1729731 (Migration)

[2019] AATA 2485

1729731 (Migration) [2019] AATA 2485 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729731

MEMBER:Rosa Gagliardi

DATE:23 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 April 2019 at 10:45am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – purposes of visiting family – Hazara ethnicity in Quetta – not looking to  achieve long-term migration outcome to Australia – previous attempt to sponsor parents refused – elderly parents with no profile with authorities – family and business ties in Pakistan – country information indicates adverse way Hazara people have been treated in Pakistan – not satisfied on arrival in Australia applicants would not seek to change visa status – not satisfied applicants genuinely intend to stay temporarily – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 24 November 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 3 September 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 visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because he/she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 21 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and his wife].  In addition, another of the sponsor’s brother’s, [Mr A] gave evidence from [Location 1].  The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

   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 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.

8. In the present case, the visa applicants seek the visas for the purposes of visiting family; specifically his children and grandchildren in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   The hearing

9. The applicants are of Hazara ethnicity living in Quetta, Pakistan.  They have [Business 1] [in] that area.  While the sponsor’s father would visit Australia, an employee and the sponsor’s brother would take care of the [business]. 

10. The applicant and her husband have [a number of] children.  [Some] (including the sponsor) live in Australia and [some] live in Pakistan.  The applicant’s children who are to remain in Pakistan are over 18 years of age.

11. The sponsor arrived in Australia on a [temporary] visa in 2006.  The sponsor stated that his two brothers were granted Protection visas after coming to [Australia].  They applied for protection because in those days the conditions in Pakistan were very bad.  One of his brothers had been living in Islamabad and the Hazara people there were being targeted.  The Tribunal noted that the Hazara people were still being targeted and that bomb blasts occurred regularly in the area, especially Quetta.  The sponsor stated that in the past the situation had been very bad.  If you left your home there was no guarantee that you would return, but the sponsor argued that things had now improved.  The new government was going well and his parents moved around freely.

12. The sponsor stated that his parents did not want to leave Quetta as they were born there and were Pakistani citizens.  The Tribunal noted that the health system, for a start, would be better in Australia and perhaps his parents were considering their older age and attempting to reside in Australia on a long-term basis.  The sponsor confirmed that health care was not without costs in Pakistan but his parents managed.  In any event they were in good health.

13. The sponsor stated that he and his brothers sent his parents money overseas and were supporting them in accordance with custom.

14. The sponsor stated that he and his brothers would be prepared to put up their homes as security to convince the Tribunal that the applicants would return to Pakistan.   One of the sponsor’s brother [is at Location 1] at the detention centre and his other brother works at [a large business] in Victoria.  The sponsor has also demonstrated that he is well employed and has substantial savings. 

15. The sponsor stated that [one] brother was getting married in Australia in March 2019, and it would be a great moment if his parents were here then. 

16. The Tribunal also spoke to the sponsor’s brother, [Mr A], who is [at Location 1].  The sponsor’s brother reiterated that their parents were not interested in staying in Australia as they would face challenges such as the language barrier, and they would be isolated here as they do not have the extended family they have in Pakistan.  [Mr A] stated that he had no other option but to apply for a Protection visa as he was young at the time and had no future in Pakistan.  His parents were in a different situation.  His father could not adjust to life in Australia and they would not want to be a burden on the families here in Australia.  The applicants had [other] children in Pakistan as well to whom they would want to return.

17. The applicant gave evidence and stated that they only wanted to stay for a maximum of two and half a months as he had his other [children] to return to in Pakistan and they could not afford to remain in Australia for any length of time.  He could not leave his children behind in Pakistan.  The applicant’s spouse confirmed the evidence stating that they lived comfortably in Quetta and that they were not desirous of achieving a long-term migration outcome to Australia. 

    cl.600.211(a)

18. 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)).

19. The applicants have not put forward any information regarding past travel within or outside Pakistan. 

20. The sponsor himself entered Australia on a [temporary] visa in [2007]. The sponsor has also sponsored his spouse to Australia. He had previously attempted to sponsor his parents but was refused.

21. Given the concerns held by the Tribunal regarding the conditions in Quetta for Hazaras, the Tribunal would only be able to place limited weight on evidence with past compliance for travel to other neighbouring countries as a positive indication that the applicant would leave Australia at the end of the proposed stay.

    cl.600.211(b)

22. 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.

23. The sponsor at hearing was concerned that the Tribunal ought not find against his parents on the basis that they were Hazara living in Quetta and because many Hazaras living in that community have attempted to flee because of the conditions there.  The Tribunal accepts this contention.  Every applicant must be considered in light of their circumstances and profile as no two applicants can ever be exactly alike.  It is from this perspective that the Tribunal has made this decision.

24. The Tribunal accepts that the applicant runs a [a business] and even without the benefit of evidence of any savings, is prepared to accept that the business is an ongoing concern.  The [Bank] has provided a Sole Proprietorship Certificate indicating that the applicant is the proprietor of “[Business 1]” in Quetta, and that the applicant maintains an active account with the bank.  Little information about the extent of any such savings in the account has been provided however.

25. Credible documentation has been submitted to suggest that [Business 1] has been operated by the applicant since 2012.  Photographic material of [Business 1] has also been submitted.

26. The sponsor stated at hearing that in addition to the income from [Business 1], he and his brothers were financially supporting his parents from Australia and that the applicant has [other] adult children who are studying in Pakistan.  The Tribunal has sighted probative evidence of the sponsor’s financial situation which is well-above average. He works for [an agency].  His brothers are also employed and the Tribunal accepts that the sponsor and his brothers are in a position to comfortably support their parents and siblings overseas, even though the family’s reliance overseas on the sponsor and his siblings in Australia, would detract from any argument that the applicant and his family are able to make a good living from their [business], and have the means to look after their health and other needs in Pakistan without reliance on outside assistance.

27. The Tribunal has also sighted documentary evidence of the applicant and his spouse [residing] in Quetta and that they own the property and have been residing there since 2008.  The Tribunal accepts that the applicant and her spouse own their own home and that they have other modest assets such as cars, as submitted at hearing.

28. When the Tribunal queried who would look after [Business 1] during the applicant’s absence, the sponsor stated that his [brother] would go in the afternoon after his studies and that one of the employees there would also keep [Business 1] running.  The applicant rents the premises and does not own it.  Hence, in the applicant’s absence rent would be due regardless of how [Business 1] was operating.  It is also somewhat perplexing to the Tribunal that if [Business 1] was a profitable business the applicant would want to leave it in the hands of another person and entrust some of its operations to someone not within the family.  While the applicant’s son can attend in the evenings, it would appear that [Business] would largely be left to someone else to run in the absence of the applicant and his wife, and this raises concerns about the applicant and his spouse’s attachment to their source of income and to what extent they actually do rely on it to make a good living.

29. At hearing the Tribunal put to the sponsor that even if their parents’ financial situation is reasonable, the country information regarding the adverse way the Hazara people have been treated in Pakistan, and the fact that they have been targeted, including by bombings, left the Tribunal querying whether the applicant and her spouse did have a genuine intention to stay temporarily in Australia for the purpose for which the visas would be granted.

30. When these matters were put to the sponsor and the applicant and his spouse, they stated that under Prime Minister Imran Khan things had got much better for the Hazara people and they were able to move around without difficulty.  The applicant stated that he sometimes travelled to Karachi in order to purchase [materials for Business 1].  He conceded he had to be careful, but that overall things had much improved since their son (one of the sponsor’s brothers) had applied for protection in Australia.  The sponsor also stated that the Tribunal ought to distinguish the circumstances of the sponsor’s brother from those of the applicant and her husband, because his brother had been young at the time and there were no opportunities for him in Pakistan, particularly as the targeting of Hazara was intense then.  The sponsor stated that instead his parents were elderly and had no profile as concerns the authorities or anyone else in Pakistan.  They were Pakistani citizens and therefore had the same rights as other Pakistanis, despite being of Hazara background. 

31. The Tribunal accepts that the applicant and his wife wish to see their sons and families, in particular their grandchildren, and that they have a settled lifestyle in Pakistan.  The sponsor argued at hearing that they could have sponsored his parents to Australia at any time had they wanted to without needing to get them to come on a Visitor visa.  The Tribunal highlighted, however, that the Aged Parent visa involved a lengthy wait offshore.  In terms of a Contributory Parent visa this visa could be applied for if the applicant and her husband changed their status onshore.  While the Tribunal places some weight on such assurances, the Tribunal is not satisfied that on arrival in Australia the applicant and his wife would not seek to change their status meaning they would have the benefit of being onshore were they to apply for a Contributory Parent visa, for example.

    32.      The applicant has provided a statutory declaration indicating that he would return to Pakistan within the terms of his visa and that he would not breach any of his visa conditions.  The Tribunal cannot, however, dismiss the country information which, in contrast to the sanguine security outlook portrayed by the sponsor and the applicant regarding Hazaras living in Quetta and Pakistan generally, indicates that terror attacks on Hazaras have not abated and that the community continues to be at risk.  Even if the applicant and her husband were not attempting to flee from any particularised harm to them, the country information shows that the level of generalised insecurity for Hazaras in Quetta means that the threat of bombings is ever present. 

32. Hence, while Prime Minister Imran Khan has pledged to ensure the safety of Hazaras from being targeted, an article released on 16 April 2019 in the Express Tribune (Pakistan) refers to a recent bomb blast in April 2019 in Balochistan province specifically, and details the sense of disempowerment of the Hazara people there:

    This is Behisht-e-Zainab.  Here, amongst the memories of slain brethren, the Hazara have made a safe space for themselves.  Afraid of the terror that lies if they stray too far from home, they stay close to one another rand those who have gone before them.

    Behisht-e-Zainab serving as both burial ground and community centre is a stark example of the surreal existence that this community has in Pakistan.  A community that lives in constant fear of the next blast, the next strike, the annual cycle of violence.

    This year, violence came to the Hazarganji vegetable market yet again.  Nearly 20 people died this time in this site of past horrors where Hazara traders have to be escorted by armed FC personnel every day.  Where in the past Hazara vendors have been offloaded from buses and shot in cold blood.  So regularly are they targeted that their routine movement must be watched. 

    This is no way to live.  It is a denial of the basis responsibilities that a State owes to its people.  Decades of violence against the Hazara because of their Shia faith shows just how paper thin the promise of religious liberty has become in Pakistan.  It is hard to deny the State’s total abdication of responsibility when talking about the Hazara.

    Denial, though, is a close competitor with cricket as Pakistan’s national pastime.  Anyone living in Balochistan would know.  Violence in the name of religion and ethnicity in that once proud province rarely gets any attention.  But the Hazara seem to face a special brand of denial.  After the blast that took place last week, Balochistan’s Home Minister did an ostrich routine worthy of an Oscar and said no specific community was the target of the attack.  This is being said while sectarian groups rejoice at yet another strike on members of the Shia community.

    It is the Hazara that are under attack.  Enough denial.  It is the Hazara’s faith that makes them a target, the attacks on them part of a longstanding attempt to wipe out members of the Shia faith from Pakistan, or at least, force them to flee.  As the State looks the other way, the very existence of the Hazara community is at stake.

    Meanwhile, the terrorists are winning.

    According to the HRCP, over 100,000 Hazara have left their homes in Balochistan to try to find a life where it is not normal to be afraid to leave your home.  Where your daily commute to work does not involve an armed escort, and where your children do not grow up playing in a graveyard.  Thousands have in desperation tried to flee to places like Australia through treacherous paths.  Thousands have drowned in the attempt. 

    As for those who felt that other parts of Pakistan would be more welcoming, they found that the malaise was nationwide.  In Karach, their places of worship are constantly attacked, while members of the community are routinely harassed and stalked if they are brave enough to leave their home.

    The plight of the Hazara community has exposed the hypocrisy of Pakistanis.  When the attack in Christchurch, New Zealand, happened we lauded Prime Minister Jacinda Arden’s compassionate reaction.  Leaders were asked to take note and learn from her palpable grief.  While we were busy dispensing this advice, we seemed to have missed the lesson for ourselves.  As of the time of writing this piece, Prime Minister Imran Khan has still not visited the family members of the deceased.  Unlike Jacinda Arden, I have not heard him condemn the sectarian outfits, like Lashkar-e-Jhangvi, who pride themselves of ridding Pakistan of minority religious sects.

    But perhaps the biggest lesion we should have learned from New Zealand was how quickly the country mobilised to tackle the root causes of the attack.  A new law was in the works to control gun ownership, social media companies were forced to face a reckoning, and measures against hate speech were considered.  After decades of violence against the Hazara, what solutions have we implemented.  Think about it, I’ll wait.
    ……

    Of course, it is important that our leaders learn empathy as well.  As the Hazara sit-in goes on, Imran Khan is now where to be seen.  I give him the same advice he gave Nawaz Sharif in 2017 when he did not visit Quetta: “Unfortunate PM only chose to visit Bahawalpur.  Our people are in mourning in Quetta and Paracinar also.  Is ‘Nawaz Sharif’ not PM of Balochistan and FATA?”

    Well Mr Prime Minister, are you?[1]

    [1] ‘Cycles of violence, Express Tribune (Pakistan), 16 April 2019, 20190417114158, accessed on 18 April 2019.

1. A less polemical article below confirms the extent of the carnage wrought by the bombing at the Hazarganji vegetable market in April 2019:

   QUETTA, Pakistan (Reuters) - Minority Shi'ite Hazaras blocked traffic in a sit-in protest for a third day in the southwestern Pakistani city of Quetta on Sunday after a suicide bomb killed 19 people in an outdoor market, many of them ethnic Hazaras.

   Dozens were wounded in the blast on Friday on the outskirts of Quetta, capital of resource-rich Baluchistan province, officials said. Islamic State claimed responsibility.

   Hazaras have been frequently targeted by Taliban and Islamic State militants and other Sunni Muslim militant groups in both Pakistan and Afghanistan.

   "We've lost hundreds of our loved ones in the last 10 years," Tahir Hazara, leading the sit-in, told Reuters. "The government failed to protect our community. Terrorists are free to target us."

   "Stop killing Hazaras," the crowd chanted. "Down with terrorism and sectarianism."

   The protesters, who include many women and children, have set up camps and burn wood to keep warm at night. One police official said there were about 200 people taking part on Sunday, blocking the key arterial Western Bypass leading into Quetta.

   About 50 Hazaras gathered in the southern city of Karachi, some holding signs saying "Shi'ite lives matter".

   Friday's bloodshed came two days after authorities freed Ramzan Mengal, a top leader of a banned sectarian group, Lashkar-e-Jhangvi (LeJ), Quetta police chief Abdul Razzaq Cheema said.

   Mengal had been detained for three months suspected of public order offences, he said.

   The LeJ has worked both with al Qaeda and Islamic State in Pakistan and has claimed several coordinated attacks in Baluchistan against what it terms Shi'ite heretics.

   In 2013, three bombings killed more than 200 people in Hazara neighborhoods, prompting security forces to escort Hazara buses to the market. The same practice was followed on Friday, but the bomb exploded inside the market.[2]

   [2] (Reporting by Gul Yousafzai, Asif Shahzad and Akhtar Soomro; Writing by Nick Macfie; Editing by Raissa Kasolowsky), Minority Hazaras in Pakistan Protest for Third Day After Quetta Attack, 14 April 2019, Civic › World News, accessed on 19 April 2019.

2. The Tribunal has taken into account that the applicant and his wife would be leaving behind [some] children were they to remain in Australia and that these children represent an incentive for the parties to return to Quetta.  Nonetheless, given the applicant’s other children have left Pakistan, there seems to be no reason why, if their parents no longer resided in Pakistan, they too would not also seek to migrate, particularly in light of the country information which shows that regardless of how financially stable and comfortable one might be in Quetta, as Hazaras they run risks of being at the wrong place at the wrong time.

3. In terms of the applicant’s extended family being an incentive for the applicant and his wife to return to Pakistan, the Tribunal is not convinced that faced with the choice of living with their children who are established in Australia, they would not choose to remain here, over being close to their extended family.

4. On the basis of limited evidence the Tribunal has been prepared to accept that the applicant and his family overseas are able to meet their everyday financial needs.  Even so, the Tribunal places significant weight on the country information which shows attacks on Hazaras have not abated and that the state is still failing to protect them from such terrorist attacks.  The Tribunal does not accept that facing old age in Quetta is comparable with the standard of living and the security that the applicant and his wife would enjoy in Australia.

5. This decision does not mean that the applicant and his wife should never be permitted to travel to Australia.  A change in the circumstances of Hazaras in Pakistan generally, and a genuine effort by state actors to protect them and deal with terrorism could yield a positive outcome for the applicant and his wife in future.  The Tribunal would wish that it would be so.

   cl.600.211(c)

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

7. The Tribunal has also taken into account that the sponsor and his brothers are prepared to submit any amount of security (including their homes) to ensure the return of their parents to Pakistan.  The Tribunal has taken into account the sincerity with which such offers have been made, however, given the extreme nature of the security situation in Pakistan for Hazaras, the Tribunal is not satisfied that any amount of security might motivate the applicants to return to Pakistan.

   Conclusion

8. 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.

9. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend 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

10. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Rosa Gagliardi
    Member