Fazli (Migration)

[2024] AATA 251

Fazli (Migration) [2024] AATA 251 (1 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Umbreen Fazli

VISA APPLICANT:  Master Mustafa Qadir

REPRESENTATIVE:  Mr Manoj Fernando

CASE NUMBER:  2217375

HOME AFFAIRS REFERENCE(S):          BCC2021/2522426

MEMBER:Paul Windsor

DATE:1 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 01 February 2024 at 2:25pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – intention to comply with visa conditions – No Further Stay condition – minor child applicant – mother’s proposed travel during the later stage of pregnancy – legal guardianship of visa applicant given to aunt – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231; Schedule 8, Condition 8531

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 26 September 2022 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 29 December 2021. 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. In their decision record, the delegate indicated they refused to grant the visa because they were not satisfied the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.

5. In reaching this conclusion, the delegate indicated that they considered that the applicant is a minor child and wishes to visit their aunt in Australia. The delegate noted that the applicant has provided some evidence of the sponsor's financial standing, but found that the amount cannot be considered significant. The delegate indicated that they consider the applicant has closer personal ties to Australia than to their home country, giving rise to concerns regarding the applicant’s personal incentives to depart Australia and abide by their visa conditions. The delegate stated that, after taking into consideration the circumstances in applicant's home country, they were not satisfied that the applicant had demonstrated strong ties that will act as a significant incentive for him to return.

6. The review applicant sought review of this decision on 28 November 2022. She provided the Tribunal with a copy of the delegate’s decision record.

7. The review applicant appeared before the Tribunal via video-link on 12 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s brother on behalf of the visa applicant (he is the father of the visa applicant) and from the review applicant’s husband. They joined the hearing from Pakistan, as the review applicant and her husband were visiting family in Pakistan at the time and date of the hearing.

8. The review applicant was represented in relation to the review. The representative participated in the hearing by video link from Tasmania, where he is based.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his aunt in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

12. 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)).

13. As the visa applicant has never held an Australian visa previously, this factor is not relevant in his case.

14. 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.

15. The information before the Tribunal indicates that the visa applicant is a six year old child born in Pakistan on 30 November 2017. He is a Pakistani national and lives in Pakistan with his father (the brother of the review applicant), mother and eight year old brother.

16. In the visa application it was indicated that the review applicant, who is the visa applicant’s aunt, is his ‘legal guardian’. Included with the application was a copy of a CERTIFICATE OF APPOINTMENT OF GUARDIAN UNDER SECTION 7 OF ACT NO.VIII OF 1890 (GUARDIAN AND WARDS ACT) IN THE COURT OF SYED MUHAMMAD ZAHID TERMIZI, GUARDIAN JUDGE-WEST, ISLAMABAD dated 23 February 2019 indicating that the review applicant had already been appointed guardian of the visa applicant and therefore was allowed to proceed abroad with him subject to fulfillment of all codified formalities with the direction to produce the minor as and when required by the court.

17. At the time of the visa application it was indicated that it is proposed that the visa applicant visit Australia for a stay of up to 3 months, but the stated proposed dates of the visit were from 7 April 2022 until 11 December 2022 (an 8 month period).

18. The review applicant came to Australia in February 2007 on a Student visa. She subsequently married an Australian citizen and was granted a partner visa in August 2008 and is now an Australian citizen.

19. Noting the delegate’s concern that the visa applicant had relatives in Australia and had closer ties to Australia than to Pakistan, the Tribunal asked the review applicant what family members she has in Australia and in Pakistan. She indicated that she had no family members in Australia currently. She said her parents had visited Australia previously. She indicated that two of her three brothers lived in Australia for 10 or more years, having come here to study, but both returned to Pakistan in 2009, married and now have families there. She said her eldest brother is an Australian citizen while her younger brother returned to Pakistan after completing his studies. She said she now has her parents, three brothers and their families living in Pakistan. The Tribunal notes that the family record provided also indicates she has a sister living in Pakistan.

20. The visa applicant’s father indicated that he is a public servant in Pakistan, working in the human resources development area of the Ministry of Overseas Pakistanis. The Tribunal asked the visa applicant’s father if he had sought an Australian visa in the past. He indicated he had not. When pressed, he indicated that he had but said it was a long time ago. When queried further, he indicated that he, his wife and their only child at that time (a son) had applied for Visitor visas about 5-6 years ago to come and see his sister, which were refused. Noting that the visa applicant (his second son) turned six on 30 November 2023, the Tribunal asked him why the family was seeking to come to Australia at that time, which would have been close to the time of the visa applicant’s birth, and asked if his wife was pregnant at the time. He indicated she was, commenting that she was close to the ‘second month’ of her pregnancy. The Tribunal queried whether they were planning to visit Australia and return to Pakistan for his wife to give birth or whether the plan was for his wife to give birth in Australia. He said the plan was just to visit and come back, adding that they had time to visit.

21. The Tribunal put to the review applicant and the visa applicant’s father, in accordance with the requirements of s 359AA of the Act, that Tribunal records indicate the review applicant sought review of a decision made on 7 December 2017 to refuse the visa applicant’s father a Visitor visa, which he applied for on 29 September 2017. The Tribunal commented that it considers this information is relevant to the review because the application was made shortly before the visa applicant was born on 30 November 2017, but it does not seem that this was drawn to the attention of the Department, and suggests that the visa applicant’s father may have been planning that he and his family remain in Australia permanently rather than visit temporarily as claimed. The Tribunal commented that, depending on their response or comments, the information may be part of the evidence leading the Tribunal to conclude that it is not genuinely intended that the visa applicant would stay temporarily in Australia for the purpose of a visit, and ultimately would be the reason, or a part of the reason, for affirming the decision that is under review.

22. The visa applicant’s father commented that he has a good life in Pakistan, is well established there and has no problems. He indicated that he had no plans other than to visit Australia. The Tribunal queried why he sought to travel to Australia at a time when his wife would have been 8 months pregnant, unless it was proposed she have the child in Australia, which suggests they were planning that the whole family might remain in Australia. He indicated that was not the case, commenting that, at that time, he was already employed at the Ministry of Overseas Pakistanis. The Tribunal commented that it is very unusual for a pregnant woman to travel that late in her pregnancy, adding that the Tribunal understands many airlines will not permit a woman to travel that late in their pregnancy. The Tribunal again asked the visa applicant’s father why they were seeking to come to Australia at that time. He indicated that his work experience (with overseas Pakistanis) was that hundreds of people such as military personnel and teachers travelled in such circumstances with no problems. When again asked why he sought to travel when his wife was 8 month’s into her pregnancy, he commented that it was only for a visit, adding that he had not seen his sister in many years. The Tribunal suggested that, if the visa had been granted, his wife would have had to give birth to the visa applicant in Australia. He replied suggesting that they applied at that time because of the length of time it takes for Australian visa applications to be processed.

23. The review applicant suggested that the application was made well before the due date of the visa applicant’s birth, commenting that the Tribunal was referring to the refusal decision date. The Tribunal indicated that was not the case and that the Tribunal had indicated that, while the decision to refuse the visas was made on 7 December 2017, the visa application was made on 29 September 2017, two months before the visa applicant was born. The review applicant replied that their intention was just to visit her and her husband for four weeks and she can’t see any reason why the family would want to leave Pakistan and live with them. The Tribunal commented that it seems very strange to want to visit Australia at that time when the visa applicant’s mother was heavily pregnant and could have gone into labour and when airlines may decline to carry her because of the risk of going into labour on an international flight.

24. The review applicant commented that she has seen pregnant women who are visiting the whole world, so is not sure it is a concern. The Tribunal commented that the issue is the timing of the proposed travel during the later stage of pregnancy, not pregnancy per se.

25. The review applicant commented that the visa processing took a few months and, if the visa had been granted, the family could have postponed their travel. She added that it can’t be assumed the airline would not have let her travel but if that had been the case, then she could have travelled later. The review applicant commented that she considers the issue irrelevant and that the Tribunal should deal with the facts. The Tribunal advised that it considers the timing of the visa application is a factual matter.

26. As the representative indicated he was not aware of this issue previously, the Tribunal agreed to allow 2 weeks for written submissions on this issue.

27. The Tribunal queried why the review applicant is the visa applicant’s guardian. The visa applicant’s father commented that it is a cultural issue and that in Pakistan extended family commonly live together in the same house. He confirmed that he is living with his wife and two sons in the family home in Islamabad. When asked, he indicated that the visa applicant is seeking to visit Australia so he can see his aunt’s home there as they have a very good relationship.

28. The Tribunal expressed surprise that an aunt would seek and be given legal guardianship over a nephew when the child’s mother is still living. The review applicant commented that she is his Godmother. The Tribunal commented that the document provided indicates that she is his legal guardian under the relevant Guardian and Wards Act, a quite different status to that of Godmother. The review applicant commented that they have a very loving and caring relationship and talk by video-link every day.

29. The review applicant’s husband indicated he was born in Carlton, Victoria but now lives with the review applicant in Tasmania, where they run an Australia Post Licensed Post Office. He commented that they just want the visa applicant to be able to come for a short visit of about two weeks to get to know about the culture and wildlife in Australia.

30. In oral submissions at the hearing, the representative commented in relation to the issue of the review applicant having legal guardianship of the visa applicant. The representative indicated that he had been advised that this was because the review applicant was intending to bring the visa applicant to Australia at that time (23 February 2019) but a visa application was not submitted subsequently due to the advent of the COVID-19 pandemic.

31. Consistent with a pre-hearing submission of 20 March 2023, the representative commented that the visa applicant is seeking to visit Australia for two weeks, as per the visa application lodged in 2021, and then return to Pakistan, and asserted that he meets the genuine temporary entrant requirements. The Tribunal queried the representative that the Visitor visa application makes no mention of a two week stay but indicates it was proposed that the visa applicant would arrive on 11 April 2022 and depart on 11 December 2022, a stay of 8 months (the submission of 20 March 2023 states that it is agreed by the sponsor and the visa applicant’s parents that the visa applicant would only visit Australia for two weeks as the parties agree that, given his young age, he should not be separated from his parents for any longer than two weeks). The representative suggested the dates in the visa application must be a typographical error.

32. At the hearing, the representative made the following points in support of the contention that a genuine temporary stay only is intended:

    ·All the visa applicant’s immediate family members would be remaining in Pakistan, providing a strong incentive for him to return;

    ·The visa applicant’s father has substantial property holdings which, if the visa applicant failed to return to Pakistan, he may not be eligible to inherit;

    ·The visa applicant has commenced his primary school education at a well-regarded school in Pakistan and is settled in Pakistan;

    ·The review applicant’s two brothers returned to Pakistan in 2019; and

    ·Condition 8503 would prevent further visa applications in Australia and he cannot foresee any reason why that would be waived.

33. The Tribunal noted that condition 8503 does not prevent a Protection visa application being made in Australia. The representative commented that there would be ‘no grounds’ for the making of a Protection visa application. He added that if such an application was made, the review applicant would be in breach of her sponsorship obligations, which would impact her ability to sponsor family members in the future.

34. The representative’s submission of 20 March 2023 also states that, while the visa applicant and sponsor have a strong relationship, this relationship is secondary to that with his immediate family members in Pakistan. It is also noted that the visa applicant commenced his primary school education in Pakistan in September 2022. It was stated that it is now proposed that he travel to Australia during the Ramazan holidays from 17 April 2023 until 7 May 2023.

35. Relevant additional matters raised in the representative’s post-hearing submission dated 16 January 2024 are summarised as follows:

    ·The review applicant/sponsor is the visa applicant’s Godmother as well as the legal guardian.

    ·Given the age of the child (he is 6) airlines require him to be accompanied by an adult on the flight. The review applicant requires legal rights to do this. She is also required to be his legal guardian to be able to act efficiently in the case of an emergency in Australia or whilst travelling.

    ·In early 2017, the review applicant/sponsor invited the visa applicant’s brother (the visa’s applicant’s father) and his wife and child to visit her in Australia as she had not seen him for over 6 years.

    ·The application was lodged on 29 September 2017, when his wife was 8 months pregnant with the visa applicant. They were aware she may not be able to travel due to her pregnancy and were also well aware of the airline rules regarding travelling (a document was attached confirming that airlines do not normally accept passengers for travel of more than 4 hours duration at the 8^th month of pregnancy). However, given the visas would be valid for 1 year, they expected they would be able to travel for a short visit within the validity of the visa. They never expected to give birth to a child in Australia, ‘simply because it is impossible to do it practically’.

    ·All parties confirm the purpose of the application in relation to the visa applicant is genuinely for a temporary visit for a period of two weeks only. If he intended to remain, they would have considered other visa options, such as a child visa through adoption.

36. Given the age of the visa applicant the Tribunal is satisfied that he would not work in breach of condition 8101 if the visa was granted.

37. The Tribunal also considers that there is nothing to suggest that he would seek to undertake study or training in Australia for more than 3 months (noting that it is now claimed that a stay of only two weeks is being sought).

1. Condition 8503 is a bar on making further visa applications in Australia rather than a condition that can be breached.

2. The key issue in this case is whether the applicant would remain in Australia after the end of the period of stay permitted by the visa, if granted. For the reasons discussed below, which include consideration of all other relevant matters (cl 600.211(c)), the Tribunal is not satisfied that the applicant would abide by condition 8531.

3. The Tribunal accepts that the visa applicant has more close family in Pakistan than he has in Australia. The Tribunal accepts that he lives with his parents and older brother in Islamabad. The Tribunal accepts that the review applicant’s two brothers, who previously resided long-term in Australia, have both now returned to live in Pakistan. The Tribunal notes that the visa applicant has now commenced primary school and gives some but not a great deal of weight to this, given his young age. The Tribunal notes that his father is a public servant in Pakistan (working in the Ministry of Overseas Pakistanis), but considers his annual salary, which is equivalent to approximately AUD 8,000 annually, is modest by Australia standards. The Tribunal accepts that the visa applicant’s father may have some properties which the visa applicant may inherit (at least in part) in the future, but noting his young age, does not consider this a strong incentive for him to return to Pakistan in the immediate future and gives little weight to this factor. The Tribunal accepts that, on the face of it, there are some incentives for the visa applicant to return to Pakistan after a short visit to Australia to see how his aunt in Australia lives in Australia and to see some Australian wildlife.

4. The Tribunal notes that the visa applicant has a very strong bond with his aunt, who is his Godmother. The review applicant indicated they speak every day. The representative states they have a very loving and caring relationship. The Tribunal considers that provides some incentive for him to wish to remain in Australia with his aunt.

5. In considering this matter, the Tribunal was troubled by three things. Firstly, the evidence of the visa applicant’s father and the review applicant in response to the Tribunal’s questions regarding the Visitor visa applications made by the visa applicant’s father, mother and older brother on 29 September 2017 to visit the review applicant in Australia. This was two months before the visa applicant was born on 30 November 2017. The Tribunal found the evidence given by the visa applicant’s father in relation to this matter was vague and evasive. Initially he suggested there had not been an application, then indicated it was when his wife was 2 months into her pregnancy. When asked if she was planning to have the child in Australia he commented that they were planning to visit before the birth and return to Pakistan for the birth, as they had time to do this. When the actual date of the visa application was put to him, however, he altered his account. He did not answer the question regarding why they applied for visas at that time, but sought to focus on his current circumstances in Pakistan. When queried that it would be very unusual and likely not permitted (if an airline was made aware of the pregnancy) for a women to travel internationally at that stage of her pregnancy. Both the visa applicant’s father and the review applicant denied this was unusual. The review applicant stated the application was made well before the due date, which was not the case.

6. The visa applicant’s father and review applicant subsequently altered their evidence to suggest that, because Australian Visitor visa processing takes a long time, they were thinking the family could travel after the birth if necessary. The Tribunal considers, however, that if this was the case, they would have waited until the child was born to make the visa applications because they would have had to obtain a visa application for the baby (the current visa applicant) to travel with them once he was born.

7. In the post-hearing submission it is now claimed, contrary to the oral evidence given at the hearing, that it was always the intention that the family would travel after the visa applicant was born, within the 1 year validity of the visas had they been granted, as they were well aware of airline policies to not accept passengers for flights of more than 4 hours duration at the 8^th month of pregnancy. This again neglects to mention that the visa applicant would not have had a visa to travel. The Tribunal considers that the visa applicant’s father and the review applicant were not being honest in their evidence in relation to this matter and remains concerned regarding what was intended if the visas had been granted in 2017. In relation to the possibility that it was intended that the visa applicant be born in Australia, the Tribunal does not accept the assertion that it would have ‘been impossible to do that practically’ and therefore that should be ruled out.

8. Second, the Tribunal is troubled by the guardianship document provided. The document dated 23 February 2019 indicates that the court had already appointed the review applicant as the visa applicant’s guardian (under the relevant Guardian & Wards Act). This appears to be a permanent status which would provide her with broad powers to act on his behalf (instead of his parents). The document states that she was now seeking permission to proceed to take him abroad. The Tribunal does not accept that a formal court appointment of the review applicant as the visa applicant’s guardian is the same as her being his Godmother. Nor does the Tribunal accept that it was necessary for her to became his guardian to enable her to accompany him abroad on a holiday or to act on his behalf should an emergency arise. The Tribunal considers formal sworn advice signed by his parents indicating they agree to her taking him abroad on a holiday and authorising her to act on his behalf in an emergency would have sufficed.

9. Third, while it is claimed that the intention was always for the visa applicant to visit the review applicant for two weeks, this is not indicated anywhere in the visa application, which stated that the planned arrival date was 7 April 2022 and departure date 11 December 2022, eight months later. The Tribunal does not accept this was a typographical error.

10. Considering all the available evidence, the Tribunal is not satisfied that the visa applicant will abide by condition 8531 and depart Australia within the period of stay permitted by the visa if granted.

11. For the above reasons, the Tribunal is not 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 not met.

    DECISION

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

    Paul Windsor
    Member