DAUD (Migration)

[2021] AATA 2480

DAUD (Migration) [2021] AATA 2480 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs SALEHA DAUD

VISA APPLICANT:  Mrs MAHREEN DAWOOD

CASE NUMBER:  1907675

HOME AFFAIRS REFERENCE(S):          BCC2018/4976978

MEMBER:Stephen Conwell

DATE:2 July 2021

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 02 July 2021 at 1:25pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – member of persecuted minority – family members in Australia and their immigration history – applicant’s recent completion of qualification and husband’s new job in third country – applicant pregnant but would leave baby with parents if she gives birth before visa granted – no details about department’s concern with family’s immigration history – compliant travel by another family member – comply with no-work condition – applicant’s husband’s and sponsor and husband’s financial security – COVID-19 travel restrictions – decision without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)
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 7 March 2019 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 20 December 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 (applicant) did not meet cl.600.211 because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia.  In denying the visa application the delegate expressed concern regarding the applicant’s incentives to depart Australia upon the end of the proposed visit since the applicant is a member of the minority persecuted community in Pakistan and some applicants from a similar background who have arrived in Australia on temporary visas have attempted to change their status during their stay. Therefore the delegate held concerns that this applicant’s membership of this minority community may act as a disincentive for her to depart Australia in accordance with the terms of the visa. Concern was also expressed regarding the applicant’s “family links in Australia and the circumstances regarding their past Immigration history.”

5. The review applicant (sponsor) was represented in relation to the review by her registered migration agent (representative). The sponsor provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. The Tribunal is in receipt of more information than was available to the delegate. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, 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) of the Act.

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 applicant seeks the visa for the purposes of visiting her sister (who is the sponsor and an Australian Permanent Resident) and her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

   Cl.600.211(a)

10. In considering whether an 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)), however because the applicant has not previously travelled to Australia, this is not relevant.

11. The Tribunal must also consider whether the 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.

12. Tribunal has considered the personal circumstances of the applicant who was born in 1990 and is currently 30 years of age. She has recently completed her four year Dental Surgery degree and requires only to submit her thesis paper before she is awarded her degree.

13. At the time of the applicant’s review application, her husband was working in Pakistan, however he found since employment in Abu Dhabi (UAE) where he is currently living and working. The applicant plans to join him in Dubai once her thesis is completed.

14. The applicant is currently 29 weeks pregnant, however she is still keen to visit Australia, and should she give birth before her visa is granted, she is prepared to leave her baby with her parents for the duration of her visit, since upon her return to Pakistan, she will soon relocate to Abu Dhabi with her baby to join her husband.

15. The delegate also referred to the “applicant’s family link in Australia and their past Immigration history”, without elaborating on the circumstances and whether any adverse conclusions are drawn from this factor. As set out in the representative’s written submissions, neither the applicant nor her sponsoring sister have any other family link in Australia who might be said to have an adverse immigration history. The sponsor’s husband, (name withheld) arrived in Australia holding a skilled Migration visa (subclass 175) while the sponsor arrived on a Spouse visa. Neither the sponsor nor her husband have changed their visa status upon arrival in Australia.

16. It is possible that the delegate may be referring to the sponsor’s  husband’s parents who came to Australia previously on Visitor visas and subsequently changed their visa status. However this is not articulated in the decision record. If this is the reason for the delegate’s concern, the Tribunal finds that such concern is misplaced.  The applicant has no causal link with her brother-in- law’s parents’ immigration history as they do not form part of her immediate family. Clearly neither the applicant nor the sponsor had any control or influence over the migration and visa actions of their (respectively) brother-in-law’s/husband’s parents. In short, the circumstances which might have given rise to the delegate’s concerns are a mystery to the applicant who firmly attests that her immigration history and that of her immediate family are without blemish.

17. The Tribunal accepts the applicant’s testimony that she knows nothing about the immigration history of her sister’s in-laws. The Tribunal does not share the Department’s concerns regarding this matter.

18. Although the applicant has not previously to travelled to Australia, her (and the sponsor’s) mother was granted a Visitor visa to travel to Australia, arriving at the end of December 2016 and returning to Pakistan some months later but before her visa expiry.  There is no evidence of their mother breaching her visa conditions during her stay. The Tribunal has given significant weight to the fact that the parties’ mother appears to have substantially complied with her visa conditions during her visit to Australia and she departed before her visa expiry.

19. Taking all these matters into account cumulatively, and in particular the strong incentives to return to Pakistan and as well as the success of the parties’ mother’s previous visit to Australia, the Tribunal is satisfied that the applicant intends to comply with all visa conditions to which the visa is subject. The Tribunal is also satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    Cl.600.211(b)

20. Based on the documents provided, including but not limited to, copies of the applicant’s personal bank statements, her joint bank statements with her husband and her pay slips; her husband’s passport and UAE employment contract and UAE ID Card, and his pay slips, the Tribunal is satisfied that the applicant is financially secure, and does not intend to work, study or train while in Australia.

21. The Tribunal notes that the sponsor is employed as a clinical Coder in the medical records department of a hospital. She has held that role since s 2014. She currently works part-time as she has a little child to care for. The sponsor’s husband is employed on full-time basis as Senior Network Security Engineer currently providing services to the Commonwealth Bank of Australia. The sponsor maintains a joint bank account with her husband. Evidence their joint Bank Account Statements has already provided the Department with the Visitor visa application to demonstrate that they have sufficient fund to provide financial support to the applicant and accommodation and air fares to return home to Pakistan, as part of the sponsor’s sponsorship commitments. The sponsor and her husband are financially secure and comfortably affluent to be able to accommodate the applicant’s visit with ease.

22. Should she give birth before she is able to travel to Australia, the Tribunal accepts that the applicant is prepared to leave her baby in the care of her parent during her proposed visit to Australia. Furthermore the applicant must return to Pakistan in order to prepare her and her baby to relocate to the UAE in order to join her husband who now lives and works there. The Tribunal is satisfied the applicant has significant family ties and study and career responsibilities which act as incentive for her to return before the expiration of her visa, should it be granted. The Tribunal is satisfied that these factors together represent a significant incentive for the applicant to return to Pakistan before the expiration of the visa.

23. The Tribunal accepts that the applicant genuinely intends to comply with the terms of the visa and to depart Australia before the visa expires.

    Cl.600.211(c)

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

25. The delegate raises a concern regarding the applicant belonging to a member of the Ahmadiyya community, which is a persecuted minority in Pakistan. The Department has evidence of members of this community, upon travelling to Australia, seeking to change their visa status upon arrival. Whilst the Tribunal does not question this general immigration history, it is undermined by the fact that the parties’ mother, who is also a member of the Ahmadiyya community, had previously travelled to Australia without incident and departed in accordance with her visa conditions. The Tribunal finds this to be a more cogent and relevant factor to which it gives weight in favour of the applicant.

26. The Tribunal acknowledges that the visa application was made prior to the impact of the COVID-19 pandemic, and the documents provided to the Tribunal were likewise provided to the Tribunal prior to the global implications of the pandemic being known. The Tribunal acknowledges that the Visitor visa may not be able to be granted until travel restrictions are removed or at least, eased.  However based upon all the evidence before the Tribunal and with respect to the statutory criteria for the grant of a Visitor visa, the Tribunal finds that the applicant meets the requirements of cl.600.211.

27. The Tribunal is satisfied the applicant meets the requirements of cl.600.211 and genuinely intends to stay temporarily in Australia for the purpose of a family visit.

    DECISION

28. 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.

    Stephen Conwell
    Member