Fayyaz (Migration)

[2021] AATA 4010

Fayyaz (Migration) [2021] AATA 4010 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Ali Fayyaz

VISA APPLICANT:  Miss Hajra Fayyaz

CASE NUMBER:  1930662

HOME AFFAIRS REFERENCE(S):          BCC2019/4751019

MEMBER:Naomi Schmitz

DATE:30 September 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 30 September 2021 at 1:15pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit brothers – highly credible and truthful witnesses –the visa applicant genuinely intends to stay temporarily in Australia – significant educational commitments in home country– strong incentives to depart Australia – family and work commitment in home country –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 4 October 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 22 September 2019. 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 23 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from Sahiwal, Pakistan. The review applicant’s brother Mr Muhammad Umer Fayyaz (Mr Fayyaz) was available to give evidence, however the Tribunal Member was satisfied with the evidence of the review applicant and visa applicant and did not require Mr Fayyaz to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant who is currently living in Pakistan and only able to provide evidence ‘virtually’. 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 Microsoft Teams. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. On 9 September 2021, the Tribunal received the review applicant’s ‘Response to the Hearing Invitation’ signed 9 September 2021. This document indicated that the visa applicant would not be giving evidence and that only the review applicant and his brother Mr Fayyaz would be participating.

9. On 10 September 2021, the Tribunal wrote to the review applicant advising that the Tribunal noted that the visa applicant would not be participating in the hearing. In response the Tribunal advised ‘It is the Tribunal Member’s expectation that the visa applicant will participate in the proceedings and be available to give evidence at the hearing scheduled at 9:30am on 23 September 2021. Please be aware if the visa applicant does not give evidence, the Tribunal cannot assume what evidence the visa applicant would have given. In other words, by failing to be called by you the review applicant, the Tribunal Member cannot conclude what her evidence would have been as to do so would be speculative. The Tribunal needs to be satisfied what the visa applicant’s intention is when traveling to Australia. The Tribunal Member may not be able to be satisfied that the visa applicant has a genuine intention to stay temporarily in Australia without hearing direct evidence from the visa applicant’.

10. On 13 September 2021, the review applicant confirmed that the visa applicant would make herself available to give evidence at the hearing.

11. On 16 September 2021, the review applicant provided the following documents; the visa applicant’s Faysabank bank account statement from 23 September 2020 until 9 September 2021; 10 pay cheques between 8 October 2020 and 8 September 2021; a letter of employment dated 19 August 2020 from Dr Syed Hasnat Ahmad the Managing Director of the Alina Dental Surgery Orthodontic and Implant Center confirming the visa applicant has full-time and ongoing employment as a ‘General Dentist’; a letter dated 28 March 2019 confirming the visa applicant’s appointment at the Sharif Medical City Hospital in Lahore Pakistan as a House Officer/Intern from 29 March 2019 (undertaking 12 month practical experience after the completion of her dentistry degree) and a certificate of completion of her internship; and a declaration from the visa applicant dated 14 September 2021 stating that ‘all the evidence provided in this appeal is true and correct’.

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. The visa applicant is a 24-year-old Sunni Muslim who is a citizen of Pakistan. In the present case, the visa applicant seeks the visa for the purposes of visiting her three brothers in Australia, two of whom have wives and children. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

14. The visa applicant requested a visitor visa for up to 3 months, accompanying her mother, Mrs Parveen Akhtar (Mrs Akhtar), with a planned arrival date of 15 November 2019 and a departure date of 18 December 2019. Mrs Akhtar was granted her family sponsored visitor visa, but did not ultimately travel to Australia due to the COVID-19 pandemic.

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. In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

17. 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.

18. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given she has applied for a visitor visa for the purposes of visiting family and the short duration of the visit. The Tribunal accepts that she will be accommodated and financially supported by the review applicant during her stay in Australia. The Tribunal is also satisfied that the visa applicant has personal savings which would be adequate to support herself. The visa applicant is a qualified, registered and practising dentist in Pakistan. The visa applicant gave evidence that she has no intention to work in Australia as she ‘already has a full-time job… and that she is really satisfied and happy with her employment and wages’.

19. The Tribunal notes the visa applicant could not commence practising as a dentist in Australia. To do so would require registration with the Dental Board of Australia and the Australian Health Practitioners Regulatory Authority Dental Board. Only dentists who are registered or have a bachelor degree from specific countries have their registration mutually recognised in Australia, including dentists from the United Kingdom, the Republic of Ireland and New Zealand or dentists from Canada with eligible qualifications who are compliant with additional requirements. As the visa applicant is from Pakistan, this would require her to complete an Australian qualification or undertake an examination procedure conducted by the Australian Dental Council. Given these legal regulations, the Tribunal is satisfied the visa applicant would not engage in work whilst in Australia.[1]

    [1] and

20. The Tribunal is also satisfied that the visa applicant intends to comply with conditions 8503 and 8531 which are discussed below cl 600.211(c) in the context of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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

22. The visa applicant gave evidence that she currently resides with her parents at their home in Sahiwal, Pakistan. At the hearing the visa applicant gave evidence that the purpose of her visit was to visit family members, including her three brothers and her nieces and nephews. The review applicant gave consistent evidence stating that he had not seen his sister for almost three years since he last returned to Pakistan in October 2018. He stated that at the time of application his mother was visiting Australia for the fourth time and that the visa applicant had recently finished her medical degree in dentistry and planned to accompany their mother to visit Australia. The visa applicant stated in the future she proposed to visit for approximately four to six weeks, depending how much leave she could get approved from her employer. The review applicant gave consistent evidence stating his sister would stay for ‘roughly the same length of time [as her original application], approximately one month’. The Tribunal accepts the visa applicant and review applicant’s evidence and accepts this is a valid reason to apply for a visitor visa to Australia.

23. The Tribunal enquired as to what travel, if any, the visa applicant had undertaken outside Pakistan. The visa applicant explained she has not undertaken previous travel due to studying dentistry for four years at university and subsequently undertaking one year in practical clinical training. The review applicant gave evidence of the same and emphasised the visa applicant’s dedication to her dentistry studies. In support, the Tribunal received a certificate of offer and certificate of completion confirming that the visa applicant between 29 March 2019 and 28 March 2020 had completed one year in dentistry clinical training including in the following departments; diagnostic and dental radiology, oral and maxillofacial surgery, orthodontics, operative dentistry, prosthodontics and periodontology. The Tribunal was also supplied with evidence of the visa applicant’s medical registration as a dentist. Both the visa applicant and review applicant presented as honest and highly credible witnesses. The Tribunal accepts this evidence and places limited weight on the fact that the visa applicant has not undertaken previous travel.

24. The Tribunal enquired as to what incentives the visa applicant had to return to Pakistan. The visa applicant stated that she has full-time and on-going employment as a dentist in Pakistan. The Tribunal accepts the visa applicant’s evidence which is supported by various financial records including her bank statements which show a monthly deposit of 70,000 Pakistan rupee equivalent to $565.00 AUD per month, photocopies of 10 monthly pay cheques each in the sum of 70,000 Pakistan rupee and an employment letter confirming the visa applicant has full-time and ongoing employment with an annual salary of 840,000 Pakistan rupee equivalent to $6824.00 AUD, with an annual increment of 10% and various leave benefits. The visa applicant also stated she has a desire to undertake postgraduate studies in dentistry and specialise. The Tribunal places substantial weight on the visa applicant’s employment and her desire to undertake further studies in Pakistan. From her evidence it was clear how committed she is to her profession and career in Pakistan.

25. The visa applicant stated that she is not currently in a relationship and does not have any children. She resides with her mother and father who own a property in Sahiwal Pakistan who she must ‘come back to’. Both the visa applicant and review applicant gave evidence that there is a substantial family network who reside in the state of Punjab Pakistan, including the visa applicant’s parents with whom she shares a close relationship. They also gave evidence that they have a brother who previously resided in Australia for seven years, studying accounting, but who has since returned and re-settled in Lahore Pakistan. The review applicant sought to highlight that the Department referred to the visa applicant only having a ‘father’ present in Pakistan. He stated that this was inaccurate, as it assumed their mother travelled to Australia and had not returned, despite her never leaving Pakistan due to the COVID-19 pandemic. It also neglected to acknowledge the return of their brother who now permanently resides in Pakistan.

26. The visa applicant and review applicant also gave evidence that they have a grandmother, four aunties and four uncles and approximately 28 cousins who all reside in the state of Punjab Pakistan. The visa applicant has three brothers who reside in Melbourne, Australia, two of whom are Australian citizens with their wives and children and another brother who is on a temporary student visa and single. There is also some extended family including second and third cousins in the United States of America. Although there are some family in Australia, the Tribunal is satisfied that there is a substantial family network in Pakistan, in particular the visa applicant’s parents, which would provide an incentive for the visa applicant to return after her visit to Australia.

27. The review applicant gave evidence that the visa applicant has a large ‘friend and social circle’ based in Pakistan and that the visa applicant has never thought of settling in Australia. He also stated a lot of funds have been invested to educate the visa applicant at medical school in Pakistan and that she ‘wants to work and practice there [Pakistan]’. The Tribunal accepts this evidence.

28. The Tribunal enquired as to what assets the visa applicant has. The visa applicant gave evidence that she has some personal savings. The Tribunal received a recent bank statement with a closing balance of 229,771.19 Pakistan rupee which is equivalent to $1,887.00 AUD. The visa applicant does not own any property and does not own a motor vehicle, stating she ‘uses her parent’s car’. The Tribunal noted in the bank statement the visa applicant received money from her father including in the sums of 500,000, 110,000 and 100,000 Pakistan rupee equating to $4051.00 AUD, $891.00 AUD and $810.00 AUD. Although the visa applicant does not have significant assets, this must be viewed in the context of the visa applicant recently completing her medical degree and commencing her dentistry career. The Tribunal therefore places limited weight on the fact that the visa applicant does not have significant assets.

29. The review applicant gave evidence that his mother has travelled from Pakistan to Australia three times and his father two times. He also referred to one of his brothers travelling to Australia on a student visa and after completing his accounting degree returning to Pakistan to work full-time and reside permanently. The Tribunal places considerable weight on the fact that the visa applicant’s family have complied substantially with the conditions of other visas which may be a relevant consideration for cl 600.211(c).

30. The visa applicant is not from a persecuted ethnic minority and is a Punjabis Sunni Muslim. The Tribunal asked the visa applicant whether she had a well-founded fear of any form of persecution in Pakistan due to her race, religion, nationality, membership of a particular social group or political opinion which would provide a basis for her attempting to convert to a protection visa. The visa applicant replied ‘No…nothing like that’. The review applicant was asked the same question to which he replied “No not at all’. The Tribunal notes that the review applicant and his brother obtained permanent residency through a skilled independent visa and skilled sponsored visa.

31. The Tribunal explained that as a relevant factor pursuant to cl 600.211(c), that it needs to consider the situation of a visa applicant’s home country, Pakistan, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report which refers to Pakistan suffering from protracted terrorism, being vulnerable to natural and humanitarian disasters, ethnic and religious tensions which have been significant push factors for external migration. The report describes the security situation as complex, volatile and affected by politically motivated violence, ethnic conflicts and sectarian violence. In 2018 the state of Punjab reported the fifth highest number of terrorist attacks namely four which killing 20 people. [2]

    [2] Department of Foreign Affairs and Trade (DFAT) Report Pakistan dated 20 February 2019

32. The visa applicant did not dispute these issues stating ‘That is correct. That has happened’. However, she explained that she personally has never experienced any ‘sect problems’ or had any ‘safety issues during my studies or employment. Nothing has ever happened to me. I’m really thankful to god as I’ve never had any security issues’. She confirmed that the security problems ‘would not be a reason to remain in Australia’.

33. The review applicant acknowledged that there were some ethnic groups who engaged in conflict and violence, however sought to distinguish his family stating he has ‘never found anything like that…that we’ve never had any incident…from our experience it is pretty safe and that the state is very peaceful, especially our city’. He referred to the visa applicant studying by herself in a hostel in Lahore, Punjab, going about her everyday life independently and using public transport herself. The review applicant also gave evidence that he has returned to Pakistan four or five times, the last time with his wife and two children and that his other brother has also returned four or six times. This is corroborated by various travel movement records obtained by the Tribunal. The Tribunal has considered the security situation in Pakistan which are push factors for external migration, however the Tribunal accepts the visa applicant and review applicant’s evidence and is satisfied that it would not constitute a disincentive to return.

1. The review applicant gave evidence that he and his brother would be prepared to lodge a security bond in the sum of $15,000 to guarantee the visa applicant’s return Pakistan.

2. The Tribunal has considered all matters carefully. There are a number of factors in the visa applicant’s favour, including her having a valid reason to visit Australia. Although she has three brothers who reside in Australia, two of whom are Australian citizens with wives and children, she equally has a substantial family network in the state of Punjab Pakistan, which the Tribunal places significant weight on. One of the most compelling factors in support of the visa applicant returning to Pakistan, is the fact that she is employed as a dentist and who enjoys a satisfying career. She also has intentions to specialise and undertake further postgraduate studies which are only possible in Pakistan. She is also in receipt of a salary and enjoys a comfortable and happy life in Pakistan, including with family and friends. Although the visa applicant has not undertaken any previous travel, including to Australia or abroad, this must be viewed in the context of her young age, and her undertaking fulltime medical studies and clinical training. As a result, the Tribunal places limited weight on the fact that the visa applicant has undertaken no previous travel. The Tribunal also places limited weight on the fact the visa applicant does not have significant assets, due to her dedicating her early life to her medical degree and career.

3. The country information is relevant given terrorism attacks and ethnic violence have occurred in the visa applicant’s home state of Punjab, however the Tribunal accepts the visa applicant and review applicant’s evidence that she has not personally encountered any security issues and is satisfied that the security situation would not serve as a disincentive to return to Pakistan after her visit to Australia. The Tribunal also accepts that the visa applicant does not have a well-founded fear of any form of persecution. The visa applicant and review applicant presented as highly credible and truthful witnesses. The Tribunal as a result is satisfied that the visa applicant would comply with conditions 8503 and 8531.

4. 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

5. 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.

   Naomi Schmitz
   Member