Khan (Migration)

[2019] AATA 4443

Khan (Migration) [2019] AATA 4443 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abid Khan

VISA APPLICANTS:  Mr Mohammad Asif Khan Jadoon
Mrs Javeria Fareed
Master Abu Bakar Jadoon
Master Hanzala Jadoon
Miss Maham Jadoon
Miss Aimen Jadoon
Master Ibrahim Jadoon

CASE NUMBER:  1818386

HOME AFFAIRS REFERENCE:                BCC2018/2274632

MEMBER:Rosa Gagliardi

DATE:9 October 2019

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 09 October 2019 at 9:11am

CATCHWORDS
MIGRATION –Visitor (Class FA) visa – Subclass 600 (Visitor) Sponsored Family stream – genuine intention to stay temporarily in Australia – visiting critically ill relative and supporting family – travelling as a large family group in school holidays – successful business and established, comfortable lifestyle in Pakistan – intends to comply with the conditions imposed  – decision under review remitted

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 12 June 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 26 May 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 he/she was not satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence Mr Noman Khan, the sponsor’s nephew, and Mr Sajjad Umer Malik, a family friend.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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 applicants seek the visas for the purposes of visiting the sponsor who is the first named visa applicant’s brother. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

9. The first named visa applicant, aged 48, his wife and their children (the mentioned secondary applicants) live in Karachi and are coming to Australia to see the sponsor principally, and to spend time with his family.  It is also a mercy dash in that the sponsor’s child is critically ill in hospital and the sponsor and his family require support at this time. 

10. The sponsor emphasised that his brother, the first-named visa applicant was very well established in Karachi.  He had a good business and a large house and had servants.  He had a large family there.  The first-named visa applicant was in the business of transport of petroleum all over Pakistan and was contracted to a national government agency.  Initially, the business was managed by their father but now the applicant was the Director of the company. 

11. Their respective children also wanted to visit each other as cousins.

12. The sponsor stated that he was in a very stressful situation.  He and his wife had several other children but they were required to attend the hospital to provide support for their 9 year old son.  Currently, he was in intensive care.  He was hoping his brother, the first-named visa applicant could come to help him by staying at home with his children, so that he and his wife could spend more time at the hospital with their ill son. The sponsor stated that his son’s condition was on a knife’s edge.  He wanted his brother to stay for about 2 months if possible, but then it depended on how his son’s condition unfolded.

13. The Tribunal stated that it could understand if the first-named visa applicant came to Australia on his own to visit him and provide him with support, but bringing the entire family appeared to be inconsistent with the purpose of the visa.  The Tribunal noted that it would be an expensive exercise for the first-named visa applicant to travel to Australia with his entire family.  The sponsor agreed but stated that his brother was not “a normal person”.  He was a very successful businessman.  The sponsor stated that his own lifestyle was nowhere near as comfortable as that of his brother.

14. The sponsor stated that his brother had a range of assets, including land, a house worth around AUD2,000,000 and his office.  The house was in the Defence Housing Authority in Karachi which was a prosperous area to live in.  

15. The Tribunal noted that the children’s ages ranged from 18 through to young children meaning that the parents might be hoping to achieve a new life for themselves in Australia.  The sponsor stated that was not the case.  The first-named visa applicant was responsible for looking after their elderly parents and they had five sisters and two brothers and the first-named visa applicant was the patriarch of the family. 

16. The Tribunal queried what would happen to the children’s education while they were in Australia.  The Tribunal noted that the 18 year old would be at a critical stage in their future and the applicant responded that they would travel in the school holidays.

17. The Tribunal asked what would happen to the applicants’ business in the first-named visa applicant’s absence.  The sponsor stated that others could manage the business.  The workers had a high level of accountability because of its connections to the government.  The first-named visa applicant could also keep an eye on things over the phone and by other means of communication.

18. The sponsor stated that he came to Australia on a subclass 417 visa with his wife.  He had not fled Pakistan and nor would the applicants.

19. The sponsor stated that he would guarantee that his brother was not going to stay in Australia and he was prepared to provide security as required.  He had previously sponsored his parents and his sister and they returned to Pakistan without breaching their visa conditions. 

20. The Tribunal asked how he would house his guests.  He stated that he had a four bedroom property and he had a granny flat at the back.  The sponsor stated that his brother also lived close by and some of the applicants could stay there.

21. The sponsor stated that the first-named visa applicant had travelled previously to Japan on a business trip.  He had also been to Bahrain, and more recently went to Saudi Arabia with his family.

22. The Tribunal noted that the first-named visa applicant could always sell the business and move to Australia permanently.  The sponsor stated that people who lived comfortably in Pakistan, did not settle well in Australia.  He had servants.  He would not want to come here and start from scratch.  If he really wanted to come to Australia he could have done so via a Business Enterprise visa so he would come with respect.  Given his financial position it would be very easy for him to meet the criteria for the visa.  Why would he try to come here the difficult way? 

23. The Tribunal noted that while the first-named visa applicant and his wife might lead a comfortable life, it may be that they want better opportunities for their children in terms of education.  The sponsor stated that was highly unlikely.  The children had their own drivers and attended exclusive schools. They were used to a particular way of life.  In Australia life was much harder.  The children would not be able to cope in Australia where they would have to do everything from themselves.  They were privileged. 

24. The sponsor’s nephew, Mr Noman Khan, also gave evidence.  He stated that several members of their family have come to Australia and then returned to Pakistan.  The Tribunal stated that may have been the case for other family members, but in this case the first-named visa applicant was coming to Australia with his entire family and they had no one to return to in Pakistan.  Mr Khan stated that the children were all being educated at reputable schools and his uncle, the first-named visa applicant, was a successful businessman dealing with oil companies.  He did not think they would stay in this country with their children.  They had a large property in Pakistan.  Their lifestyle was incomparable to what their life would be in Australia.  They had drivers, cleaners and a range of assistance.  His sole purpose in coming to Australia was to be with his family and then they would return to their home country.

25. Mr Khan stated that they wanted other family members, such as his mother, who had visited on several occasions previously, to be able to return to Australia and not be impeded any breaches of the conditions of the applicants’ visas.  Mr Khan stated he was sure that the applicants would return on expiry of their visas.  He also confirmed that the first-named visa applicant had had his business for a lengthy period as initially his grandfather managed it.  His grandfather was the hardworking person who built the business from the ground up. 

    
    

    Mr Khan came to Australia on a student visa and he had always complied with his student visa condition.  He stated his extended family all obeyed the laws of Australia.  They have had around 8 visits from family members to Australia and had never had any issues. 

26. Mr Khan stated that the only reason that the entire family wanted to come to Australia was so that they could have a family trip together.  He stated that the business run by the first-named visa applicant was worth billions.  He had a contract of five tankers and it was a large enterprise.  He had no reason to flee Pakistan.  He confirmed that the applicants lived in the Defence Housing Authority zone which was an affluent area. 

27. The Tribunal also took evidence from Mr Malik, a family friend.  Mr Malik stated that he had been to the home of the applicants and they were very well established in Pakistan.  He did not need to stay in Australia.  The Tribunal asked whether the applicants were coming to pave the way for the children to come to study in Australia.  Mr Malik stated that if that was their intention they could simply send their children to study here and they could come legitimately as students. 

28. Mr Malik stated that the reason the children were not staying behind was because the family unit was important culturally and they would not want to stay by themselves.  They wanted to visit their family members together and besides, they could well afford to travel as a family.

29. Finally, the Tribunal took evidence from the second-named visa applicant.  The Tribunal asked why the entire family needed to come to Australia.  She stated that they all wanted to take the opportunity to visit.  Asked if the applicants were attempting to establish themselves in Australia, the second-named visa applicant stated that they had their own business and attended school.  The Tribunal asked why they would take the children out of school and she responded that the travel would only occur in the holidays, so the children would not be missing out on school.  The holidays were in December and that is when they hoped to travel.  The Tribunal noted it would be an expensive enterprise for the family to travel to Australia and she responded that it was expensive, but they had the means to afford it.  The second-named visa applicant stated that they wanted to support the sponsor because of his sick child.  They had no intention of staying in Australia.  She stated her children were close to the sponsor’s children and they wanted to see each other.

30. The Tribunal also spoke to the first-named visa applicant.  He stated that he really wanted to see the sponsor’s son because he was very sick.  They also wanted the children to be together; his and his brothers.  The Tribunal noted that it was very expensive to bring his wife and his children out to Australia.  He responded that his children just wanted to see Australia and he wanted to see his brother during this difficult time.  He also wanted to see how the sponsor’s son’s condition progressed but he really had to get back as soon as possible; within a month or so.

    cl.600.211(a) 

31. 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)).

32. The applicants have not been to Australia previously.  Nonetheless, the Tribunal accepts that the sponsor’s parents and his sister have travelled to Australia previously and as far as the Tribunal is able to make out, they have complied with their visa conditions and returned to their home country.  The Tribunal places some positive weight on this compliance.

33. The Tribunal notes that the first-named visa applicant has travelled for business purposes to Japan and to other countries in the Middle East but it is difficult to place significant weight in the applicant’s favour on account of this limited travel given the applicants do not have strong affective family ties in these countries, as they do in Australia. 

    cl.600.211(b)

34. 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)):

    ·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.

35. In support of their application the applicants submitted the following:

    ·An income statement prepared by an accountant for the first-named visa applicant’s transport business demonstrating that for the year ending June 2017, his profit had been 19,204,452 Pakistani Rupee (the equivalent of roughly AUD180,521.85 after expenses and wages paid);

    ·Evidence of the first-named visa applicant having purchased property in Pakistan Defence Officers Housing Authority, Karachi (Clifton Town);

    ·Evidence of land owned by the applicants;

    ·Evidence of the first-named visa applicant’s taxation payment for the ASIF Transport Company;

    ·Registration of business Asif Transport Company in the first-named visa applicant’s name;

    ·Evidence of Asif Transport Company having a contract for the movement of petroleum for Pakistan State Oil Company Limited;

    ·Data prepared by the Federal Board of Revenue in relation to the first-named visa applicant’s business;

    ·Bank account details for the first-named visa applicant’s business covering several months, showing large inward and outward payments;

    ·Evidence of payment to the first-named visa applicant’s business by Pakistan State Oil Company Limited until 28 June 2019;

    ·Further accounting details showing the first-named visa applicant’s net profit after taxation for the year ending June 2018, was 47,841,355 Pakistan Rupee; about AUD449,708.74;

    ·Evidence of travel by the family members outside Pakistan;

    ·A list of family members who the sponsor has sponsored within the previous 10 years and beyond, including his parents, sister, nephew, nieces, sister-in-law;

    ·Evidence from the Principal of Darul Ulum College of Victoria, dated 12 September 2019, confirming that the sponsor and his wife have “ongoing full time employment with us since February 2003”; and

    ·Letter by the applicant on Asif Transport Company letterhead, dated 13 September 2019, stating that his assets in all total approximately 5 million Australian dollars and that his business involves the movement of petroleum products to inland depot networks all over Pakistan.  He explains that he would be leaving his parents and brothers and sisters behind in Pakistan.  He also wrote, “The reason I would like to visit Australia is to see my younger brother Mr Abid Khan and his family since his son Mohammed Khan, underwent a heart surgery (implantable cardioverter-defribillator) recently in the Royal Children’s Hospital, Melbourne.  Due to Mohammad Khan’s complex medical condition he needs frequent hospital admissions and outpatient appointments which place a huge burden on my brother, Mr Abid Khan….My brother Abid Khan requested me and my family to visit Melbourne to assist and help at this critical period as they are undergoing stressful conditions due to the above reasons…”.

36. The Tribunal accepts that the first-named visa applicant and his family enjoy a privileged social and economic position in Karachi.  The detailed information provided to the Tribunal about the first-named visa applicant’s business; its profitability; and the scope of the business in the distribution of petroleum throughout Pakistan has convinced the Tribunal that the applicants’ circumstances are as favourable as described by the first and second-named visa applicants, and all the witnesses who appeared at the hearing.

37. The Tribunal also accepts that the first-named visa applicant’s business and the quality of life it has enabled the applicants to have, serve as strong motivations for the applicants to return to Pakistan on expiry of their visas.  The Tribunal understands that the family business, apart from its economic profitability, also has sentimental value to the family as it was initially run by the first-named visa applicant’s father who developed it a successful business.  The Tribunal also accepts that the secondary applicants (the children) attend elite schools and are keen on continuing their education in Pakistan to benefit from the privileges that follow consistent with their family’s status.

38. The Tribunal has had regard to country information on the Defence Housing Authority in Karachi, which confirms that it is a wealthy neighborhood located within Clifton Cantonment of Karachi, Sindh, Pakistan. 

    Clifton Cantonment is one of the posh localities of Karachi with huge infra-structure, sprawling shopping centers and decent recreational areas, neat and clean environment. It is predominantly inhabited by civilian populace with only a linear portion towards the North where certain pockets of military establishment exists.[1]

    [1] accessed on 9 October 2019.

1. These details about the Defence Housing Authority are consistent with the applicants’ address details in the Clifton Cantonment.

2. The Tribunal is persuaded by the evidence that the applicants’ in travelling as a family together are doing what most upper-middle class families might do, which is holiday and visit family, and that the family is not intending any change of status to their migration status in Australia.  While the Tribunal might ordinarily have serious concerns where a family is travelling together, in this case the Tribunal considers that the sponsor’s and witnesses credibility and the documentary evidence overall, outweigh any such concerns.

   cl.600.211(c)

3. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The sponsor has submitted medical evidence regarding the condition of his son, Mohammad Khan, from the Royal Children’s Hospital, Melbourne, stating that Mohammad “has complex congenital heart disease and has needed several surgeries for his heart.  He also has developmental delay and hepatic lesions.  Mohammed was admitted to the Royal Children’s Hospital for an implantable cardioverter-defibrillator insertion from 14/0/2019- 2/09/2019, and his admission was complicated by a lower respiratory tract infection and acute kidney injury requiring admission to intensive care…Due to Mohammad’s complex medical conditions he needs frequent hospital admissions and outpatient appointments which places a burden on his parents.  They have requested that family members come to Melbourne to assist them in caring for him”. 

4. The Tribunal has sympathy for the sponsor’s family’s circumstances.  However, the Tribunal has had to take into account a range of factors in terms of being satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted to reach a favourable outcome.

5. 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

6. 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.

   Rosa Gagliardi
   Member