Tehseen (Migration)

[2018] AATA 5076

Tehseen (Migration) [2018] AATA 5076 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Omer Tehseen

VISA APPLICANT:  Mr Muhammad Sulman Tehseen

CASE NUMBER:  1720968

HOME AFFAIRS REFERENCE(S):           BCC2017/2552435

MEMBER:Mary Urquhart

DATE:6 December   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 06 December 2018 at 2:05pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – not a genuine temporary entrant – purpose of visit to attend brother’s graduation – applicant’s arrival date would not allow attendance – substantial investment in brother’s business in Australia – inconsistent time period of stay requested – unstable situation in Pakistan – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 28 August 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 18 July 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 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 the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia.

5. The review applicant, Mr Muhammad Omer Tehseen, appeared before the Tribunal on 29 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Muhammad Ali Tehseen and from the visa applicant Mr Muhammad Sulman Tehseen by telephone from Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

10. 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)).

11. The applicant has not previously travelled to Australia and so the clause is not applicable.

12. 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.

13. There is no information before the Tribunal to suggest that the visa applicant would engage in any study or training in Australia. Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa condition 8201.

14. The Tribunal has carefully considered whether the visa applicant intends to comply with condition 8101, 8503 and 8531. As discussed with the review applicant, the Tribunal has to weigh up the likelihood that the visa applicant will comply with the conditions of any visa. This will depend on its assessment of the strength of his incentives to return to Pakistan balanced against the strength of incentives to seek to remain in Australia. After considering all the evidence the Tribunal concludes that on balance, and for the reasons that follow, the incentive for Mr.Tehseen to remain in Australia is greater than the incentive he would have to return to Pakistan.

15. The applicant, Mr Muhammad Sulman Tehseen, born 5 January 1983 said he is 35 years old. He is married and has two daughters. He, his wife and daughters live in a house with his parents in Lahore. He is a national of Pakistan and a Suni Muslim.

16. The applicant stated in his application that he wished to visit Australia for 3 months. At the hearing the applicant confirmed this giving clear evidence he would like to visit Australia for a “maximum of 3 months”. However he inconsistently said that he would now like a short stay in Australia.  He gave evidence that he wishes to attend his brother’s graduation and spend Christmas with his brothers. He set out preferred dates for his visit being 26 August 2017 to 28 October 2017.Those dates have passed.

17. The review applicant Mr. Muhammad Omer Tehseen is a brother of the applicant. He is aged 33. He gave evidence that he came to Australia in 2006 on a Student visa. He is now an Australian citizen. The review applicant’s evidence is that he is in a de facto relationship. He said he is in the Pizza take-away business and is the owner and operator of some 7 Franchises scattered all over Melbourne. He has a brother Mr. Muhammad Ali Tehseen also resident in Australia.

18. Mr. Muhammad Ali Tehseen, first came to Australia in 2013 also on a Student visa. He took a degree at Swinburne University in Electrical Engineering. He is the youngest son of their parents. The evidence is that he now works for Blue Frog, at Mulgrave, as an Electrical Engineer in the Design area. He married his wife some 3 years ago in Pakistan and held a further wedding ceremony in Pakistan in December 2017. All his brothers attended both events.  He is said to have “sponsored” his wife to Australia. He gave evidence that he is not committed to living in Australia. He is not a Permanent resident and is not applying to be one. He said he is here for work experience and may return to live in Pakistan in a year or two. Whilst he gave other evidence that he is very close to the applicant, he said he has not discussed this plan with the applicant.

19. The applicant’s two brothers in Australia share a rented house. The evidence is that both the applicant’s brother’s regularly visit Pakistan usually one to two times a year.

20. In determining whether the applicant genuinely intends to stay temporarily in Australia, the Tribunal has carefully considered all the evidence before it. The Tribunal accepts that the visa applicant has family ties in Pakistan given the presence of his parents, and importantly  his wife and two daughters, as well as his  grandparents and extended family. The Tribunal  has carefully considered the applicants’s strong and  close ties to his two brothers in Australia. He said he is extremely close to them.

21. The evidence is that the applicant has supported his brothers emotionally and financially in coming to study in Australia. His brother’s now wish to show him their lives, thank him and give him a break from work. It is claimed the applicant sacrificed himself by taking on the family business enabling the two other brothers to pursue study and lives in Australia.

22. The Tribunal has carefully considered the evidence that the applicant’s parents have never travelled to Australia and are not ever likely to do so. The applicant said as well that he has a sister in Pakistan and that she is settled and married and unlikely to want to visit Australia. The Tribunal has factored this evidence into its assessment. Usually having other family who may wish to travel to Australia is an incentive for a family member to abide by visa conditions so as not to put in jeopardy the travel of other family members. The Tribunal is concerned that there appears to be no deterrent of this kind in the applicant’s circumstances.

23. The Tribunal accepts the applicant is working in his family business and in his own similar business which is located next door to the family business. The Tribunal has viewed the photographs of the shops. The Tribunal notes the evidence that the applicant’s father still has involvement in the business. The Tribunal notes the evidence that many people ( some 16 or so) are employed in the businesses and can go from one business to the other as required. The Tribunal notes the evidence that the applicant would continue to draw an income (which he considers to be a handsome income) whilst on any visit to Australia. The Tribunal accepts this evidence. However the Tribunal is concerned that the applicant’s business and the income producing family business would continue to operate whether the applicant is present in Pakistan or not. As such the Tribunal affords less weight to the applicant’s employment as an incentive for him to return home at the end of any visit.

24. Of considerable concern to the Tribunal is the evidence that the applicant has given his brother, the review applicant, some “$70, $80 or $90,000” to invest in his business in Australia. Asked if the money would be repaid or if it meant the applicant was a sort of silent partner in his brother’s business in Australia, the applicant responded that culturally it was accepted that the money was a gift with no expectation of repayment. Given the evidence of this gift, the amount, the fact that no repayment is required the Tribunal  has concerns that given the stake, the applicant may be tempted to take more than a passing interest in his brother’s business, if granted a visa to visit. Added to this are the prevailing conditions in Pakistan in terms of instability and its effect on the economy and as a result the Tribunal is unable to be satisfied that the applicant would not be tempted to seek to work in Australia in breach of visa conditions if granted a visa.

25. The applicant claims to own assets in Pakistan being a house and land. The house is the house he lives in with his parents, the land is the land on which the house sits. Inconsistent evidence was given as to ownership of the house. The applicant claims it is in his name alone having been legally transferred to him in 2014. His brother Mr. Muhammad Ali Tehseen claims the house is jointly owned by his mother and the applicant. In any event assets such as property be it house or land are assets which are easily liquidated or  transferred. Money assets can be drawn down from anywhere. The Tribunal accepts the applicant may have assets and funds but finds they are not strong incentives for him to return to Pakistan. Furthermore the Tribunal finds they are not indicators that the applicant intends a genuine visit if granted a visa.

26. In determining the application the Tribunal takes into account country information concerning the political instability and volatility and the general security situation in Pakistan. The advice from the Department of Foreign Affairs and Trade (DFAT) warns against travel to Pakistan and warns that the general security and political situation there is unpredictable. The Tribunal has had regard to recent country information regarding events in Lahore. On 31 October 2018 Pakistan’s Supreme Court struck down the death sentence for blasphemy handed down to a Christian woman Asia Bibi. Violent protests broke out in Lahore with thousands of club welding protesters taking to the streets. The Tribunal also notes a reported incident in March 2018 when an explosion at a police check point in Lahore resulted in numerous fatalities and injuries. Whilst the Tribunal accepts country information that long-term security trends in Pakistan show improvements, terrorist attacks and smaller scale incidents continue to occur.

27. Whilst the Tribunal has had regard to the evidence that the visa applicant in Lahore is not personally affected by any security issues and that Lahore is in his view “a peaceful city”. The Tribunal has nevertheless formed a different view of the volatility and instability there. The Tribunal notes the advice from the Department of Foreign Affairs and Trade (DFAT) which not only warns against travel to Pakistan but indicates that the safety situation generally in Pakistan- and Lahore, though to a lesser extent, is not conducive to a peaceful existence.

28. Usually family at home provide strong reasons for an applicant to return at the end of any visit, particularly a spouse and children. However, in this review the Tribunal affords little weight to family at home as an incentive for the applicant to return. This is because of the ongoing political instability and volatility and the flow on economic effects of this in Pakistan.  The Tribunal is aware that in some instances Australia's migration laws and policies allow for family members to come to Australia if a person in Australia has been granted a visa to remain. And in this circumstance separation from close family members is but a temporary condition. The Tribunal is not convinced that when the prevailing situation in Pakistan is considered together with strong ties to his established brothers in Australia the applicant’s motivation to return to family in Pakistan is strong.

29. The Tribunal has carefully considered all the evidence of purpose of the visit and of the period sought for the visit.

30. The Tribunal has concerns with the evidence regarding how much time the applicant seeks to visit and the changes he has made regarding this. He originally sought 3 months. He repeated this at the hearing stating he would like a “maximum of three months” then inconsistently claimed other, shorter time periods. He now seeks a very short period indeed. Just weeks. In his signed statement of purpose submitted to the Tribunal at the hearing the applicant referred to a visit of three weeks. He claimed that this was due to a “few of the business commitments back in Pakistan”. No supporting evidence regarding the commitments was submitted.

31. The applicant gave oral evidence that he just wants to come quickly to attend his younger brother’s graduation, meet his brother’s new baby and then return home. Whilst the Tribunal  acknowledges that each claim for visiting is in itself  reasonable the reasonableness is undone  by significant concerns with the evidence of the applicant’s claimed need to attend his youngest brother’s graduation. Much was made of this. The evidence given includes that the graduation ceremony has been cancelled and the date changed some 4 times to try to have the applicant attend. Given all this the Tribunal finds it implausible that the applicant would predicate his whole trip on attending the graduation ceremony and then record dates of arrival that would see him arriving two days after the event as set out in his document headed “Statement of Purpose” of the visit. In that document the applicant refers to arriving “just two days before” the graduation on “19 December 2018”. Given the evidence that the graduation is set for the 17^th of December 2018 on his own evidence, the applicant would miss the event.  The Tribunal  has concerns with the credibility of the evidence regarding the applicant attending his brother’s  graduation and formed the view the evidence is included to strengthen the application. This in turn causes the Tribunal to have significant concerns as to the applicant’s real purpose in seeking to visit. This in turn leads to concerns as to the applicant’s intention to only visit temporarily.

32. After careful consideration of all of the evidence the Tribunal considers that, on balance, the visa applicant may be tempted to remain and not stay temporarily in Australia for the stated purpose of a visit.

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

34. 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

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

    Mary Urquhart
    Member