Baloch (Migration)

[2023] AATA 185

Baloch (Migration) [2023] AATA 185 (1 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shahbaz Hussain Baloch

VISA APPLICANT:  Mr Shahzad Hussain

CASE NUMBER:  2206252

HOME AFFAIRS REFERENCE(S):          BCC2022/323592

MEMBER:Linda Holub

DATE:1 February 2023

PLACE OF DECISION:  Sydney

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 1 February 2023 at 11:26 am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – review applicant’s upcoming wedding – family’s previous compliant visits – business and property in Pakistan – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 27 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 17 February 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 they were not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

5)   The review applicant appeared before the Tribunal on 31 January 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video through the Microsoft Teams application as the review applicant resides in Melbourne and the case was constituted to a Sydney-based Member.

6)    The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

BACKGROUND

8)   The review applicant is the brother of the visa applicant. He was born in 1982.

9)   Department records indicate that he first arrived in Australia in July 2006 as a holder of a Higher Education Sector (subclass 573) visa. In February 2010 he was granted a Temporary Graduate (subclass 485) visa. In February 2013 he was granted a Partner (subclass 820) (temporary) visa. In November 2013 he was granted a Partner (subclass 801) (permanent) visa. He became an Australian citizen by grant in April 2015.

10) The visa applicant was born in Karachi, Pakistan in 1978. He Is a citizen of Pakistan. He has a wife in Pakistan who is not included in the visa application.

11) Department records indicate that the visa applicant has not travelled to Australia before. He provided to the Department a copy of his passport including entry and exit stamps as evidence of international travel.

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 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.

13) In the present case, the visa applicant seeks the visa for the purposes of a family visit for up to six months. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222. In his application, the visa applicant had planned to arrive on 6 May 2022 and depart on 4 November 2022.

14) On 2 October 2022 the review applicant wrote to the Tribunal requesting priority processing for the application under review on the basis of his upcoming wedding to be held on 4 November 2022. In support of the request, he provided a completed but unsigned Notice of Intended Marriage. A tax invoice from Births Deaths and Marriages Victoria showing a paid reservation for a marriage ceremony to be held at the Thomas Hyde Room on 4 November 2022 was also provided. The priority request was not granted.

15) 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)).

16) The visa applicant has not previously travelled to Australia. The review applicant told the Tribunal that he has travelled to Indonesia, Malaysia, Turkey and Azerbaijan. Evidence of his entries as shown in his passport was provided in relation to Indonesia, Malaysia, Turkey and Azerbaijan.

17) The review applicant stated that both of his parents have travelled to Australia and have complied with their visa conditions. He provided their names as shown in their passports and their dates of birth for the Tribunal to confirm this. Departmental records show that the applicants’ mother travelled to Australia on three occasions including in 2017, 2018 and 2019 and his father came to Australia in 2017. On each occasion they entered Australia on Visitor (FA-600) visas and complied with their visa conditions. The father had a further Visitor (FA-600) visa granted to him on 23 April 2018, but he did not subsequently travel.

18) 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(2).

·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.

19) At hearing, the review applicant confirmed his migration history to Australia. He stated he is a merchandise planner for Good Guys which includes undertaking their budgeting and forecasting. He lives in a recently purchased house in Tarneit, Victoria with his second wife. He has a mortgage on the property but no other significant debts. His only other asset is his car.

20) The review applicant stated that the original intended travel dates for the visa applicant changed and that he was very keen for his brother to come to Australia and visit him. He stated that his parents have been here and seen his life in Australia. He stated that he has purchased a new home and that his brother has not yet had an opportunity to visit Australia and so the intention was for them to spend time together and for the visa applicant to get a better understanding of his life here. They also intended to attend games of the Cricket World Cup As and the review applicant was hopeful that the visa applicant could be with him for the registration of his marriage.

21) The visa applicant was married about four years ago. The Tribunal requested a copy of the marriage certificate and the review applicant stated that he could provide this by close of business on Friday 3 February 2023. It was provided to the Tribunal on 1 February 2022 and shows that the marriage took place on 29 August 2019.

22) The Department was provided with evidence of a registered business, ‘KM Property Consultant & Builders (Private) limited’ based in Karachi, Pakistan that lists the visa applicant as a ‘director’ with a 33% shareholding. It states that it was registered on 22 April 2021. The Tribunal was provided with a Board of Revenue, Sindh Face Sheet for a lease agreement listing the visa applicant as a second party in Gulshan Town, Karachi East. The lease agreement was signed in October 2017 and grants the visa applicant lease rights for a period of ninety-nine years.

23) The review applicant told the hearing that his brother is in partnership with his father and a friend of his fathers in a construction company. He stated that his brother oversees the project management of the work undertaken by the company.

24) The Tribunal heard from the review applicant that the incentives for the visa applicant to return to Pakistan at the end of this visit related to his relationship with his wife, his parents and other family members, his partnership in the business as well as the two shops he owns and his land. I questioned the extent to which the ownership of land and the two shops would serve as incentive for his return. The review applicant acknowledged that arrangements could be made for the manner in which the rent is collected from their shops and the visa applicant only has plans to develop and build on the land, and that the land itself may not serve as a significant incentive.

25) The review applicant told me that the visa applicant has no intention of studying, working or undertaking training while he visits Australia. In addition, the Tribunal was told that he has no health issues. The review applicant gave oral evidence that the visa applicant has not had any problems in Pakistan for any reasons to do with his religion, his ethnicity or for any political or security issue that may have arisen.

26) In a statement dated 13 January 2023 (error in date as this was provided prior to 13 January 2023) provided to the Department the review applicant states that all accommodation, expenses, and appropriate visitor’s medical insurance would be covered by the review applicant. The review applicant confirmed this at hearing.

27) The following written evidence provided to the Department and/or the Tribunal was also considered in making my findings:

·    Habib Metro – confirmation of bank account in the name of the visa applicant dated 27 January 2022 and bank statement from 1 July 2021 to 27 January 2022 (printed 27 January 2022)

·    a letter from the Excise and Taxation Department, Motor Registration Wing – evidence of the visa applicant’s car registration dated 22 July 2019.

·    business license registration from the Federal Board of Revenue showing ownership percentages for 2021 tax year dated 10 June 2021, details of the business dated 6 October 2021, and Taxpayer Registration Certificate in the name of the visa applicant, dated 22 April 2021.

·Board of Revenue, Sindh Face Sheet – evidence of a lease agreement signed by the visa applicant.

·further bank statement for the period from 1 July 2021 to 27 January 2022 from the Habib Metropolitan Bank Ltd in the name of the visa applicant.

·the review applicant’s bank statement from 4 February 2022 to 4 April 2022 from his ANZ Access Advantage account and from his ANZ Progress Saver account bank statement from 5 May 2021 to 5 November 2021

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

FINDINGS

29) Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for a period of some months for the purpose of visiting his brother and his wife.

30) The Tribunal accepts that the review applicant intends to fund the visa applicant’s travel although he is able to fund his own travel. The Tribunal accepts he will stay with the review applicant who will cover the cost of the visa applicant’s living expenses.

31) The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia. The Tribunal accepts that the visa applicant’s wife, his family, his property and business interests in Pakistan provide sufficient incentives for him to return to his country of residence at the end of his permitted stay in Australia.  The Tribunal has put positive weight on the visa applicant’s family’s positive migration history. Condition 8503 refers to entitlement and does not require compliance.  The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

32) For the above reasons 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

33) The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets cl 600.211 of Schedule 2 to the Regulations for a Subclass 600 (Visitor) (Class FA) visa:

Linda Holub
Member