may concern’ letter dated 16 September 2020 from the review applicant’s treating medical oncologist at Peter MacCallum Cancer Centre in Melbourne—that is, a second letter. Pursuant to s.360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicant’s favour based on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. The visa applicants seek the visas for the purposes of visiting the review applicant, who as was explained earlier, is their husband and father respectively. It was submitted that the visa applicants wish to travel to Australia ‘for a short period of time to spend time and provide care to Wajid, whom they love very much’. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

    Clause 600.211(a)

14. 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).

15. In this case, neither of the visa applicants has travelled to Australia previously. Indeed, the evidence is that neither has travelled from Pakistan previously. In the circumstances, the Tribunal makes no findings with respect to the visa applicants’ previous compliance with immigration conditions. The fact that neither visa applicant has travelled from Pakistan previously is not a reason for the Tribunal to affirm either of the decisions under review.

    Clause 600.211(b)

16. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visa would be subject: cl.600.211(b).

17. 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 three months;

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia; and

    ·8531 – must not remain in Australia after end of permitted stay.

18. There is no evidence before the Tribunal to suggest that it is the intention of either visa applicant not to comply with the conditions to which their visas would be subject. Rather, to the contrary, the evidence before the Tribunal suggests that they do intend to comply.

19. With respect to condition 8101, there is no evidence to suggest that the first-named visa applicant intends work in Australia. In her application for the visa, the first-named visa applicant declared that she was not employed in Pakistan but rather she undertook ‘home duties’, including caring for her young son.

20. With respect to condition 8201, there is no evidence to suggest that the first-named visa applicant intends to engage in study or training in Australia for more than 3 months. In her application for the visa, when asked whether she will undertake a course of study in Australia, the first-named visa applicant replied in the negative. When she was asked specifically in the form for the visa whether she agreed not to undertake study or training for more than three months, she declared ‘yes’.

21. With respect to condition 8503, there is no evidence to suggest that the first-named visa applicant intends to stay in Australia beyond the term of the visa. In her application for the visa, when asked whether she understood that condition 8503, where it is imposed on a visa, limits the ability of a visa applicant to remain in Australia beyond the authorised period of stay of the visa, the first-named visa applicant replied in the affirmative.

22. With respect to condition 8531, there is no evidence to suggest that the first-named visa applicant intends to remain in Australia after the end of the permitted stay. When she was asked specifically in her application for the visa whether she agreed to leave Australia on or before the expiry of the period of stay of the visa, the first-named visa applicant declared ‘yes’.

23. The Tribunal has no reason to doubt the first-named visa applicant’s credibility.

24. In the primary decision for the second-named visa applicant, the delegate stated:

    As a dependent minor the applicant is unable to form an intention to comply with his visa conditions on his own, however I consider him to be influenced by the intentions of his relative.

25. The Tribunal takes a similar approach in this review.

26. The Tribunal considers that the evidence before it weighs in favour of the visa applicants both having a genuine intention to visit Australia temporarily.

    Clause 600.211(c)

27. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

28. In the primary decision with respect to the first-named visa applicant, the delegate considered that the compelling circumstances for the visit, as evidenced by a letter from Peter MacCallum Cancer Centre, did not demonstrate that the first-named visa applicant intended a genuine visit. The delegate noted that the first-named visa applicant has family members—namely, her parents and siblings—who would remain in Pakistan for the duration of her proposed visit to Australia but, notwithstanding, the delegate expressed the view that these family ties were outweighed by the fact that her ill husband was in Australia. Accordingly, the delegate gave limited weight to the first-named visa applicant’s family ties in Pakistan as an incentive for her to return to Pakistan, finding that the presence of her ill husband in Australia may act as an incentive for her to remain in Australia beyond the validity of her visa. In addition, the delegate was concerned that ‘the current instability in Khyber-Pakhtunkhwa Province’ may act as a disincentive for the first-named visa applicant to return to Pakistan within the validity of the visa.

29. The written submissions filed on 18 September 2020 submitted the following.

    As outlined within statements and submissions to the Department, Ome and Muhammad wish to travel to Australia to spend time with Wajid who has been diagnosed with a high-grade incurable brain cancer. The updated enclosed letter from Dr Jim Whittle, sadly Wajid is entering the terminal stages of his cancer diagnosis and there is an urgent need for family support. The letter notes ‘While Wajid recently underwent systemic therapy with the intent to delay progression and maintain his quality of life, there has been no evidence of treatment response and therefore his prognosis is short[;] an estimate is less than 3 months’. Wajid would like to spend time with his family in his last few months. He also needs their support at this harrowing time.

    It is apparent that Ome and Muhammad do not wish to come to Australia indefinitely rather wish to come to Australia for a short period of time to spend time with Wajid during this extremely difficult time. Due to his health, Wajid is unable to travel to Pakistan to visit his family. Ome resides with Wajid’s parents in Pakistan. She provides them with care and support. She also lives close by to her own parents and siblings. She has resided her entire life in Pakistan. Pakistan is her home and she fully intends to return to Pakistan to be with her extended family after spending a short period of time in Australia with her husband. With respect, we submit that given the sad situation faced by Wajid, it is plausible Ome would want to return to her family to obtain their support after her visit. Understandably, Wajid and Ome want Muhammad to be able to say goodbye to his father. Muhammad is only six years old. He speaks to his father regularly by phone, however, he would like the opportunity to visit him in Australia. Given these matters, it is apparent that the purpose of the trip and period of stay suggests Ome and Muhammad intend to come to Australia as genuine visitors.

    We note that the primary decision maker contended that the insecure security situation in Ome and Muhammad’s home area may provide an incentive from them to overstay in Australia. With respect, we submit the fact Wajid has returned to Pakistan three times suggests that he was not deterred by the security situation. 

    [Emphasis in original]

30. The Tribunal accepts the validity of these submissions. The Tribunal gives great weight to the fact that the review applicant has a life expectancy of less than three months, that the visa applicants wish to spend time with him while they can and that there are strong incentives for them to return to Pakistan after the period of the permitted stay, notably that Pakistan is the home and life that they know and where their extended family resides. While the instability in Khyber-Pakhtunkhwa Province may act as a disincentive for the visa applicants to return there, the Tribunal considers that this concern is outweighed by the other aspects of this case, particularly the fact that this is where their extended family lives and that these extended family members are the people who they are likely to wish to seek comfort and support from after their stay in Australia. 

31. In view of the evidence before the Tribunal, the Tribunal considers that the evidence weighs in favour of the visa applicants having a genuine intention to visit Australia temporarily.

    CONCLUSION

32. After considering all the evidence before the Tribunal, including the visa applicants’ personal circumstances, including the information about the review applicant’s serious health condition which is deteriorating and for which it is expected that he will die in less than three months, the Tribunal considers that, on balance, the presence of the visa applicants’ extended family in Pakistan is a greater incentive for them to return there than for them to remain in Australia. Overall, having regard to the specific circumstances of this case, the Tribunal does not share the delegate’s concerns about the visa applicants not meeting cl.600.211.      

33. 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 visas would be granted and finds that the requirements of cl.600.211 are met.

34. The Tribunal notes that the written submissions address specifically the other criteria for the grant of the visas. Given the circumstances in which the review applicant’s prognosis is less than three months, any efforts the Department of Home Affairs may make in expediting this case would be appreciated.

    DECISION

35. 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.

    Justine Clarke
    Member