Buttar (Migration)

[2021] AATA 5151

Buttar (Migration) [2021] AATA 5151 (23 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Rizwan Ahmad Buttar

VISA APPLICANT:  Mr Muhammad Asif

CASE NUMBER:  2006083

HOME AFFAIRS REFERENCE(S):          BCC2019/6211728

MEMBER:Steven Griffiths

DATE:23 November 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 visa:

·cl.870.226 of Schedule 2 to the Regulations

Statement made on 23 November 2021 at 9:11am

CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – genuine temporary entrant – school-aged children, property and business interests in home country – separate travel by applicant and spouse in order to attend to children and interests – older child living in third country – effect of non-compliance in Australia on visa applications for other countries – decision without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 870.226

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the applicant a Sponsored Parent (Temporary) (Class GH) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 23 November 2019. The delegate refused to grant the visa on 6 March 2020.

2. The delegate made the decision on the basis that sufficient evidence of the intention of the applicant to be a temporary visitor to Australia, so as to satisfy a criterion for the grant of the visa required under cl 870.226 of the Migration Regulations 1994 (the Regulations), was not provided.

3. Visa applicant Mr. Asif was born in Pakistan in 1962 and has 2 sons and 3 daughters from his first marriage and with his second wife, born in 1979, who he married on 24/10/99 and is a separate visa applicant, has 3 daughters and a son, born 2001, 2003, 2004 & 2005.

4. Sponsor Mr. Buttar was born in Pakistan in 1985. He married on 16/9/12 and has 2 sons, born 05/2016 & 08/2017. He arrived in Australia on 10/6/14, having been granted a Partner 309 Visa on 12/5/14 and a Partner 100 Visa on 9/12/15.

5. The Tribunal has noted that within the visa application was a Government of Pakistan, Ministry of Interior, Family Registration Certificate dated 5/6/14 confirming the applicant, with his first wife, have 2 sons and 3 daughters, born [1985], [1989], [1991], [1994] & [1995], with the sponsor being the oldest child, with 3 of his 4 full siblings live in Pakistan.

6. The Tribunal has noted that within the visa application was a Government of Pakistan, Ministry of Interior, Family Registration Certificate dated 5/6/14 confirming the applicant, and his wife who is the subject of a similar visa application, have three daughters and a son, born [2001], [2003], [2004] and [2005], with these children living at home and undertaking their education needs and are not part of the visa application.

7. Following the lodgement of the review application with the Tribunal on 25/3/20, the following information has been received :-

   Sponsor submission requesting priority consideration, 27/12/20

   Sponsor submission requesting priority consideration, 25/7/21

   Sponsor submission, 17/11/21

   Applicant Asif submission, 17/11/21

   Documents confirming the current education locations and study levels of the 4 youngest children of the applicant and his wife

   Documents confirming property owned by the applicant and his wife in Pakistan

   Documents confirming the valuation of property owned by the applicant and his wife in Pakistan

   Documents with details of transactions for business owned by the applicant and his wife in Pakistan,  2020 & 2021

8. The Tribunal accepts that the submissions of the applicant and his wife detailing that they have property and business interests in Pakistan that require them to provide local management efforts.

9. The Tribunal accepts that the submission of the applicant of 17 November 2021 details that he has an older daughter living in the United Kingdom that he visits and is not going to do anything that impacts on his ability to gain access visas to other countries.

10. The Tribunal accepts that the submission of the applicant on 17 November 2021 details that he and his wife have resolved to travel individually to Australia so that one of them remain in Pakistan to manage the needs of their children, their business activities and other older relative matters.

11. The Tribunal determines that this commitment by the visa applicant of he and his wife to travel to Australia at different times is a critical issue in the review decision of if the applicant is to be a genuine temporary entrant to Australia.

12. The Tribunal determines that with the 4 children of the visa applicant and his wife remaining in Pakistan to continue their education this is a critical issue in the review decision of if the applicant is a genuine temporary entrant to Australia.

13. The Tribunal accepts the submission of the sponsor dated 17 November 2021 confirming the intention of his parents in visiting Australia is to allow them to be with he, his wife and their two children, who are the grandchildren of the applicants, for special occasions and that as one of the children of the sponsor has health issues, including asthma, it is not possible for the sponsor and family to travel to Pakistan.

14. In light of the new evidence received, the Tribunal is satisfied that the applicant is seeking to be a genuine temporary entrant of Australia, with the criterion met and has concluded that the matter should be remitted for reconsideration.

15. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

    DECISION

16. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 visa:

    ·cl.870.226 of Schedule 2 to the Regulations

    Steven Griffiths
    Member