Saeed (Migration)

[2017] AATA 92

Saeed (Migration) [2017] AATA 92 (9 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kamran Saeed

VISA APPLICANT:  Mr Irfan Saeed

CASE NUMBER:  1605182

DIBP REFERENCE(S):  BCC2016/242332

MEMBER:Linda Holub

DATE:9 January 2017

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.

Monday, 9 January 2017 at 3.53 pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Pakistan – Sponsored Family stream – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Previous overseas travel – Ownership of businesses in Pakistan – Dependants in Pakistan – Political and security situation in Punjab

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 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 31 March 2016 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 16 January 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 considered that the ongoing political and sectarian violence and terrorism in Pakistan “may encourage the applicant to remain in Australia after the expiry of any visa should it be granted”[1].  Further, the delegate was “not satisfied that the presence of these remaining family members [ie, the applicant’s wife and three dependent children] sufficiently demonstrate that the applicants intends a genuine visit to Australia”[2]

   [1] AAT file, folio 2, page 2.

   [2] Ibid. folio 2, page 2.

5. The review applicant appeared before the Tribunal on 4 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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

BACKGROUND

1. The review applicant is the visa applicant’s brother.  He was born in Pakistan on 16 August 1976 and is an Australian citizen.  He is employed as the senior internal auditor with the Thorn Group Ltd, although at the time of application he was self-employed as an accountant.  He came to Australia in January 2009 on a Sub-class 136 Skilled independent visa.

2. The visa applicant was born in Lahore, Pakistan on 3 April 1972.  He is married and has four children born in 2003, 2005, 2008 and 2013 respectively[3].

   [3] DIBP file, folio 7.

3. The visa application indicates that the visa applicant will self-fund his travel and that the review applicant/sponsor will provide accommodation and additional support during the visa applicant’s proposed stay in Australia.

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 his brother and his family.  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 travelled to Australia, nor has he previously applied to do so.  At hearing, he advised the Tribunal that he had travelled to Singapore and Thailand in 2003 and to Dubai in 2015.  He went to Dubai to visit his sister who is a doctor and to Singapore and Thailand for a vacation staying for a week or two.

14) The visa application referred to the fact that the review applicant’s mother and sister-in-law have both travelled to Australia.  His mother came on a Visitor visa on 9 October 2015 and departed on 6 December 2015.  Her visa was valid until 9 October 2016.  His sister-in-law’s visit coincided with one of his wife’s pregnancies.  She came on 11 February 2014 on a Visitor visa which was valid until 11 February 2015.  She departed on 20 September 2014.

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) In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for the visit to Australia.  The review applicant stated that he, his wife husband and two young children live in a three bedroom townhouse which he is renting and has sufficient room for his brother to stay while he is in Australia.  He said that his brother has a friend and cousin in Canberra and Newcastle, so will also spend a bit of them with them.  He said that the visa applicant will pay his own airfare and cover his own expenses but that he would provide the accommodation.  He expected that his brother would bring between $5,000 - $6,000 with him to do shopping and to buy gifts.  The visa applicant confirmed this but stated that he hoped to bring about $10,000 with him.  The Tribunal did not consider the difference in the stated amount of funds the applicant would travel with as being significant.

17) The review applicant earns $120,000 per year plus superannuation.  He said that his wife is not generally in paid employment, but that last year she did some seasonal tax accounting work from July to October.  She is studying for her CPA and cares for their two children.  He stated that he has approximately $30,000 in savings.  He has a car but no other assets in Australia.  He owns a home in Pakistan.

18) The visa applicant owns a property and construction business in Pakistan as well a tyre business.  He has owned these for approximately 20 years.  He employs between 10-20 workers.  The Tribunal was provided with valuation certificates and other documents in respect of a number of commercial and residential properties owned by the visa applicant[4].  Copies of documents showing the visa’s applicant’s bank deposits were also provided[5].

[4] AAT file, folios 28, 29, 32, 33.

[5] AAT file, folios 36- 39.

19) The review applicant stated that the visa applicant has no intention of working or studying or undertaking any training in Australia.  This was confirmed by the visa applicant.

20) In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of the proposed visit to Australia. The review applicant gave evidence that the visa applicant wishes to travel to Australia to spend time with him and to meet his wife and children.  The review applicant visited Pakistan in 2014, but travelled alone at that time.

21) The Tribunal discussed the incentives for the visa applicant to return to Pakistan and the incentives for him to remain in Australia The review applicant referred to the visa applicant’s business interests and young family as the main incentives for him to return.  While the visa applicant employees staff, he is a sole trader and therefore, while he can leave the business for up to 4 weeks, he cannot leave it for longer than that.  He also talked about the visa applicant’s lifestyle in Pakistan and that he would not be able to replicate that in Australia.

22) Similarly when discussing the incentives for him to return to Pakistan, the visa applicant referred to his businesses and his family.  He is a Sunni Muslim but is not very religious and has not experienced any problems in Pakistan because of the political or security situation there.

23) The Tribunal has considered the most recent Country Information Report provided by the Department of Foreign Affairs and Trade in respect of the security situation in Pakistan.  Of particular relevance is the following extract:

2.28 Pakistan continues to face security threats from terrorist, militant and sectarian groups. Since the commencement of the assertive counter-terrorism military operation Zarb-e-Azb in June 2014, however, military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. This trend increased over the course of 2015. Credible sources have reported a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015. Militant groups – particularly the Tehreek-e Taliban Pakistan (TTP) – are divided and disrupted, and no longer have access to safe-havens in Khyber and North Waziristan Agencies. The Pakistan Military has indicated an intention to remain in North Waziristan for some years to come. However, DFAT understands that militant sleeper cells remain in many urban centres and continue to target state and civilian infrastructure. The rugged terrain and porous borders in Pakistan’s tribal areas and between Pakistan and Afghanistan present ongoing challenges for maintaining security and enforcing the state’s writ.

2.30 The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence[6].

[6] DFAT Country Information Report, Pakistan,

24) The Tribunal put significant weight on paragraph 2.30, in particular because the visa applicant is from the Punjab region.

25) The Tribunal discussed with the review applicant the possibility that bond may be required. The Tribunal established that the applicant understood what this meant and the implications should the conditions not be met.  The review applicant indicated that he would be prepared to pay up to $30,000, if required.  He expressed absolute confidence that his brother will return.  He noted that two of his family members have travelled to Australia and as he has a large family, he wants other family members to have the ability to do so.  The Tribunal established that the visa applicant was aware of the possibility of a bond being required and that he understood the implications if he breached the conditions of his visa.

26) Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for up to 4 weeks for the purpose of visiting his brother and his family.  The Tribunal accepts that the visa applicant will pay for his own airfare and his expenses while in Australia and that the review will provide accommodation during the visa applicant’s stay in Sydney and that friends and other family members will so when the visa applicant’s visit them. The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia. The Tribunal accepts that the visa applicant’s family and business interests are significant incentives for him to return to Pakistan.  The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

27) The Tribunal gave significant weight to the fact that the review applicant travelled to Australia on a skilled migration visa and that two of his relatives have travelled to Australia and abided by their visa conditions.  The Tribunal also took account of the DFAT Country Information Report in respect of the security situation in Pakistan, particularly in the Punjab.

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

29) 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

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.

Linda Holub
Member