Hussain (Migration)

[2018] AATA 4262

Hussain (Migration) [2018] AATA 4262 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Masooma Hussain

VISA APPLICANTS:  Mrs Fatima Hussain
Miss Baneen Fatima
Mr Salar Muhammad

CASE NUMBER:  1712355

HOME AFFAIRS REFERENCE(S):           17/02/00970 CLD2017/2482572

MEMBER:Nicole Burns

DATE:6 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction with respect to the second and third named visa applicants. 

Statement made on 06 September 2018 at 2:24pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – personal circumstances in home country – work commitment – applicant’s financial circumstances – extended family ties in home country – security concerns – applicant’s husbands senior position in army – decision under review remitted


LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 May 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 9 March 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 first named visa applicant the visa, on the basis that she did not meet cl.600.211.

5. The review applicant – who is the visa applicant’s sister - appeared before the Tribunal on 6 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ brother, Imran Ali, and the visa applicant via telephone from the United States of America (USA), where she is currently visiting with her children.

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

7. The Tribunal notes it does not have jurisdiction to review the decisions to refuse to grant visitor visas to the second and third named visa applicants because the review applicant is their aunt, which is not a specified relative as required under the Act.

   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 visa applicant seeks the visa for the purposes of visiting her sister, and brothers in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).

11. The visa applicant visited her sister in Australia as the holder of a visitor visa from 5 February 2011 to 3 April 2011, leaving before the expiry of the visa.  There is nothing before the Tribunal to indicate that she did not comply substantially with the conditions of the last substantive visa held. 

12. 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)). These include: :

    ·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.

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

14. There is no evidence to suggest that the visa applicant is enrolled in any course to study or that she will work in Australia.  There is no evidence before the Tribunal that she would be entitled to a substantive visa, other than a protection visa, while remaining in Australia.

15. The delegate was not satisfied that the visa applicant’s personal circumstances in Pakistan demonstrated sufficient ties to induce her to leave Australia at the end of the proposed visit, which the Tribunal has considered below where relevant. 

16. The review applicant described her sister’s circumstances and the purpose of the visit at hearing.  She said her sister primarily wants to spend time with her and see her (and her children’s) life in Australia.  The visa applicant told the Tribunal she would visit for only around 20 days, given she works as a teacher in Pakistan and would not be able to get more time off.  The review applicant provided to the Tribunal a copy of her sister’s letter of appointment as a teacher and the Tribunal accepts she works as a teacher in Pakistan.  It is satisfied her work commitments would act as some incentive for her to return to Pakistan after any visitor visa that may be granted.  The Tribunal also accepts the visa applicant’s  husband is a lieutenant colonel in the Pakistani army who owns Defence housing property there, noting evidence of the visa applicant’s husband leave approval and ownership of Defence housing assets has been provided. On this basis, and noting payslips and account information has been provided relating to the visa applicant’s husband, the Tribunal is also satisfied that the visa applicant and her husband are reasonably well off financially and that economic opportunities (as remarked upon by the delegate) in Australia would not necessarily serve as a disincentive for the visa applicant to return to Pakistan. 

17. The review applicant told the Tribunal her sister currently lives in Quetta with her husband and their two children.  They have lived there for around a year but are due to move Islamabad in October (2018).  The visa applicant has lived in a number of cities throughout Pakistan since her marriage, depending on where her husband is posted with the army, including Lahore (Punjab) and Nowshera (Khyber Pakhtunkhwa).  The visa applicant has two brothers in Pakistan – one who lives in Quetta and the other in Karachi.  Both work in their family business importing and distributing men’s suits throughout the country and both have children.  The visa applicant’s parents have died however she has a number of extended family members in Pakistan as well as members of her husband’s family.  The Tribunal considers her family ties to Pakistan would act as a reasonably strong incentive for her to return there.

18. [Paragraph deleted]. 

19. The review applicant told the Tribunal that she came to Australia in 2008 accompanying her husband – who is an architect - on his skilled visa.  They lived for a couple of years in a regional area, which was a visa requirement, before moving to Melbourne when their permanent visas were granted.  Up until recently the review applicant has worked in aged care.  They have school-aged children.  There is nothing in the review applicant’s immigration history to indicate that she has circumvented the proper migration channels and  it appears she and her husband have worked hard to establish their lives here.  Given these considerations the Tribunal is of the view that the review applicant would ensure her sister returned to Pakistan before the expiry of any visitor visa that may be granted, as she did in the past.

20. The Tribunal notes as well the review applicant’s evidence that her sister has travelled to Australia before (in 2011) on a visitor visa and complied with the relevant visa conditions.  She has also travelled to other countries, including the USA and the United Kingdom (UK) on visitor visas and has returned to Pakistan before they expired.  The Tribunal gives the visa applicant’s immigration and travel history significant weight, noting that she has had the opportunity in the past if she wished not to return to Pakistan.

21. In summary, the Tribunal accepts the visa applicant has reasonably strong incentives to return to Pakistan in the form of family ties there and her work as a teacher.  There are some concerns about the security situation for Hazara Shias acting as a disincentive for the visa applicant to return to Pakistan, but the Tribunal is of the view that this risk is reduced significantly given what it accepts of her husband’s position in Pakistani army and any  residual concern is outweighed by other positive aspects of the case, including the visa applicant’s positive immigration history with respect to Australia and other countries she has visited recently including the UK and the US (where she is visiting at the time of the hearing).   

22. For these reasons and considering the visa applicant’s circumstances overall, the Tribunal is satisfied that her stated intention of only coming to Australia temporarily and for the express purpose of visiting her sister, brothers and niece and nephew is genuine.

23. 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

24. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

25. The Tribunal does not have jurisdiction with respect to the second and third named visa applicants. 

    Nicole Burns
    Member