Arif (Migration)

[2019] AATA 1909

Arif (Migration) [2019] AATA 1909 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Omer Arif

VISA APPLICANT:  Mr Muhammad Ali

CASE NUMBER:  1816645

HOME AFFAIRS REFERENCE(S):           BCC2018/1974066

MEMBER:Adrienne Millbank

DATE:2 April 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.

Statement made on 02 April 2019 at 4:20pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuinely intends to stay temporarily in Australia – visa to visit brother – incentives to return home – family – business – evidence of financial capacity provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, conditions 8101, 8201

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 applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a 39 year old citizen of Pakistan who applied to come to Australia with his wife and three children during their school holidays for a period of three to four weeks, from 5 June 2018 to 30 June 2018, for the purpose of visiting his brother, the review applicant, in Queensland, and celebrating Eid in a family gathering at a time when his and his brother’s parents were in Australia on Visitor visas.

3. The visa applicant applied for the visa on 7 May 2018. 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.

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 the visa applicant to satisfy the Minister that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. 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 intended to stay temporarily in Australia for the purpose of visiting his brother.  The Delegate noted that the applicant had provided a business account statement with a healthy balance of PKR 8.8 million as at 23 April 2018, but with the business, not the applicant as signatory, and no evidence verifying the overall health or viability of the business or income he may earn. The Delegate further noted that the applicant had provided a credit card statement showing an available credit limit of PKR 400,000, but considered this represented only an available credit that would be available regardless of his geographical location. The Delegate was not satisfied these details alone indicated sufficient incentive to return, given the comparatively greater economic opportunities in Australia.

6. The Delegate further noted that the majority of the visa applicant’s family would have travelled with him and he had relatives in Australia, which might have provided the visa applicant with an incentive to remain in Australia not outweighed by other family ties in Pakistan.

7. On 17 September 2018 the review applicant wrote to the Tribunal advising that his brother now intended to come alone. He stated that his niece and nephews’ holidays were ‘long gone’, and after the refusal of the visa application his brother took his family to Turkey for a holiday instead. Evidence was provided of the visa applicant’s family holiday in Turkey. The review applicant stated in his letter that it was ‘no longer possible’ for his brother to come to Australia with his family ‘this year’, but that he still wanted him to come by himself ‘for a few days’. He concluded that he was still looking forward to his brother visiting him in Australia, and fully vouched that his brother would comply with his Visitor visa conditions. 

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

   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 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting his younger brother, an Australian permanent resident. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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. The visa applicant has not previously travelled to Australia.

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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

14. There is no information before the Tribunal to indicate that the visa applicant intends to work in Australia, or to engage in study or training for more than three months.

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

16. Evidence was provided that the visa applicant has travelled widely and often since 2010, with his family for tourism/holiday purposes; and for business, including to Malaysia, Turkey, the UAE, France, China, Spain, Germany.

17. The visa applicant and the review applicant provided evidence to the Tribunal which addressed the Delegate’s concerns and reasons for refusing the visa.  The visa applicant provided a written submission, dated 6 June 2018, advising that he had planned to bring his children during their school holidays for a family gathering when their grandparents were in Australia; that they go to school in Pakistan and ‘all our roots are here and there is no reason for us to just leave all of it and move to Australia’. He advised in this letter that he was prepared to post a bond to the amount of AUD 50,000. As noted, the review applicant advised on 17 September 2018 that the visa applicant now intended to come alone.

18. Further evidence was provided to the Tribunal including a letter signed on 23 April 2018 by the a Branch Manager of the visa applicant’s bank in Pakistan, certifying that the visa applicant is the authorised signatory of the business account with the balance of PKR 8.8 million as at 23 April 2018, and that ‘the conduct of the account is satisfactory’. The visa applicant stated in his submission that he is the sole owner/proprietor of this company and that he has run his own business since 2001. An income tax return statement was provided showing the visa applicant received a gross income in financial year 2016 - 2017 of PKR 75,877,817, on which he paid PKR 4,552,669 tax.

19. On the evidence provided, the Tribunal accepts that the visa applicant has significant incentives to return to Pakistan.

20. Having considered the circumstances and the further evidence, 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

21. 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.

    Adrienne Millbank
    Member