Foladi (Migration)

[2017] AATA 2625

Foladi (Migration) [2017] AATA 2625 (30 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Ali Foladi

VISA APPLICANT:  Mrs Laila Sakeeb Arif

CASE NUMBER:  1609075

DIBP REFERENCE(S):  FA 600

MEMBER:Ian Garnham

DATE:30 November 2017

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 November 2017 at 3:41pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 – Never travelled to Australia – Extensive overseas travel – No evidence of non-compliance – Reliable witness – Genuine applicant

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 Schedule 2 cls 600.211, 600.211(a)-(c), 600.221, 600.222, 600.611(2)

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 Immigration on 7 June 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 June 2016. At the time the visa application was lodged, Class FA contained one subclass, subclass 600 (Visitor), which has four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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;

   ·    It is not reasonable and consistent with tourism for the visa applicant to travel to Australia with her whole family

   ·    No family ties in your country of residence that are significant incentives to return

   ·    Your family has a negative immigration history in Australia

5. The review applicant appeared before this Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his daughter, the visa applicant, by conference telephone.   

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

   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 now seeks the visa for the dual purposes of visiting her parents and convincing the department (DIBP) that she will comply with the conditions of her visa.  These are purposes for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   Background:

9. This matter has had a protracted history including various administrative delays at this Tribunal.

10. The visa applicant claims that she initially applied for all of her family members (her husband and 2 daughters) to come to Australia to visit her parents and conduct tourist activities.  On 7 June 2017 the visa applicant received a refusal decision in respect of her application.  The visa applicant claims that no other members of her family received refusal decisions.  Her father, the review applicant applied to this Tribunal on 20 June 2016.

11. Since the application was made the visa applicant has had another child, born in May 2017, and it is no longer convenient for her whole family to visit Australia however, it is clear that the whole family will wish to do so in the future.      

12. The visa applicant is the 38yo daughter of Pakistani parents, she is a Pakistani national.  She was born in the United Arab Emirates (UAE) and has lived there ever since.  She has married an Indian citizen and therefore her children are nationals of India, but they have always lived in the UAE. 

13. The review applicant, (her father) said he left Pakistan for work in Dubai in 1968, he joined the army and served for 27 years.  He had 5 children who were all born in the UAE.  He came to Australia with his wife and a son in September 2009 on tourist visas and claimed protection.  Protection visas were granted on 23 June 2010 and the review applicant became an Australian citizen on 29 January 2014.  One son still lives in Australia, the visa applicant lives in the UAE and his other 3 children live in Pakistan.

    cl.600.211(a):

14. 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.

15. The visa applicant has never travelled to Australia but she and her husband have travelled extensively overseas as outlined in her submission to the Tribunal dated 20 March 2017[1]:

    To clarify this point of limited international travel, I would like to say that my husband has travelled to UK, Portugal, France, Amsterdam, Malaysia, Thailand, Seychelles and Ethiopia.

    And as a couple/family we have taken holidays to Malaysia twice, Thailand, and Seychelles and most recently to Mauritius in JULY 2016.  The destinations of travel that I have mentioned are for the past 3 years only and before that I have personally travelled to the UK thrice (in the last 15 years) and if I ever had any intention to stay in UK I would probably have considered then.

    [1] At FF: 45-46 (AAT)

16. The visa applicant has also provided copies of passport stamps and entries which confirm most if not all of this travel.[2]  There is no information before me to suggest that the visa applicant (or her husband) has not complied with all of her visa conditions in respect of her overseas travel.

    [2] At FF: 16-52 (DIBP)

17. As such I am satisfied that the visa applicant and her husband have travelled overseas extensively with and without her family as she claims.

    cl.600.211(b):

18. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(2)):

    ·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.

19. In my opinion; in respect of the visa applicant’s current plan to travel to Australia alone for a brief period, her intention to comply with the above conditions or otherwise turns on her incentives to return to her home in the UAE.

20. The incentives for the visa applicant to stay in Australia temporarily are best discussed in a broader context along with other relevant matters.

    cl.600.211(c):

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

22. The visa applicant is 38 years old and has significant incentive to return to her home, in particular her current plan is to leave her young family at home in the UAE.  The visa applicant’s family includes 3 children one of which is a 6 month old baby.  The review applicant and the visa applicant said that her husband operates a real estate business and is very rich.  The travel history of the visa applicant, her husband and the children, which is discussed above supports the claims of the applicants as to the wealth of the family. 

23. To substantiate this claim the visa applicant has provided the Tribunal with a copy of a bank statement for the visa applicant’s husband for the period, 01/10/16 to 20/03/17[3].  Throughout the entire period the balance of this account fluctuated between 200,000 (ED) and 150,000 (ED) (which is approximately equal to a range of $72,000 (AUD) to $54,000 (AUD)).  In addition, the visa applicant claims that she jointly owns real property in Dubai.

    [3] At FF: 40-44 (AAT)

24. I found the visa applicant to be a very genuine and reliable witness and have no doubts that her current plan is to visit Australia and her parents on a temporary basis.  I do not consider that it is even remotely possible that she would choose to leave her young family, her husband and her home in the UAE to seek to remain permanently in Australia.

25. I was impressed by the genuineness of the visa applicant and the review applicant in the evidence that was provided at the hearing; the visa applicant has also provided significant documentary evidence to support the claims that she has made.      

26. 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

27. 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.

    Ian Garnham
    Member