Shaheen (Migration)

[2024] AATA 1936

Shaheen (Migration) [2024] AATA 1936 (7 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Ms Shakeela Shaheen
Mr Osama Ahmed

VISA APPLICANT:  Mr Mubashir Ahmed

CASE NUMBER:  2306005

HOME AFFAIRS REFERENCE(S):          BCC2023/1087746

MEMBER:Sean Baker

DATE:7 June 2024

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 07 June 2024 at 1:51pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting sister and nephew – genuine temporary entrant and compliance with conditions – no previous travel – ties to home country – changed circumstance from time of visa application – wife will remain in home country with recently-separated adult child – farm business, employees and residential properties require ongoing involvement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 24 February 2023 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 February 2023. 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 Tourist stream.

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 applicant had demonstrated only limited ties to his home country.

5. The review applicants appeared before the Tribunal on 30 May 2024  to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his family in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

9. 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)).

10. The visa applicant has not held previous visas and so I am unable to assess his compliance. This weighs neither positively or negatively for the visa applicant.

11. 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:

    ·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.

12. The review applicants said that the visa applicant would comply with conditions. I found the review applicants entirely credible and I accept their assurances that the visa applicant would comply.

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

14. At the hearing the review applicants confirmed that the visa applicant would not be travelling with his wife. They explained that the reason for this is that one of the visa applicant’s adult daughters has recently separated from her husband and is living at the family home. The visa applicant’s wife will remain in Pakistan with her separated daughter.

15. The review applicants discussed the business of the visa applicant. He owns a farm of 50 acres close to the city in which he lives. He employs workers who would be able to look after the farm whilst he is in Australia. They referred to the documents provided which demonstrate that the farming business is a going concern. They noted that the visa applicant also owns residential properties.

16. The review applicants explained that the visa applicant was anxious to visit the review applicants; his sister, Ms Shaheen, and his nephew, Mr Osama Ahmed. They said that the visit would be for approximately a month.

17. How long would the visit be for? Around a month? Mainly to visit us and meet myself and my mother, may be a family reunion.

18. I have had regard to the testimony of the review applicants. I have also had regard to the documents provided, including a tax return for the visa applicant from 2022, documents in relation to his properties, and evidence of recent sale of livestock. I accept that the visa applicant has an ongoing farming business which he is actively engaged in, as well as residential properties. I consider these to be strong financial incentives for the applicant to return, given that they require his ongoing involvement and that they would be difficult to liquidate without the applicant present and running the farm in Pakistan to do so.

19. However, the most significant factor indicating that the visa applicant has a genuine intention to stay only temporarily is that his wife and separated daughter will remain in the family home in Pakistan. This is a changed circumstance from the time of visa application when the visa applicant intended to travel here with his wife. I consider that this is a strong tie which will indicate the visa applicant will return to Pakistan at the end of his planned visit to Australia.

20. 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

21. 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.

    Sean Baker
    Member