Latif (Migration)

[2019] AATA 6391

Latif (Migration) [2019] AATA 6391 (5 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Naumaan Umar Latif

VISA APPLICANTS:  Mr Muhammad Abdul Latif Shahid
Mrs Zakia Latif Shahid

CASE NUMBER:  1805154

HOME AFFAIRS REFERENCE(S):           BCC2017/4376405

MEMBER:Melissa McAdam

DATE:5 November 2019

PLACE OF DECISION:  Sydney

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 05 November 2019 at 11:50am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – complying with the conditions – no family members remaining in Pakistan – process of migrating to the USA – extensive travel history visiting family in other countries – intention to sponsor other family members – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 18 January 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 20 November 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 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 visa applicants are husband and wife.

5. The first named visa applicant provided the following information in his visa application:

   a.He is a 79 year old man from Islamabad, Pakistan.

   b.He has a son who lives in the USA, a daughter who lives in the Netherlands, another daughter who lives in the UK and another son who lives in Australia, the review applicant.

   c.His two sisters and three brothers live in Pakistan.

   d.He wants to come to Australia for up to three months to visit his son and grandchildren here.

   e.He visited the USA for two months in 2013; the USA for six months in 2011-12; and the UK for one month in 2009.

   f.He is retired. His son will provide him with accommodation, food and travel while he visits Australia.  He also has his own funds for additional expenses.

6. The second named visa applicant provided the following information in her visa application:

   a.She is a 73 year old woman from Islamabad, Pakistan.

   b.She has a son who lives in the USA, a daughter who lives in the Netherlands, another daughter who lives in the UK and another son who lives in Australia, the review applicant.

   c.One sister lives in the UK, another sister lives in the USA, and her two brothers and third sister live in Pakistan.

   d.She wants to come to Australia for up to three months to visit her son and grandchildren here.

   e.She visited the USA for six months in 2011-2012; the UK for one month in 2009; and the Netherlands for a few weeks in 2009.

   f.She is retired. Her son will provide her with accommodation, food and travel while she visits Australia.  She also has her own funds for additional expenses.

7. The review applicant provided the following information in the visa application:

   a.He is the son of the visa applicants and applied to sponsor their visa applications.

   b.He is an Australian Permanent Resident.

   c.He has been employed as a Lead Business Analyst for over two and a half years.

8. The applicants provided copies of the following documents in support of the visa applications:

   i.A Government of Pakistan Family Registration Certificate, showing the visa applicants and their four children, and identifying the visa applicants as the parents of the review applicant.

   ii.The biodata page of the first named visa applicant’s Pakistan passport.

   iii.The first named visa applicant’s Pakistan National Identity Card.

   iv.The first named visa applicant’s Bank Account statement.

   v.The first named visa applicant’s BUPA Health Insurance ‘Standard Visitors Cover’.

   vi.An affidavit from Zinat Un Nisa stating that the first named visa applicant is her brother and is planning to visit Australia.

   vii.A Travel Agent Travel Itinerary for the first named visa applicant.

   viii.The biodata page of the second named visa applicant’s Pakistan passport.

   ix.The second named visa applicant’s Pakistan National Identity Card.

   x.The second named visa applicant’s Bank Account statement.

   xi.The second named visa applicant’s BUPA Health Insurance ‘Standard Visitors Cover’.

   xii.An affidavit from Muzaffar Ahmad Zia stating that the second named visa applicant is his sister and is planning to visit Australia.

   xiii.A Travel Agent Travel Itinerary for the second named visa applicant.

   xiv.A letter from the review applicant proposing to sponsor his parents’ visit to Australia.

   xv.A notification dated 6 March 2013 from the Department of Immigration to the review applicant that he had been granted a Skilled (Migrant) (class VE) Skilled – Sponsored (subclass 176) visa.

   xvi.The review applicant’s PAYG payment summaries for 2016 and 2017.

   xvii.The review applicant’s 2016 and 2017 Tax Assessments.

   xviii.The review applicant’s Bank Account statements.

   xix.The review applicant’s PaySlips.

   xx.The biodata page of the review applicant’s Pakistan passport.

   xxi.The review applicant’s NSW Lease Agreement.

   xxii.Rent receipts in the review applicant’s name.

   xxiii.The review applicant’s electricity bill.

9. The applicants later submitted copies of the visa applicants’ passports showing their religion as ‘Ahmadiyya’.

10. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because they did not have family members in Pakistan to induce their return there; the Ahmadiyya are a persecuted minority group and there is a high incidence of Ahmadiyya from similar circumstances attempting to change their status while in Australia; and they  did not have sufficient ties to Pakistan to induce them to leave Australia at the end of their proposed visit.

    Information to the Tribunal.

    Pre-Hearing Submission

11. On 28 October 2019 the review applicant submitted the following written information to the Tribunal:

    i.A copy of the first-named visa applicant’s bank account statement showing a closing balance of 192,121.20 PKR, as at 30 September 2019.

    ii.A copy of the second-named visa applicant’s bank account statement showing a closing balance of 726,530.93.40 PKR, as at 30 September 2019.

    iii.A copy of the first-named visa applicant’s Schengen visa issued to him on 23 April 2018, plus entry and exit stamps to the Netherlands for June and July 2018.

    iv.A copy of the second-named visa applicant’s Schengen visa issued to her on 20 April 2018, plus entry and exit stamps to the Netherlands for June and July 2018.

    v.A Form I-797 ‘Notice of Action’ from the United States of America, Department of Homeland Security, re ‘Petition for Alien Relative’ – ‘Approval Notice’ ‘Parent of US Citizen’, issued 17 January 2019, in relation to ‘Nasir Kamran Latif’s petition for the first-named visa applicant.

    vi.A Form I-797 ‘Notice of Action’ from the United States of America, Department of Homeland Security, re ‘Petition for Alien Relative’ – ‘Approval Notice’ ‘Parent of US Citizen’, issued 17 January 2019, in relation to ‘Nasir Kamran Latif’s petition for the second-named visa applicant.

    Tribunal Hearing

12. The review applicant appeared before the Tribunal on 5 November 2019 to give evidence and present arguments. The following is a summary of the information he provided at the hearing:

    a.He would like his parents to visit him in Australia because he is their youngest son. His other siblings live in different countries, the USA, UK and Netherlands. His parents have visited each of them in their country but have not had the opportunity to come to Australia to visit the review applicant here and see how he lives.

    b.The review applicant came to Australia six years ago. For the first two years he struggled, working in factory jobs to support his family here. But now he is well settled and doing well in Australia so he wants his parents to see that he has become successful here. He wants to show them Australia, with his wife and children. 

    c.His parents have not seen their grandchildren here. When their visitor visas were refused in 2017 they were very distressed. The review applicant went to Pakistan with his children so they could spend a few weeks with their grandparents.  It was difficult for him to go then and it adversely affected his work, but it was necessary.

    d.The review applicant’s eldest son is 10 years old and is daughter is 7 years old. They would like to spend time with their grandparents in Australia.

    e.His parents would like to visit Australia for two or three months.  His father loves sightseeing so they will travel together to places interstate and generally just spend family time together.

    f.Most of his parents’ siblings are still living in Pakistan.

    g.The problems for Ahmadiyya Muslims are not so bad in Islamabad where his parents live.  Islamabad is the capital city. They live quite a normal life there.

    h.Since the 1970s his parents have loved travelling. They have often been to countries in Europe and the USA.

    i.His eldest brother is a citizen of the USA. He is a well-established doctor in the USA  and he wants their parents to come to live with him there. They do not want to leave Pakistan but they realise it is a good idea to emigrate to the USA because they are in the 70s and he is their eldest son and a doctor, so they have agreed.  His applications for them to become residents of the USA have been approved and they just need to finalise the document requirements. The process is about to be completed.

    j.They still want to visit Australia and the review applicant very much wants to show them his life here. In Pakistan he worked in telecommunications and was responsible for operations over two continents.  In Australia he has had to rebuild his career.  It has taken time but he has finally broken through.  He is working as a project manager at Optus, overseeing a $500 million project.  He recently became a citizen of Australia.

    k.The review applicant hopes to sponsor other relatives to visit him in Australia in the future. He knows that if his parents overstay or breach any of their visa conditions in Australia it will be difficult for him to do so.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. In the present case, the visa applicants seek the visas for the purposes of visiting their son and his family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

15. 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)).

16. The visa applicants have not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by them.

17. 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.

18. The Tribunal accepts that the visa applicants will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the visa applicants have personal savings and sufficient funds to support themselves during a visit to Australia. There is no indication before the Tribunal that either of the visa applicants intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied they both intend to comply with condition 8101.

19. There is no evidence or indication the visa applicants have any interest or need to study in Australia. The Tribunal is therefore satisfied they both intend to comply with Condition 8201.

20. Condition 8503 refers to entitlement and is not a condition that involves compliance.

21. The visa applicants’ intentions to comply with condition 8531 is discussed below in relation to whether they genuinely intend to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

22. The Tribunal accepts that the visa applicants are an aged married couple from Pakistan. The Tribunal accepts each of their children live in a different country, in Europe, the USA, and Australia.  While they are in the process of emigrating to the USA the Tribunal accepts that they have lived comfortably in Pakistan for many years and that they would be motivated to  return to their lives there after a short visit to Australia.

23. The Tribunal notes the visa applicants’ extensive travel history in the USA and Europe and give this considerable weight in their favour.

24. The Tribunal also gives substantial weight to the good migration history of the review applicant in Australia. The Tribunal acknowledges the importance to the review applicant of maintaining a good reputation with regard to his family and relatives’ immigration compliance in Australia. The Tribunal notes his wish to sponsor other family members to visit Australia in the future.  The Tribunal considers this further motivation for him to ensure the visa applicants do not breach any of their visa conditions and depart Australia before the expiry of their visas. 

25. The Tribunal considers that the preliminary approval of the visa applicants’ application to reside in the USA with their eldest son, presents further strong incentive for them to comply with visa conditions here and to return to Pakistan to await the finalisation of the process.  The Tribunal accepts they will need to be in Pakistan for the final requirements of the  immigration process and also to be able to organise their possessions and make the necessary arrangements for the relocation of their lives to the USA.

26. The Tribunal acknowledges the information about the difficulties for Ahmadiyya in Pakistan but accepts that these may be experienced to differing degrees by individual members of the Ahmadiyya communities throughout Pakistan.  The Tribunal accepts that the visa applicants have been able to live securely in Pakistan to date and have returned there on numerous occasions despite the opportunities to remain abroad.

27. In sum, the information before the Tribunal supports a conclusion that the visa applicants wish to come to Australia to visit their son and grandchildren here, and then return to Pakistan.

28. 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

29. 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.

    Melissa McAdam
    Member