Naeem (Migration)

[2018] AATA 5878

Naeem (Migration) [2018] AATA 5878 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Munawar Naeem

VISA APPLICANTS:  Mr Mansoor Naeem
Mrs Nilofer Mansoor
Master Hazeem Ahmed

CASE NUMBER:  1817406

HOME AFFAIRS REFERENCE(S):           BCC2018/1771402

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  20 December 2018

DATE OF WRITTEN STATEMENT:         18 January 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 18 January 2019 at 12:24pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuinely intends to stay in Australia temporarily – religious missionary – incentive to return to home country – Ahmadis – 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 a combined application for the review of three decisions made by a delegate of the Minister for Immigration on 17 May 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. On 22 April 2018, the visa applicants applied for the visas. The first-named visa applicant is a 31 year old national of Pakistan. The second-named visa applicant is his 29 year old wife and the third-named visa applicant is their two year old son—both also nationals of Pakistan.

3. The review applicant is the older brother of the first-named visa applicant. He is a 34 year old Australian citizen who is living in Brisbane where he is working in the Australian Public Service.  

4. 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.

5. 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.

6. The review applicant provided the Tribunal with copies of the three primary decisions. 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 visa applicants genuinely intended to stay temporarily for the purpose for which the visas would be granted.

7. On 20 December 2018, the review applicant appeared in person before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the first-named visa applicant by telephone from Pakistan. The second-named visa applicant and Mr Naeem Shahid (the father of the review applicant and the first-named visa applicant) were available to give evidence but the Tribunal considered it unnecessary to hear their oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that each visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether that 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. The visa applicants seek the visas for the purposes of visiting various family members in Australia, particularly Mr Shahid and the review applicant. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

    Clause 600.211(a)

12. 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).

13. In this case, none of the visa applicants have travelled to Australia previously. When the Tribunal asked the first-named visa applicant whether he had travelled to a country outside of Pakistan, he told the Tribunal that he had travelled to India on three occasions: in 2011, 2012 and 2013. He gave oral evidence that he had complied with the conditions of applicable Indian visas. The Tribunal notes that the review applicant gave similar evidence in respect of the first-named visa applicant’s previous travel and compliance with visa conditions. The Tribunal has no reason to doubt the veracity of the oral evidence given but makes no findings with respect to the visa applicants’ previous compliance with immigration conditions.

    Clause 600.211(b)

14. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visa would be subject: cl.600.211(b).

15. 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. There is no information before the Tribunal suggesting that the visa applicants would engage in any work in Australia or any study or training in Australia for more than three months. There is also no evidence before the Tribunal that the visa applicants would seek to apply for substantive visas whilst in Australia. Based on the evidence before it, which is set out below, the Tribunal is satisfied that the visa applicants will not remain in Australia after the end of any permitted stay.

17. The Tribunal discussed the four conditions with the review applicant and the first-named visa applicant at the hearing. The first-named visa applicant gave oral evidence that he would comply with all four conditions and the review applicant also told the Tribunal that he was honestly of the opinion that all the visa applicants would comply with all conditions. 

18. The Tribunal notes that the applicants filed written submissions which outline in detail the applicants’ claims to meet the relevant criteria for the grant of the visas (Tribunal file ff.12–14) as well as many other documents including: a statutory declaration made by Mr Shahid on 21 August 2018 (Tribunal file f.10); a 50 Rupees statement made by the first-named visa applicant (Tribunal file f.96); bank statements for the review applicant and the visa applicant; statements made by medical professionals treating Mr Shahid and his wife; and a family composition list.

19. In short, the visa applicants wish to visit Mr Shahid and his wife as they are both experiencing various health issues, with Mr Shahid having being diagnosed and treated for a very serious medical condition. The first-named visa applicant told the Tribunal that he wanted his wife and son to be able to meet with his father because his father is not well.

20. The first-named visa applicant is a missionary for the Ahmadiyya community in Pakistan. The first-named visa applicant gave oral evidence that he had devoted his life to this purpose and said that his wife and son were dependent on him and that the family would stay together so that he could pursue his work commitments. He told the Tribunal that he could have sought to come to Australia with all his other family members in 2014 but he decided not to pursue that migration outcome, preferring to stay in Pakistan.  

21. Both the review applicant and the first-named visa applicant gave detailed evidence which was consistent with the claims made in the written submissions. Both men impressed the Tribunal as very credible persons and the Tribunal accepts their oral evidence that the visa applicants intend to comply with the conditions to which the Subclass 600 visas would be subject. The Tribunal considers that the reasons provided by the review applicant and the first-named visa applicant for the visa applicants’ proposed visit to be plausible. While the first-named visa applicant’s family ties in Australia provide a strong incentive for him and his family to remain in Australia, the Tribunal considers that the visa applicants’ incentive to return to Pakistan is greater. The Tribunal accepts the review applicant’s and first-named visa applicant’s evidence that the visa applicants will return to Pakistan so that the first-named visa applicant can continue his work, which he described as a great responsibility.    

    Clause 600.211(c)

22. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

23. The delegate expressed concern that the first and second-named applicants’ backgrounds as Ahmadis and the political, security and economic conditions in Pakistan constituted ‘very strong’ disincentives for the applicants to return to Pakistan.  

24. During the hearing, the Tribunal raised with the review applicant and the first-named visa applicant the information about Pakistan published by the Australian Government Department of Foreign Affairs and Trade (DFAT) on the Smart Traveller website.[1] The travel advisory states that travellers should ‘reconsider [their] need to travel to Pakistan due to the volatile security situation and high threat of terrorist attack, kidnapping and sectarian violence’. The Tribunal also raised some information in DFAT’s country information report on Pakistan, specifically the statement that ‘DFAT assesses that the low level of development in Pakistan acts as a significant “push factor” for external migration’.[2]

    1DFAT, Smartraveller, Pakistan, last updated on 14 December 2018, still current as at 20 December 2018.        DFAT, DFAT Country Information Report Pakistan, 1 September 2017 [2.14].

The Tribunal asked the review applicant and the first-named visa applicant to comment on the information, specifically asking them whether the security and economic situation in Pakistan—particularly the situation for Ahmadis—was going to be a reason why the visa applicants would come to Australia and not comply with their visas.

When asked to comment on or respond to this information, the review applicant acknowledged that the information that had been outlined was correct and that Pakistan was not a very safe country. However, he said that this information was not a factor in this case because his brother had devoted his life to his religious work. He said that his brother had worked and studied very hard and that after seven years he had been promoted to the position of missionary in charge. He told the Tribunal that he was of the opinion that his brother would not change his career after so many years of hard work and commitment. When the Tribunal asked the review applicant to comment on the second-named visa applicant’s situation, he gave oral evidence that his brother had told him that he had spoken to her before marrying her because he had devoted his life to being a missionary and accordingly the family would need to move as directed by the leaders of the organisation. The review applicant was of the firm view that the visa applicants would return to Pakistan at the end of the visa period.

The first-named visa applicant told the Tribunal that he understood the law and order situation in Pakistan. However, he said that he was a missionary and that he would do the work asked of him by his religious leader and that, no matter what the conditions were, he would work as directed as he is dedicated to the cause. He told the Tribunal that he had no intention of staying in Australia permanently.

While the political, security and economic conditions in Pakistan, particularly for Ahmadis, may act as a disincentive for the visa applicants to return there, the Tribunal considers that these concerns are outweighed by the other positive aspects of this case, as discussed.   

CONCLUSION

After considering all the evidence before the Tribunal, including the visa applicants’ personal circumstances, the information about the health issues being experienced by Mr Shahid and his wife, the Tribunal considers that, on balance, the first-named visa applicant’s ‘calling’ to missionary work in Pakistan, and his wife’s agreement to missionary life act as a greater incentive for the family to return to Pakistan than for them to remain in Australia. Overall, having regard to the specific circumstances of this case, the Tribunal does not share the delegate’s concerns about the three visa applicants not meeting cl.600.211.      

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 visas would be granted, and finds that the requirements of cl.600.211 are met.

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.

Justine Clarke
Member