Barukzai (Migration)

[2019] AATA 5391

Barukzai (Migration) [2019] AATA 5391 (5 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdullah Barukzai

VISA APPLICANT:  Mrs Nafas Jan Barukzai

CASE NUMBER:  1828643

HOME AFFAIRS REFERENCE(S):          BCC2018/3000947

MEMBER:Margie Bourke

DATE:5 September 2019

PLACE OF DECISION:  Melbourne

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 05 September 2019 at 9:26am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting son and helping daughter-in-law with her first baby – incentive to return to home country – strong personal ties to home country – commitment to family in Afghanistan – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 11 September 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 applied for the visa on 9 August 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.

3. 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.

4. 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 visa applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 2 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

6. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her son, and helping her daughter-in-law with her first baby. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).

11. The evidence before me is that the visa applicant has never travelled to Australia previously, so there is no evidence in relation to the visa applicant’s previous compliance with Australian visas.

12. 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.

13. I accept the evidence before me that the visa applicant lives in Kabul with her husband, and two of her sons live in the same building with their wives and children. I accept another married son also lives in the building but he travels to Turkey for study.  I accept based on the evidence before me that one of the visa applicant’s daughters is married with one child, and lives with her husband’s family in Afghanistan.  I am satisfied that the visa applicant intends to return to Afghanistan before the expiration of the visa because that is where her husband is, where some of her children and grandchildren live, and where her sense of connection and community are.

14. I am satisfied that the visa applicant has three married daughters with children who reside overseas, two in America and one in Germany.  I accept that with these three daughters the visa applicant has a total of ten grandchildren, and she has met them all because they travel to Afghanistan to visit the visa applicant and the other family members.  I am satisfied the review applicant has resided in Australia for approximately twenty years and has returned to Afghanistan five times to visit his family, including in 2019.

15. I accept that the visa applicant wishes to travel to Australia to visit the review applicant, his wife and new baby at this time motivated by interests of family.  I accept the review applicant’s wife does not have visa status to obtain a passport to travel, and the review applicant and his wife do not have relatives in Australia to support them with the arrival of their baby. I am satisfied the visa applicant wishes to meet her grandson, and provide support in any way it is needed to her son and daughter-in-law.

16. I am satisfied that the visa applicant, due to her age and circumstances in life, does not intend to work, study or train in Australia. I am satisfied that the visa applicant does not intend to remain in Australia on a long term basis, but intends to return to her husband and family in Kabul before the expiration of the visa. I accept that the visa applicant genuinely intends to comply with the conditions of her visa.

17. The visa applicant stated that she had concerns about the political unrest in Kabul.  She stated that she will return to Kabul because her husband lives there. I accept her evidence in relation to her concerns and her intention to return. The review applicant stated that there had been civil disruption and economic disruption in Afghanistan for the twenty years that he had resided in Australia, and his mother had never sought to travel to Australia until he had a child in 2018.  I give weight to the review applicant’s submission that his mother is motivated to come to Australia because of her commitment to family.  I also accept that it is her commitment to family that is the basis of the visa applicant’s genuine intention to return to Afghanistan to be with her husband and the children and grandchildren who live there.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)). Based on the oral evidence and the stamps in the visa applicant’s passport, I am satisfied that in 2017 she travelled to Saudi Arabia to participate in the Hajj pilgrimage.  There is no evidence that the visa applicant did not comply with the conditions of her visa in 2017. I give this weight as in indication the visa applicant has been historically compliant with visa conditions, and has returned to Afghanistan when she has departed that country.

19. 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

20. 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.

    Margie Bourke
    Member