2308191 (Migration)

[2024] AATA 3820

2308191 (Migration) [2024] AATA 3820 (4 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Fayyaz Ali Shah

CASE NUMBER:  2308191

MEMBER:Member Nathan Goetz

DATE:4 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision dated 8 June 2023 refusing to grant each applicant a Visitor (class FA) Visitor (Sponsored Family) (subclass 600) visa.

DIRECTION:  The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review that information that would identify any applicant in this review must not be published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about a previous protection visa application (noting several provisions in the Act restrict publishing material that identifies protection visa applicants, e.g., ss 91X, 431 and 501K).

Statement made on 04 September 2024 at 2:06pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – evidence was inconsistent with what the review applicant claimed in his protection visa review – visa applicants have a flexible approach to the truth – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221

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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister who refused to grant an applicant a Visitor (class FA) Visitor (Sponsored Family) (subclass 600) visa. Each delegate refused to grant one of the applicants the visa.

2. The applicants were represented in the review by registered migration agent 1570276.

   BACKGROUND AND CRITERIA FOR THE VISA

3. The visa applicants are Ms [A], a female citizen of Pakistan born on [date] in that country and her husband Mr [B], a male citizen of Pakistan born on [date] in that country. In the visa application forms, they identified that they were in Pakistan at the time they applied for the visas.

4. The visa applicants applied for the visas on 2 June 2023. 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 applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

5. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. On 8 June 2023 the delegate refused to grant the visas because the delegate was not satisfied that the visa applicants met cl 600.211 of Schedule 2 to the Regulations. This provides the following:

   The (visa) applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  whether the (visa) applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)  whether the (visa) applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)  any other relevant matter.

7. The delegate does not identify the conditions that would be imposed on the visitor visas if granted. Clause 600.612 of Schedule 2 to the Regulations provides that each visa applicant would be subject to the following conditions:

   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.

8. On 9 June 2023 the review applicant applied to the Tribunal for review of the decision. The review applicant is the visa applicants’ son who is an Australia citizen as of 9 October 2014. He is also the sponsor for the visa. The review applicant was represented by an Australian legal practitioner.

9. On 4 July 2024 the Tribunal wrote to the review applicant under s 360(1) of the Act and invited him to appear at a Tribunal hearing scheduled for 7 August 2024 via MS Teams. The Tribunal indicated that it wished to receive oral evidence from the visa applicants at the Tribunal hearing. It was for this reason that the Tribunal determined a Tribunal hearing conducted via MS Teams was appropriate in all the circumstances of the review.

10. That same day, the Tribunal wrote to the review applicant under s 359(2) and requested he provide the Tribunal with information. The information requested, and the review applicant’s response, is detailed later in this decision record.

11. On 7 August 2024 the review applicant and visa applicants appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Pashto languages. The representative also attended the Tribunal hearing. The review applicant’s young children also appeared at the Tribunal hearing and told the Tribunal about their desire for their grandparents to visit them in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this review is whether each visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations.

13. If the Tribunal finds that a visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations, the correct or preferable decision is to set aside the decision refusing to grant that visa applicant the visa and remit the visa application back to the delegate for reconsideration, with a direction the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations.

14. If the Tribunal finds that a visa applicant does not satisfy cl 600.211 of Schedule 2 to the Regulations, the correct or preferable decision is to affirm the decision refusing to grant that visa applicant the visa.

15. The Tribunal considered all the evidence provided in the visa applications and the review application, including the oral evidence provided at the Tribunal hearing. The evidence can be summarised as follows:

16. According to the visa application forms, the visa applicants are a married couple who reside in [Khyber Pakhtunkhwa]. They were both born in [year]. The two visa applications were lodged as part of a group of visa applications, consisting of the two visa applicants only. At the Tribunal hearing, the visa applicants confirmed they remained living at the address detailed in the visa application form.

17. They both listed their reasons for coming to Australia as a family visit and referred the reader to the ‘sponsor support letter’ from the review applicant. In that letter, the review applicant indicated that the purpose of the visa was to allow the visa applicants to attend the review applicant’s graduation ceremony. The review applicant detailed that he had completed a [degree].

18. The review applicant noted that the graduation ceremony was scheduled to occur on 11 May 2023, but the review applicant deferred this as a protest because his mother had applied for a visa to attend that ceremony and it had been refused.

19. The review applicant detailed that visa applications by his parents had previously been refused when visa applications were made for them to come and visit when he came a father and when he purchased his first home. The review applicant stated that he has been a taxpayer since 2010 and contributed to the community, noting his work as a [occupation] and a [occupation]. The review applicant also detailed his volunteer work.

20. The review applicant detailed that it is a financial burden to visit his parents in Pakistan, and that the last time he travelled there it cost him $30,000. Visas for them to travel to Australia would save money. The review applicant detailed that his parents would live in his family home during their stay in Australia and that the review applicant would be responsible for meeting their living costs while in Australia, which he had capacity to meet through his employment and savings. The review applicant claimed that his parents had strong personal and economic tires to Pakistan, noting they have six children and ten grandchildren in that country. The review applicant claimed that his parents fully intend to return to Pakistan at the conclusion of their visit to Australia. He understood the ‘no further stay’ condition and guaranteed that his parents would comply with all visa conditions and depart Australia.

21. In the visa application forms, the visa applicants indicated that they planned to arrive in Australia on 1 August 2023 and depart on 25 October 2023. At the Tribunal hearing, noting that this time had passed, the Tribunal was told that arrangements for travel would occur shortly after the grant of the visitor visas. No month was nominated by the visa applicants. The visa applicants told the Tribunal that they would be content to have visitor visas that would allow them to stay in Australia for one month.

22. In the visa application forms, the visa applicants declared that they had previously applied for visitor visas that had been refused.

23. In the visa application forms, the visa applicants identified that they had family in Australia as follows:

    ·     Their son, [the review applicant] who was born on [date] and identified as an Australian citizen.

    ·     Their daughter-in-law, Ms [name], who was born on [date] and identified as an Australian citizen.

    ·     Their granddaughter, Miss [name], who was born on [date] and identified as an Australian citizen.

    ·     Their grandson, Master [name], who was born on [date] and identified as an Australian citizen.

    ·     Their granddaughter, Miss [name], who was born on [date] and identified as an Australian citizen.

    ·     Their granddaughter, Miss [name], who was born on [date] and identified as an Australian citizen.

24. In the visa application forms, the visa applicants identified that they had the following ‘non-accompanying members’ who were not travelling with them to Australia:

    ·     Their son, Mr [name], who was born in Pakistan.

    ·     Their daughter, Ms [name], who was born in Pakistan.

    ·     Their son, Mr [name], who was born in Pakistan.

    ·     Their daughter, Ms [name], who was born in Pakistan.

25. At the Tribunal hearing, the review applicant told the Tribunal about his migration journey to Australia. He told the Tribunal that he came to Australia on a student visa and then lodged a protection visa which was granted in March 2012. After getting the protection visa, if completed his studies. When asked what his protection claims were, the Tribunal was told that the review applicant holds views contradictory to Pakistan society, particularly religious views. He does not believe anything absolutely and evolves his views over time, and he can be Christian one day, Jewish another day, and Muslim the next day. He had never been harmed in Pakistan because he never spoke about his beliefs there because he would be persecuted. He told the Tribunal that he had returned to Pakistan a few times since being granted a protection visa but usually stays a month or a month or a half, with the most time being three months. His parents know that the applicant came to Australia, applied for a protection visa, and was granted a protection visa. The review applicant told the Tribunal that he was granted the protection visa under the name [Alias 1], and he subsequently changed his name.

26. Department records show that the review applicant arrived in Australia on [date] April 2010 holding a student visa that was valid until 4 September 2011.  On 20 October 2010 the applicant applied for a protection visa which was refused by a delegate on 15 September 2011. The review applicant applied to the Tribunal for review of the decision and on 27 March 2012 the Tribunal set aside the decision refusing to grant the review applicant the protection visa and found that the review applicant satisfies s 36(2)(a) of the [Act]. On 19 July 2012 the review applicant was granted the protection visa and he became an Australian citizen on 9 October 2014.

27. Department records show that the review applicant departed Australia on [date] January 2015 and returned on [date]  March 2015; departed Australia on [date]  November 2016 and returned on [date]  December 2016; and departed Australia on [date]  October 2018 and returned on [date]  December 2018; departed Australia on [date]  March 2022 and returned on [date]  May 2022.

28. The review applicant told the Tribunal that his parents had never been harmed or threatened with harm in Pakistan in connection with the review applicant’s protection claims. The review applicant said that one of his brother’s in Pakistan had sort of adopted the beliefs that the review applicant holds, but the review applicant told that brother not to speak to anyone in Pakistan because that would not be safe for the brother. The applicant said he has adopted Islam as a religion once in Australia after being agnostic but is not Sunni or Shia. He told the Tribunal that his views evolve.

29. The review applicant told the Tribunal that the visa applicants are Sunni Muslims and that his father follows the Barelvi sect, although his views do not completely align with this sect but are closely aligned.

30. According to the Tribunal’s decision concerning the review applicant’s protection claims, the review applicant raised the following, among other things:

    ·     ‘(The review applicant) claims his uncle, [name], is a local leader of Tehrik-e-Taliban, and his father is also a member.’

    ·     “While at university, he claims his uncle said when he had finished studying that the (review applicant should work for him (the uncle) and Islam. He claims that his uncle pressured and intimidated his for several years.’

    ·     ‘(The review applicant) claims that after university, he learned that his uncle was a commander in Tehrik-e-Taliban (TTP) and wanted the (review applicant) to help by assisting with translations and making weapons. He claims that his father pressured him and his brothers to join the group. He claims his father and uncle will kill him if he returns to Pakistan.’

    ·     ‘When asked what he thought would happen to him if he returned to Pakistan, he said he would be killed because he had cheated his father and his uncle.’

31. According to the DFAT Country Information Report on Pakistan dated 25 January 2022, Tehreek-e-Taliban Pakistan is a terrorist group, which carried out most of the terrorist attacks, along with other domestic jihadist groups in 2020 and 2021 in Pakistan. The report detailed that the TTP is the most prominent of the domestic jihadist groups in Pakistan and that it is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-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 Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.

32. The report further details that TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have repledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP 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.

33. At the Tribunal hearing, the Tribunal went through the mandatory conditions that would attach to each visitor visa if granted. Those conditions are noted earlier in this decision record. The visa applicants indicated that they understood those conditions and agreed to abide by them. This was consistent with the declarations made in the visa application forms that the visa applicants understood that they would not be permitted to work on the visitor visas, would be limited in the time allowed for them to undertake any studies or training in Australia (although both visa applicants declared in the forms that they were not going to undertake any study in Australia), that they understood the effect of Condition 8503 would have on their visitor visas and agreement that they would depart Australia on or before the expiration date of the visitor visas. The visa applicants told the Tribunal that they did not intent to lodge a visa application to remain in Australia once they arrived here because the majority of their family is in Pakistan.

34. The visa applicants noted to the Tribunal that they were an elderly couple who were not able to work and had carer responsibilities in Pakistan and that they wished to return to Pakistan at the end of their visit to Australia.

35. At the Tribunal hearing, [Mr B] told the Tribunal that is retired and not working and that he helps look after his grandchildren but that he looks after his farm and garden. This was consistent with the declaration in the visa application form that [Mr B] had closed his [store] and was unemployed. Ms [A] declared in the visa application form that she was a homemaker and does not work.

36. The visa applicants told the Tribunal that they were not involved in any political activity in Pakistan. The visa applicants also told the Tribunal that none of their siblings were involved in political activity in Pakistan and that none of their tribe were involved in political activity. The Tribunal was told that none of the visa applicants’ siblings were involved with the Taliban and they were scared of them. [Mr B] told the Tribunal that he had never threatened to harm the review applicant because there were bonds in place and had never encouraged the review applicant to join the Taliban. [Mr B] told the Tribunal that his mentality was to be distant from that group, and queried why he would encourage this in those circumstances.

37. The visa applicants told the Tribunal that the review applicant’s purpose coming to Australia was because the visa applicant’s valued education. They worked hard to educate the review applicant. The visa applicants told the Tribunal that the review applicant did not return to live in Pakistan following his study because the review applicant was mentally different to the conditions in Pakistan.

38. Ms [A] confirmed that all the oral evidence [Mr B] provided to the Tribunal was true.

39. The Tribunal raised with the review applicant the evidence provided that [Mr B] had never threatened to harm the review applicant, that [Mr B] had not encouraged the review applicant to join the Taliban, and that none of [Mr B]’s siblings had been involved with the Taliban. In the Tribunal’s assessment, this oral evidence suggested that [Mr B] and Ms [A] had a flexible approach to the truth, because the evidence was inconsistent with what the review applicant claimed in his protection visa review. The Tribunal’s thinking was that if the visa applicants were prepared to be flexible in their evidence to the Tribunal about these facts, they may equally be flexible in their claim that they genuinely intended to stay temporarily in Australia for the purpose for which the visitor visa would be issued.

1. The review applicant told the Tribunal that the relative who was involved with the Taliban was a cousin of [Mr B], not a brother. The review applicant said that it was a cultural reason why this relative was referred to as a ‘brother.’ The Tribunal observes that the the review applicant made no such distinction in his protection claims. Concerning the evidence provided by the visa applicants that [Mr B] had pressured the review applicant to join the Taliban, the review applicant said that his father noted in his evidence that they had ‘differences’ but he was still his father. That did not address why the visa applicants said that [Mr B] told the Tribunal he had not done so. The review applicant’s suggestion that people’s opinions change, and this was 14 years ago, also did not address this inconsistent evidence because whether [Mr B] had pressured the review applicant to join the Taliban. The answer to that question is either yes or no. The review applicant suggested that his father’s view evolve and that their relationship was complex.

2. The review applicant also said that his father’s views at the time the review applicant applied for protection were firm in response to the Tribunal’s observation that his father had never threated to harm the review applicant as detailed in his oral evidence, which appeared to be inconsistent with the review applicant’s claim that his father would kill him if he returned to Pakistan. The review applicant said that his father does not hold these views anymore. The review applicant said that the visa applicants would not come to Australia and lodge a protection visa because of the time it takes for those visa applications to be considered, and they would probably die before any visa grant. The review applicant spoke of his wife’s desire to visit Pakistan, and that the review applicant does not feel safe there and does not want to go there but has done so to see his parents in the past, and that it was costly for the review applicant’s family to go to Pakistan, disruptive to his children’s schooling and cheaper for the visa applicants to come to Australia.

3. The review applicant offered to use his equity in his home in order for the visas to be granted.

   FINDINGS AND REASONS

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

   In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the decision-maker must consider the visa applicant has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

5. The evidence is that the visa applicants have not previously travelled to Australia. This means that the visa applicants have no demonstrated Australian migration history to assess past compliance and non-compliance with visa conditions. In these circumstances, the considerations in cl 600.211(a) are irrelevant.

6. The decision-maker must also consider whether a visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b).

7. The Tribunal accepts that the visa applicants provided oral evidence that they understood the conditions that would attach to their visitor vias and that they agreed to abide by them. However, whether those claims should be given any weight is dependent on whether the Tribunal accepts that the visa applicants are witnesses of truth. In light of the considerations under ‘other-relevant matters’ the Tribunal gives the assurances that the visa applicants will comply with visa conditions no weight.

8. The decision-maker must also consider 600.211(c)). The Tribunal accepts that the review applicant wants the visa applicants to visit him in Australia, as do the review applicant’s children. The Tribunal accepts that it would be more cost effective for the visa applicants to travel to Australia and that the review applicant, despite travelling to Pakistan previously, would prefer not to do so because he does not feel safe in that country.

9. The Tribunal accepts that the visa applicants are not employed in Pakistan, but have responsibilities to grandchildren and presence of children in Pakistan that will act as an incentive for them to return to Pakistan at the conclusion of their proposed visit to Australia.

10. However, the Tribunal was greatly troubled by the oral evidence given by the visa applicants at the Tribunal hearing concerning whether the visa applicant had ever threatened to harm the review applicant, whether [Mr B] had ever encouraged the review applicant to join the Taliban, and whether [Mr B] had any sibling who was involved with the Taliban. The evidence was inconsistent with the review applicant’s protection claims. The review applicant told the Tribunal numerous times during the Tribunal hearing that his protection claims were accepted and he was deemed credible, so it was very odd that the visa applicant’s would provide oral evidence inconsistent with the basis for some of the review applicant’s protection claims. The Tribunal can only conclude, in the absence of the review applicant telling the Tribunal that the protection claims relating to his father and uncle were untrue, that the visa applicants told the Tribunal things that were not true because they believed telling the truth would have a negative impact on being granted the visitor visas.

11. The visa applicants did not suggest to the Tribunal in their oral evidence that what the review applicant claimed in his protection visa application form had occurred, but things had changed. The evidence provided by the visa applicants was unequivocal.

12. The Tribunal accepts that there is no evidence of the review applicant specifying that the uncle who was a commander in the Taliban was his father’s brother, although this inference could be drawn on the way the material was written detailing the review applicant’s father and then mentioning an uncle. In those circumstances, it may be understandable that the visa applicants would not state that any of [Mr B]’s siblings were involved in the Taliban.

13. However, the visa applicants’ evidence was that [Mr B] had not encouraged the review applicant to join the Taliban, and also provided evidence that [Mr B] had never threatened to harm the review applicant, despite the review applicant claiming in the protection visa application form that he would be killed because he cheated his father and uncle. In light of those matters, the Tribunal finds it more likely than not that the uncle referred to in the protection claims meant a sibling of [Mr B] and that in those circumstances, the assertion that none of [Mr B]’s siblings were involved with the Taliban was false.

14. The fact that the visa applicants provided oral evidence inconsistent with the protection claims advanced by the review applicant satisfies the Tribunal that they have a flexible approach to the truth, and that the Tribunal should not give any weight to their claimed intention to travel to Australia temporarily for the purpose for which the visa is issued.

15. These concerns are not overcome by the visa applicants ties to Pakistan or genuine desire for the review applicant and his children to have the visa applicants visit the family in Australia or the review applicant’s offer to provide the equity in his home as a security for the grant of the visa.

    CONCLUSION

16. For the reasons given above, the Tribunal is not satisfied that each visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

17. Therefore, the visa applicants do not satisfy cl 600.211 of Schedule 2 to the Regulations.

    DECISION

18. The Tribunal affirms the decision dated 8 June 2023 refusing to grant each applicant a Visitor (class FA) Visitor (Sponsored Family) (subclass 600) visa.

    Nathan Goetz

    
    

    Member