Khan (Migration)

[2020] AATA 1043

Khan (Migration) [2020] AATA 1043 (26 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ajmal Khan

VISA APPLICANTS:  Mr Nadar Khan
Mrs Tasleem

CASE NUMBER:  1833853

HOME AFFAIRS REFERENCE(S):          BCC2018/3569436

MEMBER:Margie Bourke

DATE:26 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 26 March 2020 at 12:19pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – sponsored family stream – genuine intention to stay temporarily – previous compliant travel to other countries – family and business ties to home country – two children in home country and two in Australia –prevailing political, security and economic conditions – consequences of non-compliance – 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 Immigration on 23 October 2018 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 19 September 2018. 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 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 (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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the two visa applicants genuinely intend to stay temporarily in Australia.

5. The review applicant attended the hearing before the Tribunal on 19 March 2020 by telephone at the request of the Tribunal, to give evidence and present arguments. The Tribunal also received oral evidence from the two visa applicants by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   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 applicants seek the visas for the purposes of a family visit.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Cl.600.211(a)

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. I accept, based on the evidence before me, that neither visa applicant has travelled to Australia previously, and that neither visa applicant has been the holder of an Australian substantive or bridging visa. There is, therefore, no evidence of compliance or non-compliance with a previous Australian visa.

12. I accept that the first named visa applicant has previously travelled to China, and both visa applicants have travelled to Saudi Arabia, and there is no evidence that either visa applicant has not complied substantially with their visas.

    Cl.600.211(b)

13. 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.

14. I have considered the Department’s decision records, both dated 23 October 2018, and copies of which were provided to the tribunal by the review applicant.  The delegate records that under normal circumstances the first named visa applicant’s family and business links to Pakistan, and the second named visa applicant’s family ties to Pakistan would constitute an incentive to return.  The delegate accepts that the visa applicants are not directly affected by unrest occurring in Pakistan, but concludes the prevailing political, security and economic conditions in Pakistan constitute a strong disincentive for the visa applicants to return there.

15. I am not sure what the delegate means by the phrase normal circumstances.  I have considered the evidence of the visa applicants’ personal circumstances, and the current political and security situation, and its impact on the visa applicants in the region where they reside. 

16. I have considered the visa applicants’ personal circumstances and their evidence of the current situation, and I am satisfied that the visa applicants genuinely intend to comply with the conditions to which the visa may be subject, and intend to return to Pakistan before the expiration of the visa.

17. I have considered the review applicant’s birth certificate, and I am satisfied that the visa applicants are his parents.  I have considered the oral and written evidence plus photographs and documents provided by the review applicant. I accept that the visa applicants have four sons, two of whom reside in Australia and two in Pakistan.  I accept the evidence that the review applicant came to Australia in 2006, is married with two young daughters, and has returned to Pakistan three times to visit his family. I accept the review applicant’s older came to Australia in 2011 and has not returned to Pakistan

18. I am satisfied that the visa applicants live in their own home, with one of their married sons, his wife and five children.  This son works with the first named visa applicant in the family business, which the first named visa applicant established over twenty years ago, importing clothes such as jackets from China. I accept the other son who resides in Pakistan is married with two children and works in real estate. I accept the visa applicants have strong family ties to their sons, daughter-in-laws and grandchildren who reside in Swat. I accept the visa applicants have strong ties through the ownership of their family home, and the first named visa applicant’s long established business, to their home area and country.  I am satisfied that the visa applicants do not have economic or financial incentives not to return to Pakistan, as I accept they own their own home, and have a well-established business, and both sons who reside in Pakistan are employed.

19. I accept that the visa applicants were born in Pakistan, and have a connection through language and community, as well as through family and business to Pakistan.

20. I accept the evidence of the visa applicants that they wish to visit Australia, to spend time with the review applicant and his family, and their other son, and that they do not intend to work, study or train in Australia.  I accept that the visa applicants had hoped to be in Australia to assist the review applicant and his family at the time of his wife’s previous pregnancy and birth, which was the reason for the application being made. I accept that, subject to the restrictions due to the Covid-19 virus, the visa applicants would like to attend the review applicant’s graduation ceremony in August this year if possible. I am satisfied that the reasons for the visa applicants’ requested visit are family orientated, and the purpose of the visit is to visit family members and participate in family celebrations and spend time with the family. I accept that the visa applicants intend to return to Pakistan after their family visit.

21. I accept the visa applicants are curious to see the country and personal circumstances of the lives of two of their sons.  I accept the review applicant and his family have discussed Australia with his parents, and wish to show their home and country to the visa applicants.

22. I discussed the political and security situation with the first named visa applicant in the hearing. I accept his evidence that the situation in the region where they live, Khyber-Pakhtunkhwa, was very tense in 2012/2013, but it has recovered.  The delegate recorded in the decision record that the area is an extremely dangerous environment with a high threat of terrorism, kidnapping and violence. The first named visa applicant stated that while there  continued to be a chance of that form of attack or violence, the situation had recovered and he described it as ‘normal’ now.  I accept the risk of attack or violence has abated, and similarly to the delegate I am satisfied that the visa applicants are not directly impacted by any political unrest.

23. For all the above reasons I am satisfied that the visa applicants intend to comply with the conditions of the visa, including returning to Pakistan before the expiration of the visa.

    Cl.600.211(c)

24. The Tribunal has also considered all other relevant matters (cl.600.211(c)). I accept that the review applicant and the two visa applicants understand that if the visa applicants do not comply with the conditions of the visitor visa, it will be unlikely that they, or other family members in Pakistan, would be granted a visitor visa in the future to visit the review applicant and his family.  I accept that this is another reason the visa applicant intend to comply with the terms to which the visitor visa would be subject.

    Conclusion

25. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

26. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Margie Bourke
    Member