2205834 (Migration)

Case [2023] AATA 1958

2205834 (Migration) [2023] AATA 1958 (24 March 2023)

DECISION RECORDS

DIVISION:Migration & Refugee Division

REVIEW APPLICANT ONE:  [Name]

VISA APPLICANT (1):  [Name]

CASE NUMBER:  2205832

VISA APPLICANT (2)  [Name]

CASE NUMBER:  2205136

VISA APPLICANT (3)  [Name]

CASE NUMBER:  2205833

REVIEW APPLICANT TWO:  [Name]

VISA APPLICANT ([4]):  [Name]

CASE NUMBER:  2205834

VISA APPLICANT ([5]):  [Name]

CASE NUMBER:  2205139

MEMBER:Michael Judd

DATE:24 March 2023 

PLACE OF DECISION:  Perth

DECISIONS:  The Tribunal affirms each decision not to grant the visa applicants a Visitor (Class FA) visa.

Statement made on 24 March 2023 at 3:28pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – business interests in home country – property ownership – security issues in Pakistan – Hazara ethnicity – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.321, 600.612

CASES

Hasran v MIAC (2010) 183 FCR 413
Hasran v MIAC [2010] FCAFC 40
M v MIMA (2006) 155 FCR 333
Usman v MIMIA [2005] FMCA 96
Xue v MIAC, [2009] FMCA 421         

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 DECISIONS AND REASONS

APPLICATIONS FOR REVIEW

  1. These are five (5) applications for review of decisions made by a delegate of the Minister for Home Affairs on 10 March and 22 March 2022. The decisions were to refuse to grant the five visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The five visa applicants applied for the visas on 12 March 2021 and 3 February 2022 respectively. They are all close family of the two review applicants [Review Applicant 2] and [Review Applicant 1]. The two review applicants are married and reside in Melbourne.

  3. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the five visa applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

  4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicants to satisfy the Minister (in this case the Tribunal) that they genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

  5. The delegate refused to grant the five visas on the basis that the visa applicants did not meet cl 600.211 because they did not meet the relevant criteria in clause 600.211 in Schedule 2 to the Migration Regulations pertaining to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the matters in clauses 600.211 (a) (b) and (c).

    THE TRIBUNAL PROCEEDINGS

  6. As stated, the two review applicants, [Review Applicant…

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2205834 (Migration) [2023] AATA 1958
Case
[2023] AATA 1958
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CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed decisions to refuse five Visitor (Class FA) visas to applicants from Pakistan. The review applicants, who were offshore in Pakistan at the time of the hearings, provided evidence via Teams Audio. The primary dispute concerned whether the visa applicants genuinely intended to stay temporarily in Australia, as required by the criteria for a Subclass 600 (Visitor) visa.

The Tribunal was required to determine if the evidence presented satisfied the genuine temporary entrant requirement, specifically considering the applicants' circumstances in Pakistan and the country information relating to security concerns. A key legal issue was how to assess the applicants' intentions in light of significant security risks in Quetta, Pakistan, particularly for individuals of Hazara ethnicity, and whether the applicants had provided sufficient responses to this information.

The Tribunal considered evidence regarding the applicants' family ties in Australia, including one review applicant who had been living in Australia for fifteen years and was a citizen. It also considered information about the father's business interests in Quetta, though documentary evidence was lacking. Crucially, the Tribunal put to the review applicants information from the DFAT Country Information Report and the Australian Government's Smart Traveller website concerning the severe security situation in Pakistan, especially for Hazara individuals in Quetta. This information suggested strong incentives for individuals of Hazara ethnicity to fear for their safety and thus have reasons not to return to Pakistan. The review applicants were given an opportunity to comment on this information but failed to do so by the deadline. Consequently, the Tribunal was not satisfied that the visa applicants genuinely intended to stay temporarily in Australia.

The Tribunal affirmed the five decisions not to grant the Visitor (Class FA) visas, finding that the requirements of clause 600.211 were not met for each applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 16 January 2023 the Tribunal issued invitations to both review applicants to attend hearings with respect to all five visa applicants, scheduled for 9 February 2023. Prior to the hearings, written consent was secured from both review applicants to hold joint hearings. The Tribunal considered this to be an appropriate course and use of its time, considering the similarities of the five visa applicants and applications.Evidence obtained at the joint hearing held on 9 February 2023 Both review applicants provided their evidence by Teams Audio as they were located offshore in Pakistan at the time. Evidence of [Review Applicant 1]: [Review Applicant 1] presented no ‘new’[1] evidence for the hearings. He testified that he had been living in Australia for fifteen years. In relation to the three visa applicants, being his father, mother and brother, he confirmed the purpose of their intended visits was to spend time with him and his family; there were no medical or business purposes. [1] [Review Applicant 1] was born in Quetta Pakistan in [specified year]. He confirmed his parents remain married and are living together in Quetta. His father runs a [product 1] business. The brother lives with their parents. His [other family members] live in [Country 1] and [Country 2] respectively. He also has [other family members], one of whom lives in Pakistan and another is soon to move to [Country 3]. [Review Applicant 1] completed the equivalent of [grade] in Pakistan; he commenced a bachelor’s degree in Pakistan but did not complete it. He came to Australia in July 2007 upon a student visa whereupon he studied [subjects]. He gained permanent residency in 2010 or 2011 and citizenship in 2014. He married his wife, [Review Applicant 2], in 2010 in Pakistan in an arranged marriage; she joined him in Australia in 2014; she gained citizenship in 2019. They are both ethnic Hazara, as are the broader families. Ethnicity is a matter of relevance to the Tribunal in its assessments – see below. In relation to his applicant mother [Visa Applicant 1], he testified that she is a housewife in Quetta; her health is good. She has previously travelled to [specified countries] in the past. She has never entered Australia. The review applicant testified that an earlier application for visitor visa had been lodged for his father eight or nine years ago; this had been refused by the department. He confirmed that his mother wanted to stay in Australia briefly ‘only for a couple of months’. In relation to his father, the visa applicant [Visa Applicant 2], the review applicant testified to the effect that his father was aged between [age range] and operates the ‘[Business 1]’ in Quetta. The business commenced around 20 years ago. He claimed that his father owns the business and a couple of houses, all located in Quetta. The review applicant has provided no documentary evidence or information establishing the ownership and operation of this business as at time of decision.

Decision

Reasons for decision

For the above reasons the Tribunal is not satisfied that each of the five 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 with respect to each individual applicant.DECISION The Tribunal affirms the five decisions not to grant the five visa applicants a Visitor (Class FA) visa.Michael JuddMemberANNEXURE 1The particulars of the information are:Information extracted from the current ‘DFAT Country Information Report –Pakistan’: dated 25 January 20222.8 The pandemic and government measures to contain it have had a major impact on theeconomy. Growth fell to negative 0.47 per cent in fiscal year 2020, the first contraction indecades. The World Bank estimates half the working population either lost their jobs or facedreduced hours. In the same period, 40 per cent of households suffered moderate to severe foodinsecurity. The national poverty rate stood at 24 per cent in 2020. Assuming the pandemic iscontained, the World Bank expects growth to gradually recover, but sectors such as agriculturewill remain weak, and poverty is likely to remain high.As much as 70 per cent of healthcare costs are borne as out-of-pocket expenses by patients,and catastrophic healthcare expenditures can push households into poverty, especially in ruralareas.Page 2 of 6Following improvement over recent years, the security situation in Pakistan has deterioratedsince mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnicconflicts, gender [1] based issues, sectarian hatred, economic hardship, petty and organisedcrime, tensions with India and the situation in Afghanistan. 2.35 Terrorist attacks increased in2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS)(see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people andinjured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groupscarried out most of these attacks. International jihadist groups and domestic ethnonationalistgroups also carried out attacks. See also Armed groups. 2.36 Most terrorist attacks targetcivilians or security forces, vehicles and outposts. Places of worship, schools, and other buildingshave also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gunattacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen inKhyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh(especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan orAzad Kashmir in 2020. 2.37 While the large-scale security operations carried out in 2014-17 havemostly wound down, Pakistan Armed Forces continue to conduct operations against terroristgroups who attack its interests and in response to specific threats and incidents. There has beenan uptick in these operations commensurate with the recent increase in terrorist attacks.According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and moneylaundering on the recommendations of the Financial Action Task Force (FATF).2.39 A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarianwhile others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrellagroup established in 2007 that is responsible for some of Pakistan’s most notorious terroristattacks, including the attack on the Army School in Peshawar in 2014 and the attemptedassassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’sshort-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas.Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamiccaliphate. The TTP is independent from the Afghan Taliban, although they are ideologicallyaligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. InOctober 2021, the government announced it was conducting negotiations with TTP elements. InNovember 2021, it announced it had agreed to a one-month ceasefire with the TTP.2.40 TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistanin August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan,but also Punjab and Sindh.Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts ofPakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particularTTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank,Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.Page 3 of 62.42 Islamic State (IS) and Al Qaeda both have a presence in Pakistan and have carried outattacks there, either directly or through proxies. Both groups are motivated to expand theirinfluence and recruit fighters to their cause. They have targeted Pakistani military andgovernment representatives, and religious and ethnic minorities, and also carried out anti-Western attacks. Besides LeJ, Al Qaeda has frequently collaborated with the TTP to carry outattacks. Al Qaeda’s capability in Pakistan has been reduced, but the group is still active. Twosuspected Al Qaeda terrorists were reportedly killed in an encounter with police in Dera GhaziKhan in November 2020. Recent IS attacks in Pakistan include the bombing of a mosque inQuetta in January 2020 that killed 15 people, and an attack in January 2021 that killed 11 Hazaraminers in Balochistan. Many fighters for Islamic State in Khorasan Province (ISKP, the localbranch of IS active in Pakistan and Afghanistan) are former TTP fighters, and the group has alsocarried out attacks in coordination with LeJ, including a 2016 attack on a Quetta police station.2.44 Ethnonationalist groups in Sindh and Balochistan carry out attacks against the Pakistanimilitary and government, often causing civilian casualties. These include the Baloch LiberationArmy and the Baloch DFAT Country Information Report – PAKISTAN - January 2022 16Liberation Front, both of which carried out multiple deadly attacks in 2020, as well as theSindhudesh Liberation Army. The goals of these groups include independence or greaterautonomy for their provinces. Civil disorder 2.45 Political and religious groups stage protestsacross the country. These can draw large crowds and turn violent. International events canprompt demonstrations or violent protests. Demonstrations relating to blasphemy and otherreligious issues can also draw wide – and rapid – support2.49 Violent crime occurs across Pakistan, including armed robbery, assault, carjacking andkidnapping. According to UN Office on Drugs and Crime data, Pakistan has a homicide rate of3.1 murders per 100,000 population, about average for the region and lower than the globalaverage of 6.1 murders per 100,000 population. Islamabad has a lower crime rate than othermajor cities due to its large security presence. Crime rates in Lahore and Karachi have alsodropped in recent years due to police crackdowns. Violent crime in rural areas and in Gilgit-Baltistan is generally lower. 2.50 Criminal gangs exist in Pakistan. Their activities include drugtrafficking, kidnapping, extortion, human trafficking, and child sexual exploitation. Some arepolitically connected.2.50 With the Taliban seizing power in Afghanistan in August 2021, Pakistan bolstered securityalong its land border with Afghanistan. Pakistan has completed over 90 per cent of a borderfence between the two countries, but its border with Afghanistan remains porous and susceptibleto irregular migration and people smuggling, movement of terrorists and extremists, and transitof narcotics and other illicit goods. As the economic and human rights situation in Afghanistandeteriorates, further displacement of Afghans across the border to Pakistan is possible.3.3 The Hazaras are an ethnic group of distinctive East Asian appearance, native to the Hazarajatregion of Afghanistan. Their language, Hazaragi, is a variety of Persian that is mutually intelligiblewith Dari. There are an estimated 600,000 to 1 million Hazaras in Pakistan. Most are Shi’aMuslims of the Twelver Sect, although some belong to the Ismaeli sect, and a small number arePage 4 of 6Sunni. 3.4 Large groups of Hazaras migrated to Pakistan from Afghanistan in the late 19thcentury, during the 1978-89 Afghan War, and following the Taliban takeover in 1996. Most liveinenclaves in Quetta due to the security situation in Balochistan. Smaller populations live inKarachi, Lahore and Islamabad. Hazaras outside Quetta tend not to live in enclaves to reducethe risk of ethnic profiling, discrimination and attack. Hazaras participate in regional politics, andthere are two MPs from the Hazara Democratic Party (HDP) in the Balochistan provincialassembly3.5 Militant groups including, LeJ and IS (see Armed Groups) consider the Hazaras ‘infidels’ whoare ‘worthy of killing’. A 2019 report by the NCHR said at least 2,000 Hazaras had been killed bymilitants in Pakistan since 1999 ‘in various incidents including bomb blast, suicide attacks andtarget killings. No one has been held accountable for these attacks. Hazara political and religiousleaders have been targeted for assassination. In April 2019, a bombing in Hazarganji marketkilled 24 people, many of them Hazaras. In January 2021, IS militants killed 11 Hazara miners inMach. While there have been no attacks outside Balochistan since 2014, Hazaras havepreviously been targeted in Karachi, Peshawar and elsewhere. Militant groups retain the intentand capacity to attack Hazaras throughout Pakistan.3.6 The Hazara community in Quetta lives in two enclaves: Hazara town and Mariabad. ThePakistani government provides security in these communities, including vehicle checkpoints andsearches on entry and exit. Government forces also provide security for Hazara religiousprocessions (see Shi’a) and Hazarganji market. Hazaras who leave Quetta are required to notifythe security agencies. Local sources report Frontier Corps routinely harass Hazaras atcheckpoints. Human Rights Watch has reported that retired members of the Frontier Corps havedescribed Hazaras as ‘agents of Iran’ and ‘untrustworthy’. 3.7 Medical, education and otherservices inside the enclaves are basic. Food and other essentials must be brought in fromoutside, and prices are reportedly double those elsewhere in Quetta. Those who can afford totravel to Karachi for medical treatment do so, while others must attend Quetta hospitals outsidethe enclaves, where they have been attacked in the past. Sectarian militants have also attackedHazara religious processions, places of worship, and pilgrims on their way to Iran. 3.8 Schoolsexist within the enclaves, but there is little opportunity for higher education. Many Hazarastudents have abandoned the hope of higher education due to the risk of travelling. A smallnumber of wealthier Hazaras send their children to study at universities in Lahore or Islamabad,where they reportedly feel safer. 3.9 Many Hazaras in Quetta provide services to their owncommunities within the enclaves; others move to other cities across Pakistan to work. Whethera Hazara can relocate strongly depends on their personal resources and family connections. Inthe past Hazaras were often employed in the military and public service, but few now apply forthese jobs due to discrimination and fear of attacks. Since the IS attack in Mach in January 2021,Hazaras are reportedly too scared to work in the Baloch mining industry, previously an importantsource of income. High rates of unemployment and limited prospects have reportedly led to asense of hopelessness among Hazara youth in Quetta. 3.10 While most Hazaras in Pakistan canobtain formal identification such as Computerised National Identity Cards (CNICs), Hazarasclaim National Database and Registration Authority (NADRA) officials at times cause delays forHazaras. Hazaras have suffered lethal attacks outside the NADRA office in Quetta while tryingto obtain passports and CNICs. As a result, many Hazaras do not feel safe leaving the enclavesPage 5 of 6to apply for documentation. 3.11 DFAT assesses Hazaras who live in the enclaves in Quetta facea moderate risk of societal discrimination in the form of impeded access to higher education,medical services, employment and affordable food. Within and outside the enclaves, Hazarasface a moderate risk of official discrimination, including by government officials and securityforces, in the form of obstruction at checkpoints and denial of or delay in access to identitydocumentation, employment and services. DFAT assesses such discrimination reflectswidespread individual prejudice rather than official policy. 3.12 DFAT assesses Hazaras inBalochistan face a high risk of violence from militants on the basis of their ethnic and sectarianidentity. Outside Balochistan the risk of violence for Hazaras is moderate. Hazaras face a higherrisk of violence than other Shi’a due to their distinctive appearance and segregation. OutsideBalochistan, DFAT assesses Hazaras face a low risk of societal or official discrimination butnotes relocation to these areas is difficult or impossible for many.Current Information from the Australian Government ‘Smart Traveller’ website:Latest update:Terrorist groups hostile to foreign interests operate in Pakistan. The threat ofattack remains very high. We continue to advise reconsider your need to travel to Pakistan, anddo not travel to some areas of Pakistan. Reporting since late 2022 has identified the potential forincreased attacks in Islamabad, including at major hotels. In response, heightened securityarrangements are in place, including an increased security force presence and additionalcheckpoints. Some public events have been banned. Australian officials in Islamabad have beenadvised to increase vigilance and limit travel within the city. Political protest action has increasedin recent months which can impact travel and can turn violent. You should exercise heightenedvigilance, review your personal security plans and monitor the media for latest updates (See‘Safety’).Reporting since late 2022 has identified the potential for increased attacks in Islamabad,including at major hotels. In response, heightened security arrangements are in place, includingan increased security force presence and additional checkpoints. Some public events have beenbanned. Australian officials in Islamabad have been advised to increase vigilance and limit travelwithin the city. You should exercise heightened vigilance, review your personal security plansand monitor the media for latest updates. Terrorist groups hostile to foreign interests operate inPakistan. The threat of attack remains very high, especially in Balochistan and KPK provinces,which suffer regular, and sometimes large-scale terrorist attacks. If you travel to Pakistan, youshould remain cautious and vigilant, including in major cities. Counter-terrorism operations occuracross the country. Terrorist attacks could occur anywhere and at any time. Previous attackshave included the use of grenades, firearms, and bombing, including suicide bombs. Someterrorist attacks in Pakistan have involved multiple explosions, one after the other.Securityofficials may cut mobile phone services when the threat of terrorism is high or straight after anincident.If you go to Chitral district or Gilgit Baltistan, travel by commercial aircraft, not by road,as the safety and security risks are significant.

Ratio Decidendi

Legal Principle Established

At the conclusion of the day’s hearing, the Tribunal advised both review applicants that it was aware of country information about Pakistan, and Quetta in particular, that needed to be put to them both for their comment or responses. There was insufficient time available to put the information to the review applicants pursuant to section 359AA of the Act during the hearing. It advised that it would write to them both to identify the country information and seek their comments and responses prior to the next hearing date. It was also considered likely by the Tribunal that it would need to receive evidence from Pakistan from the five applicants on the next scheduled hearing date.The section 359A Migration Act letters served on both review applicant On 9 February 2023 the Tribunal issued letters to both review applicants pursuant to section 359A of the Migration Act. These letters identified information sourced from the most recent DFAT country information report dated January 2022, and from the more current Australian Government ‘Smart Traveller’ website. Having considered the import of the information, the Tribunal considered that in the absence of receiving comment or responses from the review applicants, the information would, if accepted, be the reason or a part of the reason for affirming the decisions under review. The information strongly suggested that there remain very significant security concerns within the Quetta area and surroundings, and particularly so for people of Hazara ethnicity, such as the applicants. Considered in entirety, the information suggested to the Tribunal that there may currently be strong incentives for Quetta based persons of Hazara ethnicity to have reasons to fear for their safety, such that there would be incentives not to return. Put differently, it appeared that, subject to any comments or responses from the review applicants, there may be strong incentives for each of the five visa applicants not to depart Australia. The specific information included in both section 359A Migration Act letters is annexed to this decision, marked as Annexure 1. The section 359A letters were served via the nominated email addresses as provided for both review applicants for the purposes of the review. The letters invited both to comment on or respond to the information by 23 February 2023, and that if there were no comments or responses by that date, the Tribunal may rely on the information in making a decision, which may include affirming the decisions under review. The letters clearly identified that if comments or responses were unable to be provided by 23 February 2023, the review applicants may have sought an extension of time by which to respond; no requests were received. Because of there being no comments or responses received within time, by force of law the review applicants have lost any entitlements they may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. As such, the decisions with respect to each visa applicant are made based upon all evidence and information before the Tribunal as at time of decision, including the summarised oral evidence obtained at the hearing.