Sultan (Migration)

[2021] AATA 229

Sultan (Migration) [2021] AATA 229 (3 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zafar Sultan

VISA APPLICANT:  Ms Samina Majeed

CASE NUMBER:  1825811

HOME AFFAIRS REFERENCE:               BCC2018/3027333

MEMBER:L. Symons

DATE:3 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 3 February 2021 at 4:05pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – visa applicant’s limited finances in home country – review applicant’s properties and businesses in Australia – intention to apply for partner visa later – decision under review affirmed

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 4 September 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 12 August 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 she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 4 September 2018, the review applicant applied to the Tribunal for a review of that decision.

5. The review applicant appeared before the Tribunal by telephone on 3 December 2020 to give evidence and present arguments.

6. During the hearing, the review applicant requested that the Tribunal contact the visa applicant by telephone so that she could give oral evidence. The Tribunal made arrangements, at short notice, for an Urdu interpreter to be available to assist the visa applicant. Several attempts were made to contact the visa applicant on the telephone number provided by the review applicant but a message was received that the telephone was turned off or disconnected. The review applicant then attempted to contact the visa applicant on WhatsApp but was unable to do so. He stated that the telephone connection was not good in the town the visa applicant lived in. The Tribunal was unable to speak to the visa applicant.

7. The Tribunal was not provided with a written statement from the visa applicant following the hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

9. 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

10. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)).

12. There is no evidence before the Tribunal to indicate that the visa applicant has travelled to Australia previously.

13. 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.

14. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that he owns a retail food business in Granville (in partnership with someone else) and a car rental business in Guildford. His income is between $150,000.00 and $200,000.00 nett per annum but was reduced during the Covid 19 pandemic. He owns two houses in Sydney which are subject to mortgages and seventy cars and vans. He has a personal bank account (with savings of between $10,000.00 and $15,000.00) and a company bank account. He buys one or two cars a week for his care hire business.

15. The review applicant gave evidence that he has been married twice. He divorced his first wife in 2017. He has three children aged 20 years, 19 years and 18 years respectively. One of them lives with him. The visa applicant is his second wife. They were married in Pakistan on 12 March 2018. She is working as a mathematics teacher and owns a private tuition centre. He later stated that she works for a tuition centre in her small town and gets a little money for her food. She has no assets other than an inheritance from her father which is shared with her mother and siblings. She has no savings other than some money he has sent her. She has no debts.

16. The review applicant gave evidence that he will pay for the visa applicant’s airfare and living expenses in Australia and she will live with him. He stated that she is a young girl and does not have any money. She does not have any plans to work in Australia. When asked what she would do when he was at work, he responded that she would hang around with him and help him with customer service. When asked whether she was planning to study or do any training in Australia, he responded that she wanted to do some studies in finance but it never happened. She wants to wait and do these studies when she comes to Australia.

17. The Tribunal raised a number of issues with the review applicant. In her application for a Visitor visa, the visa applicant stated that her stay in Australia will be self-funded. This is not consistent with the review applicant’s evidence that she is a young girl and has no money. When this was raised as an issue with him, he responded that he has sent her between $7,000.00 and $8,000.00 and this will be the money she will be relying on (to fund her stay in Australia). When asked how that would support her for 12 months, he responded that she will live with him and he will pay for all her expenses. The money she has is her pocket money for shopping.  

18. The Department of Home Affairs (the Department) and the Tribunal were provided with a number of supporting documents in relation to the review applicant’s income and assets. This included a Certificate of Registration of a Company called Zaraf Consulting Pty Ltd, a Suncorp Bank statement for Zaraf Consulting Pty Ltd and a Profit and Loss Statement for Zaraf Consulting Pty Ltd for the financial year ending 30 June 2017. The Profit and Loss Statement indicates that the Directors of Zaraf Consulting Pty Ltd were paid salaries totalling $20,000.00 for the financial years ending 2016 and 2017 respectively.

19. The Tribunal raised as an issue with the review applicant its doubts that he would be able to support himself and the visa applicant for 12 months on a salary of $20,000.00. The Tribunal also noted that the documentary evidence was inconsistent with his evidence to the Tribunal that he earns between $150,000.00 and $200,000.00 nett per annum. He responded that it (the Profit and Loss Statement) was for tax purposes and he takes money from the profits.

20. The Tribunal raised as an issue with the review applicant its concerns that the visa applicant may work if she comes to Australia particularly as he has two businesses where she can work and in view of his evidence that she can help him in his business. He responded that he already has employees. The visa applicant can hang around with him. Pakistani girls do not work and they stay with their family. Her English is not good.

21. The Tribunal raised as an issue with the review applicant its concerns that the visa applicant may study in breach of a condition of the visa if she comes to Australia particularly in view of his evidence that she wants to study finance in Australia. He responded that she is interested in doing that and, if her visa conditions allow it, she will do so. If not, she will not. They are educated people and responsible about legal requirements. She will not violate visa requirements.

22. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal had regard to the proposed length and purpose of her visit to Australia. In her application for a Visitor visa, she stated that she wished to stay in Australia for up to 12 months. The review applicant gave evidence that the visa applicant wants to visit Australia for 3 to 6 months. She wants a multiple entry visa so that she can “come and go”. When the Tribunal pointed out that her visa application indicated that she planned to stay in Australia for up to 12 months, he responded that she wants a multiple entry visa for 12 months.

23. The review applicant gave evidence that when the visa applicant applied for the Visitor visa her intention was to visit him for a while and return to Pakistan for a while until they applied for a Partner visa. She is not confident that she can live in Australia for a long time and wants to come here and see if she can. If she feels alright, she will then apply for a Partner visa. Her mother, brothers and sisters live in Pakistan and she lives with her mother and one of her brothers.

24. The Tribunal asked the review applicant what would happen to their marriage if the visa applicant decided that she does not like living in Australia. He responded that he would sell his businesses and go to Pakistan and live there with her.

25. The Tribunal asked the review applicant how the security situation and the economic situation in Pakistan has affected the visa applicant. He responded that the town she lives in has no problems in terms of security and the economy. When asked how the situation in relation to the Covid 19 pandemic has affected the visa applicant, he responded that she told him that there are no “incidents” in her area.

26. The Tribunal asked the review applicant what incentive the visa applicant has to return to Pakistan at the end of her holiday in Australia. He responded that the biggest incentive is that they have to apply for a Partner visa. They are both responsible. When asked what would happen if she came her, changed her mind and decided not to return to Pakistan, he responded that he thinks there is no chance of that happening as they are both responsible. He is a businessman, pays tax and has six people working with him. The visa applicant has to apply for a Partner visa and if she “plays up” with the Visitor visa it will impact on that. They cannot lose big things for small things.

27. The review applicant gave evidence that if the Department requires a security bond, he is prepared to lodge one of between $20,000.00 to $30,000.00.

28. The Tribunal discussed with the review applicant country information in relation to the security, political and economic situations in Pakistan. The Tribunal also referred to the high infection rates for Covid 19 in Pakistan. The Tribunal raised as an issued with him the fact that these were strong incentives for the visa applicant not to return to Pakistan. He responded that this is true in Pakistan but she lives in a small town and her town has no problems. She lives a simple and peaceful life in her town. He stated that women in Pakistan do not go out. She is his wife and has not seen him for a while. She just wants to come to Australia and “have a look”.

29. The Tribunal raised as an issue with the review applicant its concerns in relation to whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the Visitor visa is granted. The Tribunal noted that if she intends applying for a Partner visa this indicates that it is her intention to live in Australia permanently. He responded that she is an educated person (she has a Master’s degree in Computer Science) and they are both responsible citizens. He has been living in Australia. If she “plays around” with her Visitor visa it will impact on her application for a Partner visa.

30. In an undated written statement to the Tribunal, the review applicant stated that he runs a retail business, is unable to travel to Pakistan to visit his wife and there is no one who can cover for him in his absence. They are newly married and want to spend some time together. He will be responsible for her expenses, make sure she complies with Australian immigration laws and returns to Pakistan on the expiry of her visa. 

31. Having considered all the evidence, the Tribunal accepts that the visa applicant has a Master of Computer Science degree from a university in Pakistan. The Tribunal accepts that she does some work at a tuition centre in her town tutoring in mathematics and earns a small income. The Tribunal is not satisfied that her employment would provide an incentive for her to return to Pakistan particularly when compared to the job opportunities and income she could earn in Australia with her tertiary qualifications despite her English language skills.

32. The Tribunal accepts that the visa applicant’s father has passed away and that he left his house and some land to his wife and all his children. The Tribunal is not satisfied that this would provide an incentive for the visa applicant to return to Pakistan. The Tribunal accepts that her mother and siblings live in Pakistan and that this would provide her with some incentive to return to Pakistan. However, the Tribunal is not satisfied that it is a strong incentive in view of her decision to marry a man who is an Australian citizen, has three children in Australia and owns two houses and two businesses in Australia.  

33. The Tribunal does not accept that the review applicant will sell his businesses and return to live in Pakistan with the visa applicant if she does not want to live in Australia in view of his reluctance to even close his businesses for a short break or leave them in the care of someone else whilst he visits the visa applicant in Pakistan. The Tribunal also notes that he has three children who live in Australia and one of them lives with him. He also owns two houses in Australia. These are strong incentives for him to remain in Australia.  

34. The Tribunal has considered whether the prospect of applying for a Partner visa in the future will ensure that the visa applicant complies with the conditions of the Visitor visa so as not to jeopardise that application. The review applicant’s evidence is that the visa applicant has not applied for a Partner visa. This is despite the fact that they were married on 12 March 2018. She has, however, made two applications for Visitor visas. The review applicant’s evidence is that the first visa application was refused because the Department was not satisfied that they were in a genuine marriage relationship and the second visa application was refused because the Department was not satisfied that the visa applicant has property and money.

35. The review applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 4 September 2018 which indicates that the (second) Visitor visa application was refused because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal is not persuaded by the assurances given by the review applicant.

36. The Tribunal has considered whether the payment of a security bond will ensure the visa applicant’s compliance with visa conditions but is not satisfied that it will.

37. For the above reasons the Tribunal is not 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 not met.

    DECISION

38. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    L. Symons
    Member