1508836 (Migration)

[2015] AATA 3703

1508836 (Migration) [2015] AATA 3703 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Shanel Saba

VISA APPLICANT:  Mrs Shahnaz Noreen

CASE NUMBER:  1508836

DIBP REFERENCE(S):  BCC2015/1267698

MEMBER:Tony Caravella

DATE:19 November 2015

PLACE OF DECISION:  Perth

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 19 November 2015 at 2:46pm

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 2 June 2015 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 1 May 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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, based on the evidence available at the time of decision, that the visa applicant intended to stay temporarily in Australia for the purpose for which the visa would be granted.

5. The review applicant appeared before the Tribunal on 2 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Anan, who appeared before the Tribunal.  It also received oral evidence from the visa applicant who spoke via 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.

7. At the beginning of the hearing, the review applicant told the Tribunal that the visa applicant is her mother.  She also said she understands why the delegate rejected the visa application. 

8. The review applicant submitted to the Tribunal that Pakistan is a democratic country and there is no civil unrest.  She said people travel from other countries to visit Pakistan. 

9. The review applicant also told the Tribunal that her mother can afford to finance the visit to Australia.  She said her mother owns a house in Pakistan which is in her mother’s name.  She said her father has his own business in Pakistan involving importing and exporting rice.  She said he has operated this business for a long time.

10. The Tribunal asked the review applicant whether her mother had experienced any problems in Pakistan as a result of political or religious factors, or as a result of civil unrest which is reported widely in respect of Pakistan.  She said her mother is a Christian and her father is a Sunni Muslim.  She said it is her father’s second marriage and he has children from his first marriage who live with their mother.  She said her father is Punjabi and her mother is from Abbottabad and Urau speaking.  She said her mother used to work in a beauty salon, however she has stopped and is now a housewife.  She said the only reason her mother wants to come to Australia is to visit the review applicant and the review applicant’s family.  She said her mother could stay here two or three months.  She said that she and the family have not visited Pakistan for about 2 ½ years.  She said she has many friends from India who have been able to sponsor their parents to visit them in Australia.

11. The review applicant’s husband, Mr Anan, told the Tribunal that it is known that Pakistani has issues, including unemployment there.  He said he came to Australia from Pakistan seven years ago.  He said he is a nurse at the Fiona Stanley Hospital.  He said Pakistan is a Third World country and there are diseases and instability and there are “tussles” between the military.  He said, however, things have been improving and the government is making an effort to bring people together as they are part of the same country.  He said they, that is his family, represents the good side of Pakistan.  He said it is their commitment to ensure the visa applicant complies with all visa conditions, including departing Australia before the end of the visa period.  He said they are aware that if they do not ensure compliance by the visa applicant then this will adversely affect their prospects of future sponsorships.

12. Mr Anan submitted that the visa  applicant does not speak English and so she will be a burden if she stays too long.  He said he would not be up to support her if she stays beyond two or three months.  He submitted the visa applicant has no intention to find a job or to study in Australia and that she would not be able to stay because she does not have health insurance.  He referred to bank statements previously provided to the Department showing a lump-sum deposit in an account and explained that this was as a result of money from the proceeds of the sale of a property, a shop, in Punjab being deposited into the account.

13. The review applicant told the Tribunal that the visa applicant’s mother is deceased, however, she has two brothers and three sisters who live in various cities in Pakistan, including Peshawar, Attock City, Islamabad, and Taxila.  

14. The Tribunal spoke by telephone to the visa applicant.  She told the Tribunal that she originally applied for a visitor visa to come to Australia, and that was approved. She said however she was unable to travel to Australia at that time because an aunt had died in Pakistan and she had been looking after her.  She said she subsequently applied again but the application was then refused.  She said she did not understand why the second application was refused.

15. The visa applicant told the Tribunal that in their culture, it is not appropriate for a mother-in-law to stay in their son-in-law’s house on a long-term basis. She said she wants to see her daughter and son-in-law who she has not seen for 2 ½ or three years.  She said her daughter and son-in-law are unable to visit her in Pakistan now because her son-in-law works.

16. The Tribunal asked the visa applicant whether she is affected by civil unrest, political or religious violence, or adverse economic factors in Pakistan.  She said she is from a Christian family.  She said she has two brothers and three sisters and they do their own thing and they have no trouble from Muslims.  She said she lives in Abbottabad and there is peace there and there are no problems.

17. The Tribunal asked the applicant whether she experiences, or has experienced, any problems from the Taliban or because she is a woman in Pakistan.  She said in Abbottabad she owns some rental property and she collects the rent from these.  She said she then returns and lives in Punjab with her husband who grows rice there.  She said the property in Punjab is located in Kot Hassan Khan in Hafizabad district. 

18. The Tribunal asked the visa applicant what she intends to do in Australia.  She said she wants to visit her daughter and son-in-law and would come for one and a half months.  She said she would not stay longer because her husband in Pakistan would be left alone.

19. The visa applicant told the Tribunal that she has never travelled to any other country.  

20. The Tribunal asked the visa applicant if she has any commitments in Pakistan that might act as an incentive for her to return there.  She referred to her rental property and to her family.  She concluded by saying she promises to return to Pakistan if she is allowed to visit Australia.

21. Mr Anan told the Tribunal that the role of women in Pakistan is different to what it is in Australia.  He said the view there is generally if a woman works they are considered poor.  He acknowledged things are changing slowly but that the visa applicant is from an earlier generation and is traditional.

22. The review applicant told the Tribunal that they comply with Australian laws.  She said her mother is happily married and her father supports her.  She said it is difficult for her and her husband and child to visit Pakistan regularly because they would have to buy three tickets and it is expensive.

23. The review applicant told the Tribunal that she had previously applied, on two previous occasions, for visitor visas for her mother and father to travel together.  She said one of those applications were successful and visitor visas were granted for both her mother and father in 2012.  Mr Anan told the Tribunal that the circumstances in Pakistan haven’t changed so much since those visas were granted.

24. Mr Anan concluded his evidence by saying they have applied on a number of occasions to sponsor the review applicant’s mother to visit.  He said it was beyond their control that when a visitor visa was granted, that they were unable to take up the opportunity to travel to Australia.  He said had that occurred, that is had the visa applicant actually travelled to Australia when the visitor visa was granted on the first occasion, then they would have created a travel history which would have helped in a subsequent sponsorship.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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.

27. In the present case, the visa applicant seeks the visa for the purposes of her daughter and her daughter’s family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

28. 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)).

29. The Tribunal finds by reference to the Department’s electronic system to which the Tribunal has access, namely ICSE, the visa applicant has previously been granted a Visitor-Tourist visa on 20 November 2012.  The Tribunal however also accepts the review applicant’s evidence that the visa applicant was unable to utilise that visa at that time, as she was unable to travel to Australia because an aunt had passed away in Pakistan.  The Tribunal also finds by reference to the ICSE data base, that the visa applicant’s husband, Awan Muhammad Ahmad was also granted a Visitor-Tourist visa on 20 November 2012.  Notwithstanding, the Tribunal finds that neither the visa applicant, nor her husband, travelled to Australia utilising those respective visas.  The Tribunal therefore finds that there is no record that the visa applicant complied substantially with the conditions of her last substantive visa, or any subsequent bridging visa, and as such there is no evidence in this respect for consideration of whether the visa applicant genuinely intend to stay temporarily in Australia.     

30. 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.

31. Having regard to all of the evidence before it, and to the Tribunal’s assessment of the credible and reliable nature of the review applicant, and Mr Anan, and it’s assessment of the credible evidence of the visa applicant, the Tribunal finds the visa applicant does not intend to work in Australia, and does not intend to engage in study in Australia. Based on all the evidence before it, the Tribunal also finds the applicant intends to comply with the requirements prescribed in conditions 8503 and 8531.  The Tribunal is therefore satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.   

32. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal had regard to the Department’s policy guidance contained in its Procedures Advice Manual (PAM3) which relevantly states:

    The ‘any other matter’ factor

    Some relevant considerations

    In establishing whether 600.211(c) is satisfied, relevant considerations of any other matter may include, but are not limited to:

    ·Personal circumstances

    ·Credibility

    ·Purpose and period of stay

    ·Previous immigration/travel history

    ·Intel reports and profile.

    Personal circumstances
    Namely:

    ·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:

    ·ongoing employment

    ·the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia

    ·property, or other significant assets, owned in their home country and

    ·whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance

    and

    ·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:

    ·economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia

    ·economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.

    ·the applicant’s personal ties to Australia, that is:

    ·does the applicant have more close family members living in Australia than in their home country

    ·is the applicant subject of adoption proceedings that have not been resolved in their home country

    ·military service commitments

    ·civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.

    Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.

    Credibility
    The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).
    Purpose and period of stay
    Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).

    Previous immigration/travel history
    Previous immigration and travel history, such as:

    ·previous visa applications for Australia

    ·previous overseas travel, that is, has the applicant travelled to countries other than Australia.

    In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

    Intel reports and profiles
    Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country.

33. The Tribunal considered relevant country information in respect to the civil disruption, security, and other circumstances in the applicant’s place of residence, that it, Abbottabad.  It notes that country information indicates it is located some 60 kilometres north of Islamabad.  Radio Free Europe / Radio Liberty reports:

    Fawad Ali Shah, a correspondent for RFE/RL's Radio Mashaal in Abbottabad, says the town's reputation is not for militancy. Instead, it has a high concentration of top schools and military establishments and is the home of many retired Pakistani military officers.
    
    

    [1] - accessed 2 October 2015.

    "It is the home of the Baluch Regiment of the Pakistan Army, of the Pakistani military academy Kakul, in which the newly commissioned armed forces officers are trained, and there also are many educational institutes," Shah says. "So, basically, it is a cantonment and people living here are peaceful and the environment is peaceful."[1]

34. On the other hand, Dawn.com reports the killing of four people, said to be workers of Pakistan Tehreek-i-Insaf (PTI), being killed and another injured in a firing incident between workers of rival political parties.  The incident took place at a hotel near Abbottabad’s Fawara Chowk, where five PTI workers were targeted, reported DawnNews. Two individuals died on the spot, while the remaining three were shifted to Benazir Shaheed Hospital where two more succumbed to their injuries. It is reported that the victims were allegedly targeted for their involvement in a clash at a Nangati polling station during local bodies election on May 30.[2]

    [2] - accessed 2 October 2015.

35. The Department of Foreign Affairs and Trade Country Report – Pakistan 14 April 2015 reports, amongst other things:

    2.27 The most potent security threat in Pakistan remains the mostly-Pashtun Taliban insurgency based in the FATA and parts of Khyber Pakhtunkhwa which operates under the banner of the Tehreek-e Taliban Pakistan (TTP). The TTP represents a loose network of Sunni militants groups, originally formed in 2007. Although they are ideologically aligned, the TTP maintains an identity distinct from the Afghan Taliban, which is widely accepted to have an operational base in Quetta, the capital of Balochistan province. Open sources also suggest senior members of the Afghan Taliban have relocated to Karachi.

    2.28 The TTP has carried out a number of high-profile attacks in many parts of Pakistan against government security forces and institutions, political rivals, civilian infrastructure and against non-Sunni minorities. This has included direct attacks using small arms, suicide bombings, car bombs, improvised explosive devices and complex attacks involving a combination of these methods. For example, the TTP has conducted complex attacks against the Pakistani military’s General Headquarters in Rawalpindi in 2010, the Pakistan Naval Station Mehran in Karachi in 2011 and against Karachi Airport in June 2014.

1. The DFAT Country Report for Pakistan (14 April 2015) also states in respect of Women in Pakistan:

   3.50 There have been some prominent public role models for women in Pakistani society. For example, the late Benazir Bhutto was twice elected Prime Minister, Fehmida Mirza was Speaker of Pakistan’s National Assembly from 2008 to 2013, and Shehrbano (Sherry) Rehman held ministerial posts and was recently Pakistan’s Ambassador to the US. More broadly, women now constitute the majority of university candidates in Pakistan.

   3.51 However, violence and discrimination against women in Pakistan remains endemic and the role of high-profile women in Pakistan is generally not representative of conditions for women in general. Although they are not absent from public life, women in Pakistan tend to live in segregation from men—particularly from men outside the family. Credible sources have described an on-going ‘retreat’ of women from the public space in Pakistan. DFAT considers that women and girls are increasingly marginalised in Pakistani society.

   3.52 According to the Human Rights Commission of Pakistan, 869 cases of so-called ‘honour killings’ were reported during 2013. These are considered to be murder (qatl-e-amd) under the Pakistani Penal Code. In November 2014, four relatives of a pregnant woman were sentenced to death for their role in her murder outside the High Court in Lahore during May 2014. However, in practice, many such killings are not properly investigated or prosecuted.

   3.53 The TTP and other insurgent groups have been known to specifically target women and girls. For example, a 15-year-old schoolgirl Malala Yousafzai was shot by TTP militants in the Swat Valley in Khyber Pakhtunkhwa in October 2012 following a series of high-profile television and media interviews in which she advocated in favour of education for girls.

   3.54 There have been widespread reports of sexual violence against women in Pakistan. According to the Karachi-based War Against Rape (WAR) cited in the US State Department’s 2013 Human Rights Report for Pakistan, relatively few First Investigation Reports (FIRs) lodged by women for cases of sexual assault were presented to court. Some cases are settled out of court.

   3.55 In rural areas, particularly in many parts of Khyber Pakhtunkhwa and the FATA, traditional justice systems can be more influential than the established judicial system. In these areas, rigid cultural traditions deny women their legal rights and adequate protection from discrimination or abuse. Decisions made through these traditional systems can involve giving away women–mostly teenagers–as brides (called swara) between two disputing families.

   3.56 Successive governments have legislated to reform women’s rights in Pakistan. The Musharraf Government introduced the Protection of Women’s Rights Act 2006 which reformed elements of the Zia-era Hudood Ordinance. The Act sought to differentiate the crime of zina (sex outside marriage) and zina-bil-jabr (rape) and to reform those parts of the Ordinance by which women who reported rape may have been charged with sex outside marriage. Elements of the Act were overturned by the Federal Shariat Court in December 2010. The former PPP Government’s Domestic Violence (Prevention and Protection) Bill, introduced in 2009, sought to criminalise domestic violence throughout Pakistan. Although the Bill failed to pass the Senate in 2012, provisions of the law have been applied in the Islamabad Capital Territory and in Sindh Province. The Anti-Women Practices Act 2011 made it an offense to compel women to marry (especially “in consideration of settling a civil dispute or criminal liability” through wanni and swara) and to deprive women from inheriting property. Other legislation declared acid attacks a criminal offence punishable by long-term imprisonment and fines of up to one million Pakistani rupees. In April 2013, the Sindh provincial assembly also passed the Child Marriage Restraint Act 2013, significantly increasing punishments for those involved in child marriages

2. The Tribunal considered the evidence that the visa applicant has previously been granted a visitor visa on 20 November 2012, and that for reasons previously outlined did not travel to Australia or utilise the visa.  However, although relevant, the Tribunal considers the previous grant of a similar visa is not determinative or dispositive of the issue in dispute in this case.  What the Tribunal must be satisfied of at the time of its decision is whether cl.600.211 is met.  On the evidence before it, the Tribunal accepts the visa applicant has her husband and the majority of her family in Pakistan.  The Tribunal finds that the sponsor in this case is the visa applicant’s daughter and that the sponsor, the sponsor’s husband and children are the only members of the visa applicant’s family in Australia. 

3. The Tribunal accepts the evidence before it that the visa applicant’s husband operates a business in Pakistan, and that the visa applicant has rental property there which she appears to manage and collect the rent from. 

4. The Tribunal accepts the visa applicant’s sworn oral evidence where she swore that she has not been adversely affected by political, religious, ethnic, or civil unrest in Pakistan.  The Tribunal accepts that country information, some of which is cited in this decision record, indicates that some parts of Pakistan are worse affected than others in respect of political, religious or other violence and unrest.  The Tribunal notes, in particular, that a reliable source of country information indicates that Abbottabad is relatively peaceful.  The Tribunal finds that this is consistent with the visa applicant’s claim where she indicated she does not experience any problems in Abbottabad.

5. The Tribunal also places some weight on the evidence of the review applicant and Mr Anan in this case where they swore they will do all they can to ensure compliance so that they can build a positive sponsorship history which might assist then if and when they decided to sponsor other family members to visit Australia.  Although not going to the personal intention of the visa applicant herself, the Tribunal considers this to be relevant to the question of whether the visa applicant will actually comply with the visa conditions to which her visa would be subject. 

6. Having regard to all of the evidence, and having regard to the policy guidance in the Department’s Procedures and Advice Manual (PAM3), the Tribunal finds the review and visa applicants credible, and the purpose and duration of the visa sought to be consistent with an intention to visit family in Australia.  The Tribunal finds a number of significant factors operate in this case, including the visa applicant’s family, her husband, her property, and the relatively peaceful part of Pakistan where she resides, act as incentive for her to comply with the visa conditions and act to support a conclusion that hers is an intention to only visit Australia for the purpose for which the visa would be granted.       

7. 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

8. 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.

   Tony Caravella

   
   

   Member