Syed (Migration)

[2020] AATA 5007

Syed (Migration) [2020] AATA 5007 (21 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Fasihullah Syed

VISA APPLICANT:  Ms Nasima Aziz

CASE NUMBER:  1837414

HOME AFFAIRS REFERENCE(S):          BCC2018/4881198

MEMBER:K. Chapman

DATE:21 November 2020

PLACE OF DECISION:  Brisbane

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 21 November 2020 at 7:31pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entry – only sibling remaining in home country – comfortable lifestyle and primary carer for parents – previous visitor visa application refused – previous compliant travel by applicant to another country and by parents to Australia and another country – country information not applicable to particular circumstances – consistent and credible evidence – consequences of non-compliance for future visa applications – 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 Immigration on 11 December 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, Ms Nasima Aziz, applied for the visa on 5 November 2018. She is a national of Pakistan, now aged 50 years. 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 visa 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 she 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 assessed as not genuinely intending to stay temporarily in Australia. On 20 December 2018 the review applicant, Dr Fasihullah Syed (the brother of the visa applicant), applied to the Tribunal for review of the visa refusal decision. He provided a copy of the delegate’s decision to the Tribunal with his review application. Additionally, the review applicant lodged a written submission, from a registered migration agent, prior to the review hearing. It has been duly considered by the Tribunal.

5. The review applicant appeared by telephone before the Tribunal on 9 October 2020 to give evidence and present arguments. He confirmed that he was comfortable participating in the hearing by telephone. The Tribunal also took evidence by telephone from the visa applicant in Pakistan and Ms Amna Lateef in Australia (she is the sister of the review and visa applicants). The visa applicant utilised the assistance of an interpreter in the Urdu and English languages, confirming she was able to understand the proceedings.

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

   Evidence before the Tribunal

8. The evidence provided to the Tribunal, in summary, establishes the following facts. The visa applicant is 50 years of age and resides in Pakistan with her parents. She is their primary carer. The visa applicant’s parents are of substantial means and live in comfortable surrounds in their large family home in Karachi. The visa applicant has access to a chauffeur, she has an active social life, she participates in charitable activities, and the family residence employs various domestic assistants. The visa applicant has retired from the work force to act as the primary carer for her parents and they financially support her. The visa applicant and her parents are very happy with their present lifestyle in Pakistan.

9. The visa applicant has five siblings currently residing in Australia. Four siblings, including the review applicant and Ms Lateef, reside in this country on a permanent basis. One brother holds a temporary visa. The visa applicant has one other brother who permanently resides in the United States. Therefore, the visa applicant is the only sibling residing in Pakistan. She does so with her parents as previously outlined. The review applicant is a medical practitioner in Australia and possesses sufficient financial means to support a visit to this country from his sister.

10. The visa applicant’s parents have travelled to Australia on multiple occasions without incident. They have also travelled to the United States, where they were eligible for permanent residence. However, the visa applicant’s parents are satisfied with their lives in Pakistan and so did not take up the offer to settle in the United States. The visa applicant has herself travelled to Saudi Arabia, returning to Pakistan without incident. Of note, she was refused a visa to Australia in 2018. The review applicant contends that this was for similar reasons to the present visa refusal. He opined that both refusal decisions were examples of cursory decision making by the delegate, without taking into account the particular circumstances of the visa applicant. The Tribunal tends to agree with this contention.

11. The Tribunal raised with the review applicant portions of country information, from the DFAT Country Report Pakistan dated 20 February 2019, pertaining to the economic, security and gender specific conditions prevailing in that country. The review applicant responded that this information is general in nature and is not applicable to the particular circumstances of his sister, emphasising that she lives in comfortable circumstances in her country of nationality. On balance, the Tribunal accepts this evidence. For completeness, the Tribunal records that in her oral evidence, the visa applicant portrayed her life in Pakistan in a very positive light, raising no issues suggestive of her facing any harm in that country.

    Analysis

12. The Tribunal records that it was impressed with the fashion in which the review applicant, visa applicant and Ms Lateef delivered their oral evidence. They answered the Tribunal’s questions directly, with fulsome detail, and in a manner consistent with each other and the submitted documentary material. Accordingly, the Tribunal considers each to be a credible witness and their evidence is afforded high weight.

13. In the present case, the visa applicant seeks the visa for the purpose of visiting her siblings in Australia, including the review applicant. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

14. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). The visa applicant has not held an Australian visa before. This is a matter that weighs neither in favour of, nor against, the grant of the Subclass 600 visa to her.

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):

    ·8101 – must not work in Australia; and

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

    Discretionary visa conditions may also be imposed, however, given the delegate did not refer to these in the primary decision the Tribunal proceeds upon the basis they would not have been. Given the healthy financial position of the review applicant and his siblings in Australia, the Tribunal is satisfied the visa applicant would refrain from working in Australia and accordingly comply with condition 8101 if she were to be granted a Visitor visa. Further, given the stage of life of the visa applicant, in combination with her comfortable circumstances in Pakistan, the Tribunal is satisfied that she will not attempt to study in Australia. Accordingly, the Tribunal finds the visa applicant would comply with condition 8201 if she were to be granted a Visitor visa. These are matters that weigh in favour of granting the visa to her.

16. The Tribunal has also considered all other relevant matters as required by cl.600.211(c). As outlined, it is apparent the review applicant and his siblings in Australia have the financial means to comfortably support a visit of the visa applicant to this country. Furthermore, her parents are also of comfortable means and able to support such a visit. The Tribunal accepts that the visa applicant and her parents are happy with their lives in Pakistan. Of note, the visa applicant’s parents declined the offer of permanent residence in the United States, preferring to live in Pakistan with her as their carer.

17. Whilst the visa applicant was earlier refused a Subclass 600 visa to Australia, and the bulk of her siblings reside in this country, the Tribunal is satisfied that she intends only to visit here on a temporary basis. This is due to her present comfortable circumstances in Pakistan, her role as the primary carer for her parents who are well established there, the demonstrated history of Australian visa compliance by her parents, and the respectability of her siblings in Australia.

18. On balance, the Tribunal finds that the personal circumstances of the visa applicant suggest she will return to Pakistan if permitted to visit Australia. The Tribunal makes this finding, in large part, due to its assessment that the review applicant, visa applicant and Ms Lateef were highly credible witnesses. In particular, the Tribunal is satisfied the review applicant (Dr Syed) would be well aware that any visa non-compliance by the visa applicant would place in jeopardy future Australian visa applications made by members of his family, and he would not allow this.

19. 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

20. 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.

    K. Chapman
    Member