1811419 (Migration)

[2020] AATA 3302

1811419 (Migration) [2020] AATA 3302 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811419

MEMBER:Jane Marquard

DATE:24 June 2020

PLACE OF DECISION:  Sydney

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 24 June 2020 at 5:22am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – visa applicant’s previous compliant visits to other countries – visa applicant does not speak English – first visit to grandchildren – security situation in Pakistan – husband and family responsibilities in Pakistan – social and community connections in Pakistan – property ownership – character of the applicants – offer to provide a surety – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 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 Department of Home Affairs (the Department) on 12 March 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant is a citizen of Pakistan. She is aged [age] and lives in Quetta, Balochistan. The review applicant is her daughter, an Australian citizen.

2. The visa applicant applied for the visa on 29 January 2018. 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 of the Department 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 applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

5. The review applicant and visa applicant attended a telephone hearing before the Tribunal on 9 June 2020. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. As the telephone line with Pakistan was poor, the visa applicant agreed to provide some of the answers to questions raised by the Tribunal member in writing, which she did after the hearing.

6. Taking this new evidence into consideration, and 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 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 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)). In this case, the visa applicant has not travelled previously to Australia, so the question of previous compliance is not relevant.

9. The Tribunal has however taken into account the fact that the visa applicant has travelled to [Country 1] on a number of occasions to visit her children and grandchildren. She has also visited [Country 2]. She has complied with her visas in those countries and returned to Pakistan at the end of the visits. While it may appear more attractive to migrate to Australia than [Country 1] or [Country 2], given various security issues in those countries, the Tribunal has nonetheless taken into account her compliance with these visas, given that she has children and grandchildren in [Country 1], and the fact that if conditions in Quetta were poor, she may well have wanted to stay with her children in [Country 1].

10. 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 may 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

11. The visa applicant is [age] years old and does not speak English or have any qualifications. Given the assurances of compliance, which the Tribunal accepts, as discussed further below the Tribunal is satisfied that the visa applicant intends to comply with visa conditions and would not work or study in Australia.

12. The Tribunal has also considered other relevant matters (cl.600.211(c)) in determining whether it is satisfied that the visa applicant genuinely intends to stay temporarily for the purpose for which the visa is granted.

13. Firstly, the Tribunal has taken into account the purpose of the visit, and the proposed duration of three months. Visiting family is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222. When the visa applicant applied for the visa in 2018 she sought the visa to travel to Australia to see her daughter and son-in-law, and attend the birthday parties of her grandchildren, whom she had never seen. A letter from the Principal of [a named] School provided a letter to the Department in which he said that [the named children] were students at the school. It had come to his attention that they had never seen their grandmother and there were plans to bring her to Australia for a birthday party [in] March 2018. He said that in the opinion of staff it would be beneficial to their wellbeing to spend time with their grandmother. An invitation to the birthday party was also provided to the Department. The review applicant told the Tribunal in written submissions that the visa applicant wishes to ‘foster social-emotional bonding’ with her daughter’s family. At the time of review, the review applicant and her family had been to visit the visa applicant in Pakistan, but they reiterated their wish for her to visit and see their home in Australia. She said that it demonstrates their level of commitment that they are still trying to get her to come and visit them as they have no other family members in Australia. She said that she and her children loved seeing the visa applicant in Pakistan and they want to show her their house and life in Australia.

14. The Tribunal is satisfied that visiting and spending time with children and grandchildren in their home environment is a genuine purpose, and the timeframe accords with the expressed intention for the visit to be a time with family.

15. Secondly, the Tribunal has also taken into account both disincentives and incentives to return to Pakistan. The Tribunal had a number of concerns about whether the applicant would want to remain in Australia permanently given the economic, political and security situation in Pakistan generally and Quetta specifically. The Tribunal notes that the review applicant was granted a Global Special Humanitarian Visa (XB 202) and her husband was granted a protection visa. According to the Department of Foreign Affairs and Trade (DFAT), the security situation in Pakistan is complex and volatile, and ‘affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.’[1]

    [1] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 20 February 2019, pp.18-19; >

    The DFAT Report goes on to state in regards to Balochistan that ‘the security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354).’[2]

    [2] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 20 February 2019, pp.18-19; >

    The DFAT Report states that the government’s national Multidimensial Poverty Index (MPI) classified nearly 39 per cent of Pakistanis as living in multidimensional poverty in 2016. The overall figure masks significant regional variation in poverty incidence, ranging from over 70 per cent in former FATA and Balochistan,[3]

    [3] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 20 February 2019, pp.18-19; >

    There are also specific security issued for Hazaras. According to the Weekly Pulse, in October 2011 Lashkar-e-Jhangvi (LeJ) “distributed an open letter in Quetta essentially declaring war on the Hazara Shia community”.[4] The Kashmir Monitor similarly reported that LeJ had circulated an open letter addressed to Hazaras in Quetta.[5] According to DFAT, ‘Hazaras in Quetta have been the subject of numerous sectarian attacks, including drive-by shootings, improvised explosive devices, suicide attacks and complex attacks. Sunni sectarian group Lashkar-e-Jhangvi (LeJ) has claimed responsibility for most of these attacks’.[6] DFAT noted that general security conditions have deteriorated in Balochistan in recent years, compounding increases in targeted sectarian attacks against Hazaras, and rising incidents of kidnapping for ransom. While some Quetta-based Hazaras had opted to relocate to other areas of Pakistan, some Hazara community leaders “suggested to post that these journeys are not without their own security risks, and that Hazaras face similar security problems in all cities in Pakistan”.[7]

    [4] Weekly Pulse, The widening specter of sectarian militancy, 9 March 2012,

    [5] The Kashmir Monitor, Blood flows freely in Pakistan, 6 October 2011,

    [6] DIAC Country Information Service 2012, Country Information Report No.12/20 – Hazaras in Pakistan, (sourced from DFAT advice of 1 & 9 March 2012)

    [7] DIAC Country Information Service 2012, Country Information Report No.12/20 – Hazaras in Pakistan, (sourced from DFAT advice of 1 & 9 March 2012)

16. The Tribunal questioned the review applicant about why the situation for the visa applicant in Pakistan would be different to her situation or that of her husband, who was granted a protection visa. She was also asked to comment on the complex and volatile political and economic situation in Quetta, particularly for Hazaras. She acknowledged the country sources were correct. However she said that the visa applicant would never leave her husband as they have spent so long together. She said that ‘at this stage of life’ they could not be apart, and this is the most significant incentive for her mother to return, along with the presence of her other children in Pakistan. The review applicant indicated that her husband worked with [an international agency] in Afghanistan and this led to threats against him and his application for protection. She said that although the security situation for Hazaras in Quetta has varied over the years, for the last few years it has been stable. The review applicant also agreed that there are many problems in Pakistan but said that not everyone is poor. She emphasised that her mother is economically stable with a large house and rental income. Her father was a government employee and her [sibling] is also a government employee. She said that the situation in Quetta is currently politically stable and there have not been recent security issues, and for now Hazaras are safe. She said that she and her family visited Quetta recently, and it was ‘fine’.

17. The visa applicant said when asked about this issue:

    ‘I am a traditional housewife. I do not have interest in the political and economic condition of the country. I am aware that the law and security situation of Quetta for Hazaras has been good and bad in the last few years. The security situation fluctuates. The Hazaras have always been peaceful. In relation to the economic situation of Hazaras they are rich and poor people. However many families rely on the financial support of their members who are outside Pakistan. I am financially stable. I am able to bear the cost associated with my overseas travel. I have my own house and do not owe money from any individual or institution. I am very much satisfied with my life and my current circumstances. I would like to use every available opportunity to spend time with my family members both inside and outside Pakistan. I strongly feel socially and emotionally connected with my community and its people. I feel these are the strengths that will encourage me to return to my country, community and family.’

18. The Tribunal has given significant weight to the fact that the visa applicant’s husband, [and specified family members] live in Pakistan, and evidence has also been provided of her property ownership, bank balances and involvement in her community.

19. She said in a statutory declaration dated 26 January 2018 that she had been married for [number] years and still enjoyed an amicable marital relationship. According to her daughter, her parents are ‘profoundly bonded’ and are ‘emotionally, socially and culturally’ dependent on each other. The review applicant said that it would be difficult for the visa applicant to leave her husband even for a short three-month period. Their son, [named] lives with them at their family home in Quetta. He works [in a specified sector]. According to the review applicant, her [sibling] in Quetta, who has [specified] children, is very attached to her mother. She said that her mother also has a large family network in Quetta, including uncles and cousins. She spends a great deal of time with them, and has a busy social life, with many friends. The review applicant said that her mother feels comfortable in Quetta as people speak her language, and it is her community.

20. According to the applicants, a further incentive for the visa applicant to return to Pakistan at the end of her visit, is that the visa applicant has [specified children] living in [Country 1]. They are [married] with children. According to the review applicant, the visa applicant can travel easily to visit her four grandchildren in [Country 1] because it is a simple process to get a visa. A Family Registration Certificate was provided to evidence the relationships.

21. Evidence was also provided of property ownership. The visa applicant and her husband bought a house together but he gifted it to her ‘as is customary’.  She provided a copy of a document headed ‘acceptance’ reporting on the acceptance of the gift of the house in Quetta from her husband. An affidavit of ‘gift deed’ from her husband and electricity bills were also provided. The applicants mentioned that currently there is construction on part of her property so the visa applicant is very busy managing the renovations. They are building a new house on the property and will move into that house, and rent out their current home.

22. The visa applicant also provided a bank document from [a named bank] in Quetta stating that she had savings of 900 000 rupees (approximately AUD $8600). According to the review applicant, the [named bank] is one of the ‘primeval institutions in Pakistan with a legacy of more than [number] years’ and is [very large] in Pakistan. In a statutory declaration dated 26 January 2018 the visa applicant said that she was not in paid employment, and had worked as a housewife her entire life. She said that she had been dependent on her husband, who was a government employee, however she managed his income. She said that her husband also receives an age pension as he had retired, and her son, [named] is [in a specified sector].

23. The visa applicant told the Tribunal that her everyday activities vary day-to-day, but predominantly include grocery shopping, completing household chores such as preparing meals for her family and washing clothes. She said that she sees her grandchildren almost every day. She said that the time she spends with them is very rewarding. She also regularly visits her neighbours for general conversation, and they assist each other whenever needed. She said that just recently she had been busy with construction work to extend the bedrooms on their property. She said that she is very community-driven. Prior to the COVID-19 pandemic, on Wednesdays and Fridays she joined a group of women for communal gatherings for breakfast and religious rituals. Her neighbourhood places high value on communal bonding. Community members volunteer themselves to assist each other with arrangements for social events, religious congregations, and other important occasions such as funerals and weddings. She said that she was born in Quetta and all her memories are in Quetta. She enjoyed her own time with her parents and siblings and with her own children. She said that she is strongly sentimental about her community and its people, her home town and country. She said that she is ‘used to this culture, environment, community and surrounding. I cannot imagine living anywhere else permanently’. She said that she has a strong sense of belonging for her family members, grandchildren, community, hometown and country and for this reason she would return after her visit to her daughter and grandchildren in Australia.

24. The review applicant said that a very important incentive for her mother to return to Pakistan is that she does not speak English, is illiterate and would not have community support in Australia.

25. The Tribunal is satisfied, after careful consideration of this evidence, that although Hazaras in Quetta generally may have significant incentives to seek permanent stay in Australia, the visa applicant has many family, financial and community incentives which would encourage her return to Pakistan at the end of her visit.

26. Thirdly, the Tribunal has given weight to the character of the review applicant and her husband who are Australian citizens. The review applicant works full-time in a [business] as a [specified role]. Her husband is [an occupation] in [a specified sector]. The review applicant submitted that she and her husband are stable citizens who have always complied with visa conditions and the law. She told the Tribunal that neither has been issued with a speeding fine and neither has done anything illegal. Their children are [specified ages] old and attending school. They have no other family members in Australia and have not sponsored any family members previously. They have indicated that they will support the visa applicant with her travelling costs, accommodation and food while in Australia. The visa applicant said that she also has always been a law-abiding citizen of Pakistan and the countries she has visited. The review applicant said that she just wants the joy of seeing her family once in a while, as she yearns to see her parents, especially her mother. The Tribunal accepts the submissions of the applicants that they are law-abiding citizens.

1. Fourthly, the review applicant and her husband have indicated a willingness to provide a security bond to guarantee the return of the visa application at the cessation of her visit. This willingness does indicate a certainty on the review applicant’s behalf that her mother will return at the end of her visit.

2. For the above reasons considered cumulatively, and in particular the character of the applicants, the fact that the visa applicant’s husband and children remain in Pakistan, her age, illiteracy and lack of English language, 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

3. 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.

   Jane Marquard
   Member