Hussain (Migration)

[2024] AATA 837

Hussain (Migration) [2024] AATA 837 (9 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ayaz Hussain

VISA APPLICANT:  Mr Mukhtar Hussain

CASE NUMBER:  2304667

HOME AFFAIRS REFERENCE(S):          BCC2022/5587598

MEMBER:Stephen Witts

DATE:9 April 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 09 April 2024 at 1:15pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to depart or remain – no evidence provided of work and house – applicant’s wife an Australian citizen, and child and wife’s other family members living in Australia – partner visa and previous tourist visa applications refused, and second partner visa in progress – child’s developmental condition and wife’s physical injury – no appearance by applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 February 2023 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 27 December 2022. 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 Tourist 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 applicant genuinely intends to stay in Australia temporarily.

5. The review applicant appeared before the Tribunal on 9 April 2024 to give evidence and present arguments.

6. The Tribunal notes that the visa applicant (the applicant) was invited to attend via video from Pakistan but did not seek to do so.

7. The Tribunal also received oral evidence from the applicant’s spouse Ms Unmalbanin Ghulamrasool.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

11. 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)).

12. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing evidence given at the hearing.

14. The Tribunal notes that it has been provided with a copy of the relevant delegates decision dated 7 February 2023 where it was asserted that the applicant has demonstrated limited financial, employment, or personal ties that would act as an incentive for the applicant to stay in Australia temporarily.

15. The Tribunal has also considered evidence provided to the Tribunal prior to the hearing by the applicants.

16. Included was a pay slip for the review applicant from 2023 indicating employment with an IT company and a home loan account from the ANZ bank in the name of the review applicant and Ali Maryem dated 1 April 2023.

17. Also included on one April 2023 was a document entitled ‘family tree’ which included the applicant and the review applicant, and Ms Saira, Ms Khiram, Ms Razana, Mr Niaz Ali, and Mr Riaz Ali, indicating that they are siblings.

18. At the hearing the Tribunal had a discussion with the review applicant and the visa applicant’s wife, currently residing in Australia.

19. The visa applicant’s wife stated that she lives in Australia and is an Australian citizen and that she made a partner visa application in 2014 for her husband, the applicant, which was rejected, and that since that time she has made 2 visitor visa applications, including this one, which was also rejected. She stated that she has made another partner visa application on 5 December 2023 and that she is waiting for that to be processed. She stated that they have a six-year-old son and that she lives with her family in Australia including her mother and siblings.

20. She stated that it is very hard living here without a husband and that she has not been back to Pakistan since 2018 and that her husband has never been to Australia, that she has been here for 13 years, that her son is autistic and needs considerable assistance, that she has a knee injury which is creating difficulties for her, and that she would like her husband to be able to come to Australia as a visitor and be with her. She stated that she has not seen him in almost 7 years.

21. The review applicant stated that he came to Australia in 2008 on a student visa and that he became a permanent resident approximately two years later. He stated that he does not have any other family here in Australia, and that his parents and two brothers in Pakistan have passed away, and that he has three sisters back at home and the applicant who he would like to come to Australia and visit and be with his wife.

22. He stated that his brother has his own business in the hospitality industry and that he lives by himself in his own house and that he has some family that he sees sporadically as they live in different locations. He stated that he talks to his brother’s wife on occasion and can see that she is distressed and that also their son is very distressed, and that he would like his brother to come to Australia for a visit. He stated that because his brother has a partner visa application pending that therefore he would not overstay on his visit.

23. The Tribunal has considered the evidence provided very carefully noting that there is no evidence before it of the applicant’s ties to his home country that would act as an incentive to him to return including specifically financial, employment, or personal incentives to return to his home country. The Tribunal notes that the review applicant has stated that his brother does work and does have a house however no specific evidence was provided regarding this that can authenticate this contention. On that basis the Tribunal finds that this lack of evidence of demonstrated ties to his home country does lend weight to a contention that the applicant would not be a genuine temporary visitor to Australia.

24. The Tribunal also notes that the applicant has considerable incentive to stay in Australia including his wife and six-year-old son. The Tribunal notes that it was contended by the review applicant that the fact that he has a partner visa application pending which could evolve into a permanent visa, that therefore it would act as an incentive for the applicant not to breach his visitor visa conditions however, after careful reflection, the Tribunal finds that this, although it could act as some form of incentive, would be outweighed by the considerable incentive of remaining here in Australia with his wife and son while continuing to wait for his partner visa which it is anticipated could be relied upon to be professionally and independently assessed based on whether the couple are in a genuine spousal relationship.

25. The Tribunal finds therefore that the applicant lacks a demonstrated incentive to return to his home country as noted above and that he also has a considerable incentive to remain in Australia once here with his wife and family. On that basis the Tribunal finds that the applicant would not be a genuine visitor to Australia and that once here he would intend to stay here permanently.

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

27. 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

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

    Stephen Witts
    Member