Sadath (Migration)

[2018] AATA 5835

Sadath (Migration) [2018] AATA 5835 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sayed Hadood Sadath

VISA APPLICANT:  Mr Sayed Maqsood Sadath

CASE NUMBER:  1800577

HOME AFFAIRS REFERENCE(S):           BCC2017/4426051

MEMBER:Brendan Darcy

DATE:14 December 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 14 December 2018 at 11:24am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – intends to stay temporarily in Australia – visiting family – significant incentives to return to home country – family – business developer – complied with previous visas – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 2 January 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 November 2017. 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 the visa applicant genuinely intends to stay temporarily in Australia for the purposes of the visa.

5. The review applicant appeared before the Tribunal on 11 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via teleconference.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

8. The review applicant was born on 18 November 1985 in Afghanistan and first arrived in Australia in August 2005 while holding a Class TU Subclass 300 (Prospective Marriage) visa. He claims that the visa applicant is his biological brother.

9. The visa applicant claimed to be born on 12 March 1984 in Afghanistan; that he is married with five children aged fewer than 18. 

10. A copy of the visa applicant’s Afghani passport issued in 2014 is on the Tribunal file which indicates the visa applicant is self-employed, that he had held several visitor visas to travel to India; visitor visas to Pakistan; a visitor visa to the Islamic Republic of Iran and a visitor visa for the Schengen area of the European Union.

11. Both the review and visa applicants claimed to have been Afghani citizens who are ethnically Tajik and that their religion is Sunni Islam.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting his family in Australia for three months. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

14. 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)).

    As the visa applicant has never visited Australia in the past, the Tribunal places no weight on this provision in its considerations.

15. 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.

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

17. In this regard, there is no evidence that the review applicant has been non-compliant with visa condition imposed on his since his arrival in Australia. The Tribunal places some favourable weight in finding the applicant genuinely intends to temporarily visit Australia.

18. With regards to the visa applicant’s international travel, the Tribunal notes that he has travelled to India, Pakistan, United Arab Emirates, Turkey, and Germany as a temporary visitor over a long period of time and there is no evidence that he has ever overstayed his visas. Had the applicant wanted to seek asylum, it was argued, the visa applicant could have taken his opportunity to do so when travelling to Germany. The Tribunal places some favourable weight on this lack of non-compliance arising from this history of international travel. 

19. The Tribunal also notes that the applicant has a spouse and five young children living in Kabul under the age of eighteen. He stated that he still has siblings in Kabul and the review applicant said the visa applicant resides in the family compound with their parents.  On the one hand, this indicates that the applicant does have substantial ongoing ties to the community in Afghanistan, but as discussed in the hearing, it is not unusual for Afghanistan citizens to seek out refugee status and to have their family migrate later based on the risky gambit they would be granted permanent residency. 

20. During the hearing, the Tribunal was surprised to learn from the visa applicant that his parents have residency rights in New Zealand and that they spent time between Kabul and New Zealand working for non-government and United Nations agencies in development and research projects. The Tribunal further learnt that the visa applicant had three of this seven brothers permanently residing in New Zealand.  The Tribunal enquired of the visa applicant that he might be more included to overstay his visa to seek permanent residency or breach some other condition on his visitor visa, given he has so many siblings residing in Australia and New Zealand.  The visa applicant insisted his ties to Afghanistan were substantial. The review applicant also stated that his parents have visited him and his family many times (which the Tribunal accepts).

21. The visa applicant also elaborated on the information he provided to the Department about his employment. In this regard, the Tribunal notes the delegate did not place much weight on the income generated through his employment of Dynamic Vision as a manager as an incentive to return to Afghanistan. However, subsequently as part of this merits review, the applicants via their agent have submitted considerable information about the nature of the visa applicant’s commercial activities. This included purchase agreements with non-government agencies, a character letter from Ministry of Agriculture, Irrigation and Livestock in Afghanistan, bank accounts in the name of Dynamic Vision and Dynamic Logistics in different currencies; salary slips; roles in a logistics and construction company; and an evaluation of traditional and tribal rugs evaluated at over 300 United States Dollars. The applicants argued the visa applicant shared ownership with Dynamic Vision with Mr Mohibullah Safi and was not merely a business development manager and that visa applicant was very entrepreneurial, requiring him to travel internationally to grow his businesses. Overall the applicants presented a convincingly picture that the visa applicant has considerable ongoing commercial assets in Afghanistan.

22. At the beginning of the scheduled hearing, the applicants submitted additional information that the visa applicant owned two properties in Nangarhar near Jalalabad from which he earned a rental income. The information had been property valuations indicating the net worth of these assets at market rates were about 1 million United States Dollars. The applicants argued this was further evidence that the visa applicant has further material ties to the community in Afghanistan,

23. The evidence, both oral and documentary (almost 80 pages), strongly suggests to the Tribunal there is evidence to support the visa applicant’s claim that he has been successful as a business developer and being self-employed and whose socio-economic status in Afghanistan would be considered comfortable or middle income and has little incentive in seeking work or study in Australia or permanent residency by overstaying his visa.

24. However, as discussed in the scheduled hearing, there are very real, both relative and absolute terms, very poor security throughout Afghanistan where economic development remains challenged by ongoing terrorist incidents and poor governance. According to DFAT, Afghanistan ranked 171st out of 187 countries in the most recent UN Human Development Index (2015), and is the least developed country in Asia. Afghanistan has significant natural resources but these remain underdeveloped due to continuing conflict, poor infrastructure and governance, and an inability to access global markets due to the country’s remote, landlocked and mountainous location. A poor regulatory environment and political uncertainty have also deterred international companies from investing to extract resources. High levels of corruption, poor institutional capacity and the continuing security situation reduce the government’s effectiveness in implementing policies and decisions.

25. According to international and domestic observers, the general security situation in Afghanistan has deteriorated in recent years. According to UNAMA, 2016 saw the highest total civilian casualties recorded since it began the systematic documentation of civilian casualties in 2009. UNAMA documented 3,498 deaths and 7,920 people injured in 2016, representing a three per cent increase compared to 2015. The increase in the number and scale of major attacks that have taken place in Kabul since the beginning of 2016 demonstrate the limits of the government’s ability to protect its citizens even in a place where its security infrastructure is strongest.

26. As discussed in the hearing, the available country information invites the Tribunal to consider that the visa applicant will be tempted to apply for a protection visa if this visa under review were to be granted. The responded that the situation, both in security and economic terms, has substantially improved in Afghanistan more generally and Kabul specifically over the last five year. The Tribunal does not accept this rose-coloured view to be accurate as it is at variance with grimness of the available country information.

27. Nevertheless and in summary, the Tribunal has remained open-minded as to whether based on the applicant’s accepted circumstances, cumulatively considered, and his ties to the community in Afghanistan are stronger countervailing factors than those enticing him to overstay a three-month visitor visa or breach any other conditions imposed on him, if the visa were to be granted.

28. While the security and economic situation in Afghanistan remains very deleterious, the Tribunal accepts that the visa applicant’s history of compliance with other visas and that there is nothing adverse to consider arising from the review applicant’s own visa history or that of the applicants’ parents who have visited Australia on a regular basis in recent years. It accepts that his community ties to Afghanistan include his spouse and any young children, that the visa applicant has significant business concerns and assets in Afghanistan that afford him a relatively comfortable life that includes international travel which are strong incentives to return to Afghanistan. Furthermore the Tribunal accesses the visa applicant’s familial ties are stronger that the visa applicant’s relatives permanently residing in Australia and New Zealand and the applicant is unlikely to risk his relatively strong socio-economic status within Afghanistan in favour of working or seeking long term residency in Australia. While the applicant belongs to an ethnic minority of Afghanistan as a Tajik, Tajiks who are Sunni Muslims (like the visa applicant) are not targeted in the same deliberate, frequent and odious manner as Hazara Afghanis who are religiously Shi’a Muslims and that it would not be balanced to over-emphasise the poor security situation in that country.  Neither is there anything about the visa applicant’s circumstances whereby he would feel to be an increased likelihood as a civilian causality. There is also no suggestion the visa applicant is unable to support himself while visiting Australia for a short finite period of up to three months or needs to work or to study in Australia. Lastly, the Tribunal also found the review and visa applicant to have presented generally consistent, reliable and plausible oral and documentary evidence.

29. For the above reasons, cumulatively considered, 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

30. 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.

    Brendan Darcy
    Member