Raza (Migration)

[2018] AATA 5505

Raza (Migration) [2018] AATA 5505 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kaneez Raza

VISA APPLICANT:  Mrs Sakina Sakina

CASE NUMBER:  1822311

HOME AFFAIRS REFERENCE(S):           BCC2018/4012858

MEMBER:Nora Lamont

DATE:29 October 2018

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 29 October 2018 at 8:28am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family members – genuine intention to stay temporarily –review applicant was a settled permanent resident of Australia at time of tribunal hearing – applicant has a stable family life back home – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, 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 25 July 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 29 June 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 the delegate was not satisfied that at the time of the decision that Kaneez Raza was a settled permanent resident of Australia. Further the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

5. The review applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Baqir Rezaie, who is the review applicant's Husband. The Tribunal also took oral evidence from the visa applicant Mrs Sakina Sakina in Pakistan via the telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

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 daughter, son in law and grandchildren. 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)).

    Background

11. The initial visa application was for a Sponsored Family Stream visa and the purpose of the visit was to be with her daughter as she was pregnant with twins and to visit the family. The review applicant has arrived in Australia on Subclass 100 permanent visa and at the time of decision had been in Australia for 19 months. The initial application had been made by the review applicant’s husband (the visa applicant’s son in law) and as he is the son in law he does not meet the definition of relative under Regulation 1.03. The delegate found that the review applicant was a relative under the definition however, she had only been in Australia for a total of 19 months and the delegate found she was not considered to be settled under Regulation 1.03.

12. Further the delegate was not satisfied that the visa applicant genuinely intended to stay in Australia temporarily. The delegate found that current country information about the Baluchistan region and Quetta Pakistan was negative indicating lawlessness, and ongoing upheaval. The delegate found that the applicant may not wish to return to the region and therefore may remain in Australia after the end of her visa. The delegate also found that whilst the applicant has four children in Pakistan they were not satisfied that this sufficiently demonstrated that the applicant genuinely intended to stay temporarily. 

13. The delegate also found that since the applicant has not provided details of any financial support or compliance with immigration laws in Australia or other countries the delegate could not give any weight to these factors.

    Regulation 1.03

14. Regulation 1.03 defines settled as: ‘In relation to an Australian citizen, as Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period. Departmental policy states that a reasonable period is 2 years, however it also stated that officer should be flexible in assessing the settled requirement. The Tribunal finds that at the time of the Tribunal hearing the applicant had been in Australia for 23 months and considers this to be a reasonable period of time. Therefore the applicant is eligible to sponsor her mother to visit Australia.

    cl.600.211(a)

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 applicant has never been to Australia before so the Tribunal puts little weight on this factor. However, the applicant has travelled to Iraq and Iran for holidays and has complied with her visa conditions. The Tribunal also places weight in the applicant’s favour as the Tribunal has no information that the applicant did anything other than adhere to the conditions on her visas to Iran and Iraq and returned to Pakistan prior to the expiry of their visa. The Tribunal is satisfied the applicant will comply with her Australian visa requirements.

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. Given that the applicant is being sponsored by her daughter and is coming to visit her grandchildren the Tribunal is satisfied that she is not coming to work and therefore would comply with condition 8101, Similarly, the Tribunal considers it highly unlikely that she would come to Australia to study on a long term basis as she does not even speak English.

19. The Tribunal notes the applicant has four other children in Pakistan along with a husband. One son is 14 and the other is 17. The remaining 2 children in Pakistan are adults. Her husband and adult sons work. She is a housewife and takes care of the family. She included a letter from her sister that she would look after the family while she was in Australia with her daughter. The Tribunal finds the applicant has incentive to return to Pakistan at the end of her visit.

20. The applicant’s daughter will be providing the applicant with the necessary funds to stay in Australia for the period of her visa and the applicant’s husband works full time and they rent a house which is large enough for their 3 children and the mother to live in whilst in Australia.

21. During the Tribunal’s scan of country information about the conditions in Quetta and the Baluchistan region it has identified that while it has been plagued by violence and instability in recent years security has improved. A new Chief Minister has been appointed.[1] Whilst the Tribunal does agree the region does have significant challenges the applicant and her family have no issues and have a stable family life.

    [1] >

    On balance, the Tribunal considers the sponsor’s current circumstances of having three small children under the age of 2, the need for her mother to be with her and to meet her grandchildren to be compelling.

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

23. 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.

    Nora Lamont
    Member