Basir (Migration)

[2021] AATA 410

Basir (Migration) [2021] AATA 410 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdul Basir

VISA APPLICANT:  Mrs Anika Gul Jabeen

CASE NUMBER:  1900704

HOME AFFAIRS REFERENCE(S):          BCC2018/5151194

MEMBER:Meredith Jackson

DATE:16 February 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 16 February 2021 at 8:32am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – past compliance with visa conditions – intention to comply with visa conditions – potential to overstay – failure to declare all previous visa refusals – incentives to return to home country – decision under review affirmed

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 Home Affairs on 20 December 2018 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 19 November 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 Sponsored Family 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 the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 11 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Pakistan) and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. 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)).

10. 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 600.612):

    ·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.

    The delegate’s decision

11. The delegate’s reasons for the visa refusal recorded in the primary decision, in broad summary, are:

    a.Experience has shown that some people who apply for a visitor visa intend to use visitor entry to remain in Australia beyond the period of time allowed;

    b.The visa applicant has worked as a staff nurse at Fazle Omar Hospital in Pakistan since 1997 but this of itself does not demonstrate that the applicant plans a genuine temporary stay;

    c.Family guarantees are not generally sufficient evidence of a genuine temporary stay intention;

    d.Bank funds in Pakistan that the applicant holds could be accessed from Australia;

    e.The applicant provided no evidence of property, assets or business ties to Pakistan;

    f.Family inducements to return to Pakistan do exists but are limited;

    g.The applicant has no overseas travel record that may be assessed;

    h.The applicant was refused visas in February 2008, October 2008, March 2009 and June 2012 and little in her personal circumstances has since changed.

    Written and oral evidence considered

12. The Tribunal has considered the delegate’s decision provided by the applicant; the Department and Tribunal files relevant to the case; written submissions provided by the applicant on 3 February 2021, being a bank statement for the visa applicant’s account in Pakistan; two employment confirmation letters; review applicant’s ANZ bank statement; and a personal statement of 5 January 2019 responding to the delegate’s reasons.

    The hearing

13. The review applicant claims the applicant intends to comply with the conditions of the visa. He stated at the hearing:

    a.His sister, the visa applicant, is married with three children and has worked as a staff nurse in the operation theatre since 1997. She also has a part-time job as a visiting staff nurse in an eye clinic, as a theatre assistant.

    b.The review applicant works as a process worker in parts manufacturing. His income is AUD 754 weekly.

    c.His sister wants to visit Australia for 2-3 months, not more, because she is working in Pakistan. She has accrued enough leave to do so because she has been working at the hospital for a long time.

    d.Since his brother passed away the review applicant has felt depressed and lonely and wants someone from home to visit him. He has travelled to Pakistan since arriving, the last time in 2016; in total 3-4 times in 22 years.

    e.The review applicant became an Australian citizen in 2020. His situation in Pakistan was not good, people used to trouble him a lot. He was granted protection while still offshore. It is different for his sister, she lives in a different place, has a good job and is well settled.

    f.His sister applied for visas in 2008, 2009, 2012 and in 2018, but every time her application is refused for different reasons, and yet colleagues have their family visiting them. He feels very alone. His brother was refused a visa and then passed away, which was very sad. Asked by the Tribunal why his sister had not declared the first three refusals in her visa application, he stated his sister had probably answered in a short form about the most recent refusal.

    g.His sister will definitely comply with visa conditions, she has a good job, her children are studying in Pakistan and she will fulfil all conditions of the visa. His sister and her family are very well settled, she will not come here and start her life from the beginning. She is a top nurse. He asked her to come and visit, she is just coming here because of his health.

    h.His sister has not travelled anywhere else because she is really only coming to see her brother in Australia. She has never had a chance to travel, he is the only one overseas, even from her husband’s side, everyone else is in the country; both sides of the family. There is nothing else for his sister in Australia.

    i.His sister does not own property in her own right in Pakistan, her husband owns a rental property in another city from which they earn rent, and the family home is provided by the hospital. His sister, husband and children live in the house and it is part of her salary and conditions; this is a common arrangement in Pakistan. He will provide supporting evidence of the arrangement by Monday 15 February 2021.

    j.In Australia, the visa applicant will stay in his home and he will take care of everything.

    Analysis and conclusions

    Immigration history

14. With regard to the visa applicant’s intention to stay temporarily in Australia, the Tribunal has considered whether there is evidence the applicant has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)). Departmental records indicate the visa applicant has not held an Australian visa. The review applicant claims she has not travelled outside her home country of Pakistan. There is therefore no information before the Tribunal regarding past compliance with visa conditions in Australia or in any other developed country, Accordingly, this consideration is afforded no weight.

15. The Tribunal must also have regard to whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)).

16. In reaching a view, the Tribunal has carefully examined all the evidence before it, including the 12-year history of the applicant’s applications for Visitor visas. The review applicant gave evidence in the hearing and in written submissions that his sister had been refused visitor visas for Australia on four occasions, twice in 2008, once in 2009 and once in 2012, before the refusal decision under review. The Tribunal asked why the visa applicant had only declared her 2012 refusal in her visa application, when she had been refused four visas. The review applicant responded that she probably only thought to answer in the short form, about the most recent refusal.

17. A key finding of the primary decision is that since the time the visa applicant first began applying for the visas, her circumstances have not changed markedly, therefore have not changed sufficiently to justify the grant of a visa. The Tribunal has had the benefit of hearing first-hand from the applicant’s sponsor, the review applicant, on this aspect of the case. He claimed at the hearing that the visa applicant’s close family circumstances in Pakistan are a strong incentive for his sister to return Pakistan after a visit to Australia. He argued that she has held a permanent job as a nurse since 1997 at a prestigious hospital; that the job comes with a family home; she has three children studying; and her husband works full-time. In addition, all members on both sides of her family are in Pakistan, so she has many more reasons to return to Pakistan and continue living her family life than she would have to move to Australia to “start life again” in a new country. The Tribunal has considered this information, and the relevance of the the applicant having sought for years to travel to Australia without other members of her family (save one application lodged for her then two year old daughter to accompany her), and is not fully persuaded that the balance is entirely as the review applicant depicts it, because there are many reasons why individuals leave their home country to start a new and more rewarding life and they often succeed at it. To provide further support for his arguments, the review applicant sought extra time until Monday 15 February to provide documentary evidence that the rental property is provided by the applicant’s employer. On 13 February 2021, the applicant provided a letter from the applicant’s employer, Fazle Omar Hospital, stating that as a staff nurse in the operation theatre she is drawing an annual salary of PKR 448,560 (approximately AUD3,620) and is entitled to free medical treatment and accommodation, in her case, a three bedroom house. The review applicant stated that the visa applicant’s three children are at the following education stages: Taruf Ahmad is studying chartered certified accountant; Bareera Nudrat has just finished Year 12 examinations; and Sadia Ifat is currently studying in grade eight.  The Tribunal has taken this information into account in weighing the evidence in the case.

18. In terms of potential to overstay, the Tribunal is concerned that the visa applicant may be seeking to come to Australia as a visitor, but once onshore, may decide to stay longer than her visa allows, in order to improve her circumstances or that of family members, escape certain circumstances in Pakistan or seek a new or enhanced life for herself and eventually, her family. While here, she may see opportunities for herself professionally and perhaps study opportunities for others in the family, or she may seek to stay long-term through her own study, employment or some other viable means. The Tribunal put these concerns to the review applicant in the hearing, noting that the visa applicant is skilled, a senior nurse, and could look to apply her professional background in Australia where economic rewards are considerably greater than in Pakistan. The review applicant claimed this is not the case, she is only coming here because of his health. The Tribunal has taken into account the review applicant’s arguments that the upheaval such a move would cause to all the people in the visa applicant’s life, including her husband and three student-age children, would be too great. The Tribunal has considered this in the light of its concerns, and concludes that, on balance, the visa applicant’s circumstances as described are not, of themselves, sufficiently compelling to guarantee the applicant will return Pakistan after a brief visit.

19. The Tribunal has considered that the visa applicant does not own property or business assets in her own right in Pakistan, because her husband (as the family head) owns such assets, including a house from which the family draws rental income. The Tribunal accepts that this is a common arrangement in her country but notes that her qualifications and employment record indicate she is well positioned to support herself, and potentially her family, in other contexts, including in Australia.

20. The review applicant argues that his sister’s absence of travel history supports his claims that she is a settled resident of her own country who has a job and a family in place and only wants to come and see her brother, because he is depressed in Australia “by himself”. The Tribunal accepts that the review applicant is sad about his separation from family, however it notes the review applicant has provided no evidence of clinical depression. The Tribunal also acknowledges his claims to feel like an “outlier” among his other friends from overseas, in that as an Australian citizen, he has never shown any member of his family his new home; and he was unable to do that for his brother before he passed away. He claims he is now facing the possibility that his sister will be refused another visa and he does not know why. The Tribunal has considered this aspect of his claims but has no evidence before it that his sister’s application is not being considered solely within the requirements of Australia’s immigration program.

    Other relevant matters

    The Tribunal has considered whether there are other relevant matters (cl 600.211(c)) and is aware of no issues that have not been considered above.

    Overall conclusion

21. Having considered the above factors individually and as a whole, the Tribunal concludes that the visa applicant may not substantially comply with the conditions of her visa, in that she may seek to extend her stay in Australia beyond the period of permitted stay. While the Tribunal acknowledges that it may be reasonable in some cases for a visa applicant to apply offshore for five visas over 12 years, the Tribunal is mindful that this visa applicant did not declare, in her application for the visa under review, that she had been refused four times previously. She declared only one refusal, that in 2012.  The significance of this is that it the omission is capable of concealing the level of determination the visa applicant appears to have to enter Australia. The review applicant emphasises the visa applicant’s settled state in Pakistan and that of her family as reasons she will not overstay. The Tribunal notes the argument, but considers she is a qualified, hard-working and experienced senior nurse who on the evidence, is more than capable of upgrading her lifestyle in a developed country. She may be tempted to seek permanency for herself and potentially, her family in Australia, where opportunities for educated people such as she and her children are considerable.  In light of this real possibility, and having weighed the visa applicant’s actions over time, the Tribunal is not satisfied the visa applicant intends a genuine temporary stay, and accordingly, the Tribunal is not satisfied the visa applicant intends to comply with the conditions to which the Subclass 600 visa is subject (cl 600.211(b)).

22. The Tribunal has also considered all other relevant matters as required by cl. 600.211(c) as makes no additional findings.

23. For the reasons above, the Tribunal is not satisfied cl 600.211 is met.

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Meredith Jackson
    Member