Raza (Migration)

[2023] AATA 2084

Raza (Migration) [2023] AATA 2084 (30 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmed Raza

VISA APPLICANT:  Miss Majida Nasir

CASE NUMBER:  2214038

HOME AFFAIRS REFERENCE(S):          BCC2022/1669091

MEMBER:Louise Nicholls

DATE:30 June 2023

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 30 June 2023 at 3:14pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – visiting brother, sister and husband – permanent resident of third country, eligible for citizenship soon – secure accommodation and part-time work – care for third country citizen son while attending university – intention for multiple visits and to join husband in future – intention to comply with conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, 600.612, Schedule 8, condition 8531

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 20 September 2022 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 12 May 2022. 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. The visa applicant provided copies of identity documents, financial documents and a statement made by the review applicant and his wife.

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 that the visa applicant had a genuine intention to stay temporarily in Australia for the stated purpose.

5. The review applicant appeared before the Tribunal on 30 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The hearing took place by video conference.

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

   Background

7. The review applicant is 42 years old and is married with two children. He is a Pakistani citizen and was previously living in the United Kingdom. He obtained an Australian Global Talent visa and has moved with his family to Adelaide. He has one sister living in Sydney with her husband. His mother and two brothers are living in Pakistan and one brother is living in the United Kingdom.

8. The visa applicant is 45 years old and is a Pakistani citizen with permanent residence in the United Kingdom. She has one son who is now 20 years old and he is a citizen of the United Kingdom. He is about to commence university studies in the United Kingdom. She has a protected long term rental property in London. The review applicant explained that such properties are highly valued due to the cost of living in London.

9. The visa applicant’s first marriage ended in divorce many years ago. She has remarried and her current husband is living in Sydney. She does eventually plan to join him but for the moment needs to continue caring for her son while he is relatively young and attending university.

   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 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother and his family members in Adelaide. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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. The visa applicant has not previously visited Australia and there is consequently no evidence of non-compliance.

14. 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.

15. The review applicant and visa applicant gave evidence that the visa applicant is intending to visit family in Australia and is hoping to spend time sightseeing in Adelaide and Melbourne and to spend time with her Australian resident sister in Sydney. There is nothing before the Tribunal to indicate that she intends to work or study in Australia.

16. With respect to any applications for other substantive visas the visa applicant gave evidence that she does not intend to apply for a substantive visa while in Australia.

17. She gave evidence that her husband is currently living in Sydney and that he is a permanent resident. However, she is not yet seeking to join him to live in Australia at the moment. Her son is 20 years old; he is a citizen of the United Kingdom and has just finished school in the United Kingdom. He has been accepted into university for a degree course in Data Science. He does not want to move to Australia, and he does not have a relationship with her current husband. She explained that he is the child of her first marriage which ended in divorce, and he does not have a good relationship with his own father who lives in Pakistan.

18. The visa applicant gave evidence she has a permanent “protected rental” council house in London and has part time employment. She wishes to continue caring for her son while he is still young and attending university. She would like to come and go from Australia in the next few years to visit her brother and sister as well as spending time with her second husband. She foresees joining him in the future but for now she has put her son’s interests first.

19. The Tribunal accepts the visa applicant’s evidence and considers she will comply with all the conditions of any visa granted.

20. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal notes that the applicant’s son is a citizen of the United Kingdom and the visa applicant is a citizen of Pakistan with permanent residence in the United Kingdom with no time limit. She will be eligible for citizenship next year.

21. The visa applicant has secure accommodation and work in the United Kingdom which will act as an incentive for her to return to the United Kingdom at the end of her visit.

22. Although her current husband is living in Australia the Tribunal is satisfied that this will not, with respect to this proposed visit, act as an incentive for her to remain in Australia for the reasons she has given.

23. The review applicant stated that he has a number of relatives living in Pakistan, including his mother and two brothers. He is aware that it is important for his sister and his other relatives to maintain a good migration history to facilitate future visits to Australia by family members.

24. 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.

25. For the above reasons the Tribunal is not 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 not met.

    DECISION

26. 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.

    Louise Nicholls
    Senior Member