Nazir (Migration)

[2021] AATA 887

Nazir (Migration) [2021] AATA 887 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tamour Nazir

VISA APPLICANT:  Mrs Nasreen Kausar

CASE NUMBER:  1818711

HOME AFFAIRS REFERENCE(S):          BCC2018/1683062

MEMBER:Linda Holub

DATE:10 March 2021

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 10 March 2021 at 5:52 pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – immigration history – Partner visa application refused – pending Contributory Parent visa application – previous compliance with visa conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 12 May 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 16 April 2018. 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.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia for the purposes for which the visa was granted.

5. The review applicant appeared before the Tribunal on 10 March 2021 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant and the review applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

BACKGROUND

1. The review applicant was born in August 1990 in Pakistan. The visa applicant is a citizen of Pakistan and was born in April 1968. She is the mother of the review applicant and late husband was an Australian citizen. A copy of her husband’s death certificate showing that he passed away in June 2017 was provided to the Department. Her children are Australian citizens,  five of whom live in Australia. Her youngest daughter, who is also an Australian citizen lives in Pakistan with her. At hearing the Tribunal was told one of her sons resides with her in Pakistan temporarily because the cultural and religious restrictions applying to women living on their own.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

10.  In the present case, the visa applicant seeks the visa for the purposes of visiting her children. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

11.  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 (cl600.211(a)). In a submission to the Department dated 13 April 2018, it was submitted that the visa applicant travelled to Australia on three previous occasions. She visited Australia from 13 September until 12 December 2009; from 27 July to 27 October 2010 and from 13 February until 21 April 2013. On each occasion she travelled on Visitor visas. The submission states that she was refused Visitor visas in January, May and August 2016 and in June 2017. Her application for a Subclass 309 Partner visa was refused on 30 November 2015. Departmental records confirm this migration history. 

12.  The submission states that the applicant has lodged a Contributory Parent (subclass 143) visa. A copy of a receipt dated 4 January 2018 shows payment for the visa application.

1. 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.  The visa applicant provided the Department with an undated letter from the review applicant stating that he had invited his mother to visit him and to celebrate Eid-Ul-Fitar with the family. He stated that the visa applicant would stay with him for the duration of her stay in Australia and that he would pay for her living expenses. He provided evidence of his employment and his financial position showing that he is able to meet the expenses. At hearing the review applicant stated that he works for the same company but has been promoted to a leading hand position. He stated his wife also works for the same company. He stated that he and his wife rent their house and that he has a car.

15.  In her application, the visa applicant declared the review applicant and all her other children will provide her with all accommodation and will cover all her other expenses during her stay in Australia. This was confirmed in oral evidence at hearing.

16.  Submissions were also provided to the Department by the review applicant’s siblings in support of the application. The review applicant and his sister explained that their father married his first wife in 1971 and they formally divorced in 2007.  Most of the time they lived in Australia, but their father also spent a lot of time in Pakistan. They stated that under Pakistan law and in the presence of and with the permission of his first wife, their father married his second wife in 1985. The lived in one house until his first marriage fell apart. After the divorce with his first wife, they came to live in Australia together with their siblings and were granted Australian citizenship by grant.  They referred to the visa applicant travelling to Australia in 2009, 2010 and 2013 but that since she was refused a Partner visa, she has been refused a number of Visitor visas.

17.  The Tribunal was told that the family has lodged a Contributory Parent visa application on behalf of the visa applicant. The Tribunal explained that this raises concerns regarding the visa applicant’s intentions of remaining in Australia temporarily. The review applicant’s sister stated the Visitor visa is their last option at this time because the visa applicant was refused a Partner visa and the Contributory Parent visa takes many years. She stated that the visa applicant did not see her husband before he died and has not had the opportunity to pay her respects at his grave. Furthermore, she has not seen her children for some years.  

18.  The Tribunal was told that the visa applicant has not had any problems in Pakistan because of her religion or ethnicity or because of the political security situation and that the visa applicant lives in a quiet place.

19.  The visa applicant stated that because her younger daughter is very attached to her she lives with in Pakistan even though she is an Australian citizen. She explained that she does not want her daughter to be disadvantaged because of that. The visa applicant confirmed one of her sons is living with her temporarily.

20.  The visa applicant stated that she has property in Pakistan including her own house as well as land for two shops and a car. She stated that her son sends her money regularly.  She stated that  if she gets the visa, she will comply with the visa conditions as she has done in the past. She stated that if she is granted a permanent visa she would like to live in Australia: 

21.  The review applicant’s sister stated that the family wants to clear the visa applicant’s migration record.  She stated that the reasons for the visa applicant to remain in Australia are the same as those that existed previously when she came to Australia before, but she did not remain in Australia on those occasions. The Tribunal put it to her and the review applicant that an added incentive for the visa applicant to return to Pakistan, was because their father was spending time there. The review applicant responded that their father was doing so because the visa applicant had been refused a Partner visa.

22.  The Tribunal was told that the family situation is highly unusual, but the family has no intention of the visa applicant breaching her visa conditions.  They want her to be able to come to Australia to visit them until she is granted the Contributory Parent visa. The Tribunal was told that the review applicant’s sister and her husband paid a bond of $15,000 when her mother-in-law came to Australia and they would be prepared to do the same for the visa applicant.

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

Findings

24.  Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for up to three months for the purpose of visiting her children and  their families. The Tribunal accepts that the visa applicant’s children will fund the cost of her airfare and that she will stay with them and they will cover the cost of her living expenses while she is in Australia.  The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia.  

25.  While the Tribunal recognises that having previously lodged a Partner visa application and having lodged a Contributor Parent visa application indicates that the visa applicant wishes to reside in Australia, the fact of her wanting to do so does not necessarily mean that she will breach the conditions of a Visitor visa should it be granted. The Tribunal has put significant positive weight on the fact that the visa applicant did not breach her visa conditions when her husband was alive.  Furthermore, the Tribunal considers there is an incentive for her to return to Pakistan consistent with the visa requirements of the Visitor visa in the light of the Contributory Parent visa application.  The Tribunal accepts that the visa applicant’s home and property and the prospect of a Contributory Parent visa application are sufficient incentives for her to return to Pakistan after her visit. Condition 8503 refers to entitlement and does not require compliance. 

26.  The Tribunal has had regard to the family’s preparedness to put down a bond. The Tribunal considers that the Department should require a bond and, on that basis, the Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

27.  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.

DECISION

28.  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.

Linda Holub
Member