Khan (Migration)

[2023] AATA 1686

Khan (Migration) [2023] AATA 1686 (8 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sarfaraz Khan

VISA APPLICANT:  Mr Arsala Khan

CASE NUMBER:  2212431

HOME AFFAIRS REFERENCE(S):          BCC2022/809356

MEMBER:Jane Marquard

DATE:8 June 2023

PLACE OF DECISION:  Sydney

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 08 June 2023 at 1:02pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to return or remain – accompanying mother with limited mobility – mother’s simple rural life, family and community responsibilities and physical and mental health – father’s extended travel for work and applicant’s care for mother and property – local area not impacted by conflict – consequences for future sponsorships by sponsor and wife – offer of surety – mother’s separate review – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
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 26 July 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND AND OVERVIEW

2. The visa applicant, Arsala Khan, is a 31-year-old man from Pakistan.

3. He applied for the visa on 30 March 2022 to accompany his mother, Rehana Bibi, to Australia to visit his brother Sarfaraz Khan. His brother, Sarfaraz Khan is the review applicant (and sponsor) in this matter. His mother’s application is being reviewed separately.

4. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the delegate was not satisfied that the visa applicant met cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied that he had sufficient incentives to return to Pakistan at the end of the visit taking into consideration the fact that he had no previous travel.

5. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   RELEVANT LAW

6. 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.

7. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to 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.

   EVIDENCE CONSIDERED IN THIS REVIEW

8. The Tribunal has taken into consideration the information found on the relevant Department file, including:

   ·Pakistan birth registration certificate for Aisha Faraz, daughter of the review applicant, registered on 8 December 2020.

   ·Australian Citizenship by Descent certificate for Aisha Faraz issued on 15 June 2021.

   ·Scanned copy of Aisha Faraz Australian passport.

   ·Scanned copies of Engineers Certificates of Discharge book showing engines assessed by the visa applicant’s father.

   ·Family Registration Certificate – Government of Pakistan issued on 15 February 2012.

   ·Letter from the review applicant inviting his mother and brother to visit Australia, dated 15 March 2022.

   ·NAB Bank statement for the period ending 14 January 2022 issued to the review applicant. The statement shows a closing balance of $46,260.36.

   ·NAB Bank statement for the period ending 14 March 2022 issued to the review applicant. The statement shows a closing balance of $40,048.36.

   ·Payslip issued to the review applicant for the pay date of 16 March 2022 showing a payment of $1588.61.

   ·Letter from Dr. Izaz-ur-Rahman dated 10 March 2022 stating that the visa applicant’s mother has osteoarthritis and will need to be accompanied when travelling.

   ·Affidavit of the visa applicant’s mother dated 4 March 2022.

   ·Scanned certified copy of identification cards.

   ·Marriage Registration Certificate for Rehana Bibi and Umar Zamin, issued on 25 September 2015 in Pakistan.

   ·Submissions from WLW Migration Lawyers dated 30 March 2022.

   ·Transfer of deed to visa applicant.

   ·Birth certificates and passports.

   ·Australian Certificate of Citizenship issued to Sarfaraz Khan on 8 October 2019.

   ·Letter from Commonwealth Bank of Australia to the review applicant stating his bank balance at 12 March 2022 was a total of $56,156.36.

   ·Letter from Traffic Diversions Group dated 9 March 2022 confirming the review applicant’s employment.

   ·Payslip for the review applicant for various periods between 24 January 2022 and 27 February 2022 showing payments of amounts between $1957 and $2616.

   ·Continuous Discharge Certificate – Umar Zamin.

   ·Statement from Commonwealth Bank issued to the review applicant showing a list of transactions from 15 November 2021 to 15 March 2022.

   ·Statement from UBL Ameen Bank dated 28 February 2022 stating Arsala Khan has held a bank account there since 2012.

   ·Transfer deed for plot of land.

   ·Bank statement from UBL Bank or the period of 27 August 2021 to 27 February 2022 showing a closing balance of 9,571,575.00 for Arsala Khan.

9. No Tribunal hearing was necessary in this matter as the Tribunal was able to determine the matter on the papers in favour of the visa applicant pursuant to s 360 (2)(a) of the Act.

   FINDINGS AND REASONS

10. The issue in this case is whether cl 600.211 of Schedule 2 to the Regulations 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Purpose of visit

12. In the present case, the visa applicant seeks the visa for the purposes of visiting family and to accompany his mother who needs his assistance. Visiting family is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

    Has the visa applicant complied substantially with the conditions of the last substantive visa held?

13. 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)).

14. The visa applicant has not travelled previously to Australia such that this criterion is not relevant.

    Does the visa applicant intend to comply with the conditions to which the Subclass 600 visa would be subject?

15. 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.

16. The Tribunal is satisfied that the visa applicant would not work or study, in compliance with Conditions 8101 and 8201, given that his purpose is to accompany and assist his mother with her trip. The Tribunal is also satisfied that he would comply with Conditions 8503 and 8531 for reasons set out in the following paragraphs, but in particular, due to incentives to return to Pakistan and the review applicant’s character.

    Are there any other relevant matters?

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

18. Firstly, the Tribunal has considered the strong incentives to return to Pakistan. The visa applicant’s father, Umar Zamin, will remain in Pakistan for the visit. The presence of his father and other family members in Pakistan is a strong incentive for him to return to the family home where he lives with his parents. The review applicant has submitted, and the Tribunal accepts, that his mother is not very mobile, has only ever lived in Pakistan in rural areas and does not speak English. The Tribunal accepts that as she ‘does not like cities’ and is very close with her community and friends for life, she would not want to stay in Australia for longer than was necessary.  This was confirmed by his mother in her evidence. She said that her siblings and father live in Pakistan, and she would want to return to them. She said that since her mother had died, she has responsibilities as an eldest daughter, and according to their traditions and culture, she has commitments to attend village and family events such as weddings and funerals. She also said that she wanted to return as she was receiving medical treatment in Pakistan. The Tribunal also accepts on the basis of documentation provided that the visa applicant owns property and he can only get someone to take care of these properties temporarily. Given his commitments to looking after his mother and the connections he has to land and property in Pakistan, the Tribunal is satisfied that there are strong incentives for him to return to Pakistan.

19. Secondly, the Tribunal has taken into consideration that a wish to visit his brother and niece along with his mother, is a reasonable basis for a temporary visit in Australia. His mother said that she misses them and wants to spend some time with them. The review applicant has also requested his mother visit to help his wife and daughter settle in Australia as she feels isolated. He finds it difficult to assist his wife, as he works night-shifts as a traffic controller. He believes that showing his mother and brother around would help his wife feel more at home. It is reasonable to expect that the review applicant and his wife would like a temporary visit from the visa applicant and his mother for the reasons they have expressed.

20. Thirdly, the Tribunal has taken into consideration the character of the review applicant. He is an Australian citizen and has had a long-term job at the Traffic Diversions Group. An employer’s letter was provided in which he was described as ‘honest, reliable and valuable’. The review applicant has assured the Tribunal that although his mother and brother live in the Swat Valley which has a history of conflict, they are not impacted by the conflict. He said currently ‘they both understand that there is no other pathway to another visa if they come on the family sponsored visitor visa, and they are happy with this because they do not wish to remain here. Neither of them has any fear of returning to Pakistan. They are from the Swat Valley and they do not believe themselves to be at risk of harm. They’ve only ever lived in Pakistan and they are happy to keep it that way. They are simple people and live simple lives.’

21. Fourthly, the Tribunal has taken into consideration the fact that the review applicant travelled to see his mother and brother in 2019 but has not been able to visit since then due to the pandemic and commitments in Australia such that it is reasonable that he would hope they could visit in Australia.

22. Fifthly, the Tribunal accepts the review applicant’s submissions that he needs his brother to bring his mother to Australia as she is frail and ‘used to a rural existence’. He explained that she needs support with daily activities which the visa applicant provides to her on a full-time basis. A letter from his mother’s doctor stated that she suffers from osteo-arthritis of the knee joints Stage 3, as well as depression and fibromyalgia. The doctor confirmed that she needs assistance for travelling and daily activities. The Tribunal accepts the review applicant’s evidence that the visa applicant drives her, takes her to the shops and looks after her needs. In Australia he will help her with physical support and to ‘emotionally handle’ the difference in culture and infrastructure. The Tribunal accepts the review applicant’s evidence, in light of the other factors discussed, that the visa applicant also intends to stay temporarily as he takes care of the family farm as their father is a merchant naval officer who travels frequently. According to the visa applicant’s mother, her husband travels at sea two to three months at a time. The review applicant emphasised that the visa applicant wishes to return at the end of the visit to care for his mother as there is no-one else to do so as his father travels regularly for long periods. His mother also referred to the visa applicant looking after the property as well as the housework.

23. Sixthly, the review applicant’s wife’s family live in Pakistan. It can be expected that they would like to sponsor them and other relatives to visit in the future which would comprise a strong incentive for the visa applicant to comply with visa conditions on this occasion.

24. Finally, the review applicant has confirmed that he would be prepared to provide a surety of $10 000 to guarantee the return of his relatives at the end of the visit. This displays confidence that the visa applicant would comply with relevant conditions.

25. 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. It may be an appropriate case for the requirement of a surety.

    DECISION

26. 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.

    Jane Marquard
    Member