Shefaju (Migration)

[2019] AATA 6030

Shefaju (Migration) [2019] AATA 6030 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Mustafa Shefaju

VISA APPLICANT:  Dr Aminuddin Shefaju

CASE NUMBER:  1812278

HOME AFFAIRS REFERENCE(S):          BCC2018/1456783

MEMBER:Justine Clarke

DATE:3 October 2019

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 03 October 2019 at 4:34pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine intention to stay temporarily – previous travel to other countries with compliance to all visa conditions – incentives to stay or return – family members in Australia and Afghanistan – visa applicant travelling with spouse and two children would result in most family members being in Australia at the same time – security situation and threat of terrorist attack in Afghanistan – Australian family members’ travel to Afghanistan – visa applicant’s professional employment, salary, assets and travel opportunities – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 12 April 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 29 March 2018, the visa applicant applied for the visa. At the time of this decision, the visa applicant is a 65 year old national of Afghanistan.

3. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

4. 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.

5. The review applicant is the visa applicant’s eldest son. He is an Australian citizen, a Paediatric Registrar at the Ballarat Health Services (he explained to the Tribunal that he was second in charge at the hospital), a home owner, a husband and father to two young children. At the time of the hearing, the review applicant was anticipating the birth of his third child, due on 29 September 2019.

6. The review applicant provided the Tribunal with a copy of the primary decision. 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 intended to stay temporarily in Australia for the purpose for which the visa was granted.

7. On 18 September 2019, the review applicant appeared before the Tribunal to give evidence and present arguments. The visa applicant was available and willing to provide oral evidence by telephone from Afghanistan but, having heard the review applicant’s oral evidence and having reviewed the documentary evidence that had been submitted, the Tribunal did not consider it to be necessary. An interpreter in the Dari and English languages was available to assist the Tribunal with the hearing but did not need to be used. The review applicant was represented in relation to the review by his registered migration agent and the agent attended the hearing.

8. As noted in the primary decision, the visa applicant intends to travel to Australia with his spouse and his two daughters. The Tribunal as presently constituted also heard the reviews of those related cases, being AAT case number 1812280 (concerning the present visa applicant’s spouse); AAT case number 1812194 (concerning the present visa applicant’s elder daughter); and AAT case number 1812199 (concerning the present visa applicant’s younger daughter). These hearings were held immediately after the present case had concluded. The Tribunal received oral evidence from the review applicant’s younger brother Mr Omer Shefaju and Mr O Shefaju’s wife, Ms Shereen El-Ali—both in person—at the hearing in respect of AAT case number 1812199. Their evidence is referred to in the present decision where relevant.

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

   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. The visa applicant seeks the visa for the purposes of visiting his two sons and their families in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12. At the hearing, the Tribunal explained to the review applicant the requirements of cl.600.211 and the matters relevant to its assessment. The Tribunal told the review applicant that the primary issue for consideration was whether the visa applicant genuinely intends to visit Australia temporarily.

13. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s file as well as the oral evidence given at the hearing.

    Clause 600.211(a)

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).

15. It was submitted, in the written submissions of 16 September 2019, that the visa applicant has travelled extensively to Pakistan, United Arab Emirates, Iran, Saudi Arabia and Sri Lanka and that he had complied with all conditions for visas to those countries.

16. The review applicant gave oral evidence that the visa applicant had not travelled to, nor applied to, travel to Australia in the past. He told the Tribunal that the visa applicant has travelled to many other countries because he works with the Ministry of Health within the Afghani Government. He said that he thought that his father had travelled multiple times to Saudi Arabia, Dubai and Turkey. He thought that he had also travelled to Iran and Sri Lanka. He told the Tribunal that his father had complied with all visa conditions. The Tribunal has no reason to doubt the veracity of the review applicant’s oral evidence. To the contrary, the Tribunal found the review applicant to be a very honest and credible person.

17. In the hearing in respect of AAT case number 1812199, Mr Omer Shefaju told the Tribunal that he had first travelled to Australia as the holder of a visitor visa and that he had complied with all of his visa conditions. In that same hearing, Ms El-Ali gave oral evidence that her first contact with Mr O Shefaju had been during the course of assisting the review applicant seek merits review of the Department’s decision to refuse Mr O Shefaju a visitor visa. She informed the Tribunal that, at that time, she had been employed in a migration agent business for a named person who is, at present, a Member of the Tribunal. She gave oral evidence in support of all four family members’ proposed travel to Australia in compliance with visa conditions. Both Mr O Shefaju and Ms El-Ali impressed the Tribunal as honest and credible witnesses.

18. The Tribunal makes no findings with respect to the visa applicant’s previous compliance with Australian immigration conditions.

    Clause 600.211(b)

19. 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).

20. The Tribunal notes that the visa applicant applied under the Tourist stream rather than the Sponsored Family stream. There is nothing on the Department’s file which indicates that the delegate required a sponsorship under cl.600.224. Therefore, the conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)(a)):

    ·            8101 – must not work in Australia; and 

    ·8201 – must not engage in study or training in Australia for more than   3 months.

21. Condition 600.611(3)(b) also provides that the following conditions may be imposed:

    ·8501 – must maintain adequate arrangements for health insurance while the holder is in Australia;

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia; and

    ·8558 – must not stay in Australia for more than 12 months in any period of 18 months.

22. The Tribunal notes that cl.600.211(b) refers specifically to the conditions to which the visa ‘would be subject’. There is nothing on the Department’s file or in the delegate’s decision which states the relevant conditions which ‘may be imposed’ on this visa. In this context, and given the speculative nature of assessing whether a discretionary condition may or may not be imposed by a decision-maker in the future, the Tribunal considers that it is appropriate in the circumstances to only consider the mandatory conditions as conditions to which the visa ‘would be subject’.

23. The Tribunal discussed conditions 8101 and 8201 with the review applicant. The review applicant told the Tribunal that the visa applicant would comply with both conditions. He said that the visa applicant had no intention to work or to study in Australia, and noted in particular that the visa applicant’s English language proficiency was not at a high level and so he would be unable to secure a job and pay at a commensurate level to what he is accustomed to in Afghanistan. The Tribunal found the review applicant to be very credible so the Tribunal accepts his oral evidence.

    Clause 600.211(c)

24. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

25. The Tribunal asked the review applicant questions to ascertain the factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to Afghanistan.

26. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the visa applicant has some family members present in Australia. The review applicant told the Tribunal that the visa applicant has the following family members living in Australia: him and his wife and two children and the visa applicant’s other son Omer and Omer’s wife. He said that two of the visa applicant’s wife’s sisters also live in Melbourne.

27. The delegate expressed concern about the visa applicant’s family ties to Australia and noted further the visa applicant’s intention to travel to Australia with his wife and two daughters, stating that this would result in ‘the presence of all the family members onshore’.

28. However, the review applicant told the Tribunal that the visa applicant’s other son—Ali—and his wife and two children would be remaining in Afghanistan. He noted that the visa applicant also has two sisters living in Kabul.

29. The delegate raised country information as a general concern in the primary decision, stating, ‘I have considered the applicant’s personal circumstances in the context of the current conditions in the country of passport and residence which are significant incentives for the applicant to remain in Australia’.

30. During the hearing, the Tribunal raised with the review applicant the information about Afghanistan published with the Australian Government Department of Foreign Affairs and Trade (DFAT) on the Smart Traveller website.[1] The travel advisory states that travellers should ‘not travel to Afghanistan’ due to ‘the extremely dangerous security situation and the very high threat of terrorist attack’. The Tribunal also raised some information in DFAT’s country information report on Afghanistan, specifically the statement that ‘[n]o part of the country is entirely free from conflict-related violence, with resulting negative effects on economic development, health care and education services’.[2]

    1DFAT, Smartravller, Afghanistan, last updated on 10 September 2019, still current as at 18 September 2019.

    [2]        DFAT, DFAT Country Report Afghanistan, 27 June 2019, [2.5].

31. When asked to comment on or respond to this country information, the review applicant told the Tribunal that he did not consider that the security situation in Afghanistan would be a reason for the visa applicant to come to Australia and not comply with the visa. He told the Tribunal that his parents lived in a safe area: a compound in an exclusive area of the city. He said that Australian travellers would have a different experience of Afghanistan compared to Afghani Australians. He said that he had travelled to Afghanistan at the end of January and that Omer had returned more recently. He explained that Omer had spent a week on holiday in central Afghanistan. He also noted that one of his aunts living in Melbourne had bought a property in Afghanistan last year and that she returns frequently for holidays with her children. He said that if Afghanistan was unsafe that he and his family members would not be taking holidays to Afghanistan. The review applicant made other points in his response—including that the situation had improved since 2002 and that the economic situation had improved greatly and that there are now Afghani millionaires. Overall, his oral evidence indicated that he has detailed knowledge of the situation in Afghanistan.

32. The Tribunal notes the contents of Mr O Shefaju’s statutory declaration of 11 September 2019 and the oral evidence that he gave at the hearing in respect of AAT case number 1812199 about his recent travels to Afghanistan and his view that his parents live in a safe area and that if the situation was not safe, that his parents would not agree to him travelling to visit them.

33. Having had the opportunity of hearing the review applicant’s and Mr O Shefaju’s oral evidence, the Tribunal accepts their evidence that the visa applicant is not directly affected by the unpredictable security situation in Afghanistan. Even though the visa applicant is not directly affected by the unpredictable security situation in Afghanistan, the Tribunal is mindful that, nevertheless, it may act as a disincentive for him to return there. However, the Tribunal considers that any residual concern about the unpredictability of the security situation is outweighed by other positive aspects of this case.

34. At the hearing, the review applicant gave oral evidence about a number of the visa applicant’s personal circumstances which would encourage him to return to Afghanistan at the end of the proposed visit. He told the Tribunal that the visa applicant would want to return to Afghanistan because of his employment there. He noted that his father was a director of a hospital, enjoyed a high salary and had frequent travel opportunities. He said that the visa applicant would not be able to obtain a comparable job in Australia and that his father would be bored if he did not work. He also said that his father would want to return to Afghanistan for his family and social life there. He noted that his brother Ali has two children and he said that his father loved those children. He said that his father was in a very comfortable position, owning a few houses which are all mortgage-free.  

35. The Tribunal notes that the written submissions detail the visa applicant’s employment. Both the review applicant and the visa applicant are medical practitioners. The Tribunal accepts the validity of the submission that the profession of medical practitioner requires a high level of qualifications and skill as well as integrity and ethics. The review applicant told the Tribunal that he prides himself on his reputation and that his father would comply with the terms of the visa. The Tribunal has no reason to doubt the veracity of the review applicant’s oral evidence.

36. The written submissions also detail the visa applicant’s salary and properties owned. The review applicant has also submitted documentary evidence corroborating various claims made.  

    CONCLUSION

37. After considering all the evidence before it, including the visa applicant’s personal circumstances, on balance the Tribunal considers that his prominent position, his high income compared to most people in the country, his assets, the presence of family members in Afghanistan—particularly his son Aliullah Shefaju and his family—and his familiarity with the Afghani way of life form stronger incentives for him to return to Afghanistan than the incentive to remain in Australia with his two sons and their families.

38. 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

39. 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.

    Justine Clarke
    Member