Syed (Migration)

[2018] AATA 5763

Syed (Migration) [2018] AATA 5763 (27 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Zulfiqar Ali Syed

VISA APPLICANT:  Mr Syed Muhammad Yazdan ALI

CASE NUMBER:  1714111

HOME AFFAIRS REFERENCE(S):           BCC2017/1177634

MEMBER:Brendan Darcy

DATE:27 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2018 at 4:41pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting family – travel history outside of Pakistan – ties to community in home country – reasonable income in Pakistan – underemployment as a graduate – living outside Pakistan in recent years for work purposes – lack of any dependents – security situation in Pakistan – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15A; 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 23 April 2017 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 28 March 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 Tourist 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 decision maker was not satisfied the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted.   

5. The review applicant appeared before the Tribunal on 12 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via teleconference.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The review and visa applicants were represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. After the hearing, the applicants’ representative submitted additional documents and a written legal submission.

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

   BACKGROUND

9. The review applicant was born in Pakistan in 1966 and has subsequently migrated to Australia while holding a student visa and later became a citizen of Australia in 2007. He applied to have the delegate’s refusal decision reviewed by the Tribunal on 3 July 2017. He claims to be married with two children.

10. The visa applicant, a Pakistani national, applied to visit Australia to visit the review applicant and his family on 28 March 2017. He was born in 1 April 1986 and claimed to have worked in the United Arab Emirates where he worked as a security guard at the time of his application’s lodgement. At the time of the scheduled hearing, the applicant was residing in Lahore in Pakistan.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

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

13. 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)).

14. As the applicant has never visited Australia or applied to come to Australia the Tribunal has neither adverse nor beneficial in formation and places no weight on the considerations arising for cl.600.211(a).

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.600.611(2)):

    ·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. The Tribunal notes that the visa applicant has travelled internationally for work purposes. In particular the visa applicant has travelled to the United Arab Emirates on three occasions between April 2014 and April 2017, spending cumulatively 24 months away from Pakistan. There is no evidence the applicant has overstayed any work or any other visa which he may have held.  The Tribunal place some weight on this in finding the visa applicant will uphold the conditions on his visa.

18. The Tribunal favourably notes that there is no history of the review applicant being non-compliant with any his past visa he held before obtaining Australian citizenship or that he is not a law abiding Australian citizen.  

19. The Tribunal has considered the visa applicant’s ties to the community. During the scheduled hearing, both the review and the visa applicants claimed that the applicant had strong ties to his community in Lahore. Specifically it was argued that the visa applicant worked as a customer care manager for a retail food outlet (Fri-Chicks) where he earned a steady wage and a rental income from some property in Lahore. Submitted to the Tribunal was a copy of a letter from the director of the company stating the visa applicant was valued and would be able to resume his work after his short visit to Australia. The Tribunal notes that the applicants’ representative claimed that the visa applicant’s role is not held without some status in Pakistan. However, the Tribunal is concerned that the visa applicant who provided evidence that he qualified for a Bachelor of Commerce but has been unable to work as a professional, would not feel he was underemployed graduate who was motivated to travel to Australia to seek better working and remuneration opportunities.

20. It was further claimed that the visa applicant had siblings (one brother and six siblings) residing in Pakistan and that his parents’ graves are in Lahore. The Tribunal does not find these accepted facts as significants tie the community given the applicant has spent much time in recent years living outside of Pakistan for work purposes.   

21. While the visa applicant acknowledged that he is not married and has no children, it was claimed that the visa applicant was an active and caring as the uncle to his brother’s sons. In this regard, the Tribunal notes that the review applicant claimed he cares for one of his brother’s sick children; however when the visa applicant was asked about specific care responsibilities for family members, he stated that he often accompanies the children in public or to school but there were no sick children. Later in the hearing, the visa applicant changed his testimony arguing one of his nephews suffers from thalassemia (which is treatable depending on the severity). Overall, the Tribunal found this particular testimony to be weak and inconsistent and lacking in credibility. For these reasons, the Tribunal h considers that the applicants have attempted to embroider the visa applicant’s actual ties to the community to level where his care of one or more nephews to augment their otherwise weak claims in this regard.

22. Nevertheless and more convincingly argued was the applicants’ representative that he visa applicant earns a reasonable income in Pakistan with his combined employment and rental income. It was also argued that he has a reasonable level of savings. The Tribunal places some weight on this in the applicant returning to Pakistan without breaching any of the conditions on his visa.

23. Overall, the Tribunal finds the information, cumulatively considered, about the applicant’s ties to the community to be very strong or convincingly with particular emphasis on the visa applicant’s travel history outside of Pakistan, his underemployment as a graduate and lack of any dependents.

24. The Tribunal has also considered the country information about the ‘push factors’ in Pakistan leading to emigration. During the scheduled hearing, the Tribunal discussed with the applicants that Pakistan’s security situation, including in Lahore, was not as stable or as safe as Australia. The Australian Department of Foreign Affairs and Trade’s (DFAT) country report into Pakistan (1 September 2017) states that according to Pakistan’s Minister for Overseas Pakistanis and Human Resources Development, more than 3.4 million Pakistanis moved abroad for employment purposes in the five years to 2015, including around 1.3 million to the United Arab Emirates and 160,000 to Saudi Arabia; and that overall, DFAT assesses that the low level of development in Pakistan acts as a significant ‘push factor’ for external migration. The applicants responded that the security situation in Pakistan has significantly improved along with economy which has steadily grown. The Tribunal accepts the safety from terrorism, greater political stability and economic reform has occurred in recent times in Pakistan; however Pakistan remains a ‘low human development’ country according to the 2016 United Nations’ Human Development report with high rates of relative poverty and where terrorist outrages continue to cause needless casualties at an acceptable rate. This country information strongly indicates that the visa applicant whose ties to the community are not strong will be tempted to remain in Australia to work and remain permanently, leading him to breach one or more of the conditions imposed on his visitor visa. In this regard, the Tribunal also finds that the applicants have exaggerated the relative safety and prosperity in the visa applicant’s country of nationality.

25. Overall, the Tribunal finds there is insufficient evidence that the visa applicant has strong ties to his community in his home country. It is not convinced that the purpose of his visit to Australia is not to remain in Australia as long term resident. This assessment was reached in the context of the country information regarding Pakistan which strongly indicates there remains may ‘push factors’ in the visa applicant’s country of nationality whereby he, as an underemployed graduate, will not be strongly tempted into breach one or more of the conditions of visa to be imposed on this visitor visa under review.

26. In short, the Tribunal is not satisfied the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)).

27. 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

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

    Brendan Darcy
    Member