NOORANI (Migration)

[2020] AATA 5000

NOORANI (Migration) [2020] AATA 5000 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MOHAMMAD TARIQ NOORANI

VISA APPLICANT:  Miss Geeti NOORANI

CASE NUMBER:  1824172

HOME AFFAIRS REFERENCE(S):          BCC2018/2225771

MEMBER:Anne Grant

DATE:23 November 2020

PLACE OF DECISION:  Melbourne

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 23 November 2020 at 11:39am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – general security situation and extremist attacks – two siblings killed – previous compliant travel to another country – good job with limited leave entitlement – sole carer for mother – candid and truthful evidence – decision under review remitted

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

2. The visa applicant applied for the visa on 23 May 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 (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 they were not satisfied that she genuinely intended to stay temporarily in Australia.   

5. The review applicant appeared before the Tribunal on 29 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

6. The review applicant indicated at the start of the hearing that his migration agent was not attending and he wished to proceed without representation. 

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 applicant seeks the visa for the purposes of visiting her brother and his family who are permanent residents of Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. The information available suggests that the visa applicant has travelled to India and returned home to Afghanistan at the conclusion of her visit in 2019.  She has not held any visa permitting her to travel to Australia.  The applicant complied with visa conditions requiring her departure at the end of her permitted stay in India. 

12. 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.

13. The visa applicant gave evidence that she would abide by all or any conditions of her visa if she is allowed to visit Australia.  She wants to visit to see her brother and his family.  The visa and review applicants are the last surviving children in the family after two brothers were killed in separate extremist attacks several years ago (one in a restaurant attacked by the Taliban and another in a suicide car bomb when he was walking along the street). The Tribunal noted that this extra information might suggest a significant inducement for the visa applicant to leave Afghanistan permanently (given the security concerns and having a brother with young family in the relative safety of Australia).  In response, the review and visa applicants each acknowledged the security situation, but noted that, since the visa applicant first applied for the visa, her circumstances had changed; and the security situation in Afghanistan had been troubled for many years.

14. The applicants gave evidence that the applicants’ father died in India (where he went seeking treatment) on 9 April 2019.  At that time, the visa applicant was with him.  When he passed away, she returned to Afghanistan where she is now the sole carer for her mother.  She has a job at a telecommunications company, AFSAT, since 2018.  She gave evidence that it is a good job and not connected to any political organisation or purpose.  She agreed with the information which had been provided that she left her last job because there were security concerns, but stated there are none in this role.  Given her caring role for her mother, the visa applicant said she ‘has to’ and intends to return to Afghanistan at the end of her visit in Australia.  Also, she only has a certain period of leave she can take and would not want to endanger her employment. Subsequent to the hearing, the visa applicant provided a letter from her employer, AFSAT Internet Service Provider, confirming her full time employment since 13 June 2018 and her eligibility for one month paid leave, or up to three months unpaid leave.  The review applicant also provided information confirming their father’s death in New Delhi from multiple organ failure.  The Tribunal found both the visa applicant and the review applicant to be candid and truthful witnesses and accepts their evidence about the death of their father and two brothers and the visa applicant’s caring role for her mother; and their evidence (including the corroborating evidence provided after the hearing) about the visa applicant’s employment. 

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)). As discussed with the applicants at hearing, the reports of a  deteriorating security situation in Afghanistan and, most importantly, in Kabul itself where the visa applicant and her mother reside caused some concern to the Tribunal, as it did for the delegate.  The Tribunal also noted that over 2020 there have been some serious and devastating attacks in Kabul – including an attack on women and children in a maternity hospital (12 May 2020), and on an education centre (25 October).  It is noted that since the Tribunal met with the  visa and review applicant, a further attack has occurred at Kabul University (2 November 2020) and another on 21 November 2020 involving multiple missile attacks.[1]   The Tribunal also raised with the visa applicant that life can be difficult for single young women in Afghanistan, according to the country information generally available.  The visa applicant and the review applicant both indicated that the situation in Kabul is more ‘urban’ than in rural areas where it may be true that women have fewer freedoms.  The visa applicant said that she has a good life where she enjoys her work and is able to earn a living and move around freely in Kabul.  She noted that things are better for women than they were years ago when the Taliban was in control, and there has always been volatility in the security situation, and violent extremist attacks – but Afghans live with it.

    [1]These events have been widely reported but details can be found on these links: 

16. Both the visa applicant and the review applicant acknowledged the recent attacks and indications that such attacks are increasing in Kabul.  They noted that their family had already been dreadfully impacted by extremist violence in Kabul with the loss of two siblings, so could not deny that it has been an ongoing problem.   The visa applicant said that there are always attacks in Afghanistan, but they do not affect her as she is careful.  She added that because he is her only surviving brother, she is very keen to see the review applicant and meet his young family. The applicants both reiterated that they would not leave their mother alone and without a carer in Kabul long term.  There is no one else to care for her.   They have extended family (cousins, uncles and aunties) in Kabul but they live relatively distant from the visa applicant and her mother, and are all caring for their own families and unable to provide practical daily assistance for their mother.    

17. The Tribunal considered the guidelines as outlined in the Departmental policy and notes that decision makers must take a fair and reasonable approach and also focus on the current intentions of the visa applicant.  In essence, the volatile security situation is now the only (albeit significant) factor which suggests that the visa applicant may be induced to remain in Australia at the conclusion of her visit.  The Tribunal however notes that she now has stronger ties to Afghanistan than at the time she applied for a visa because she has full time employment and is the sole carer for her mother; and the Tribunal considers that these factors provide significant inducements for her return to Afghanistan.  The Tribunal also notes that whilst ongoing extremist actions in Kabul is a factor which might reasonably be considered to encourage the visa applicant to remain in Australia at the conclusion of her permitted stay, it is also a factor which, on one view, could be considered a strong inducement for her return - in order for the visa applicant to protect and care for her mother.

18. Taking into account the change in her circumstances, including her caring responsibilities as the only child still in Kabul and who can care for her mother, the death of the applicants’ father, the visa applicant’s employment, her previous history of departing India at the end of her visit there, and having considered the volatile security situation in Kabul, the Tribunal is satisfied that the visa applicant genuinely intends to remain temporarily in Australia and to return to Afghanistan when her holiday ends in order to provide care for her mother and also to resume her employment.

19. 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

20. 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.

    Anne Grant
    Member