2308893 (Migration) - [2025] ARTA 367

2308893 (MIGRATION) [2025] ARTA 367 (4 FEBRUARY 2025)

DECISION AND

REASONS FOR DECISION

Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2308893

Tribunal:General Member L. Holub
Place:Sydney
Date: 4 February 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 4 February 2025 at 4:17pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit sister – applicant is an Ahmadi Muslim – relatives had been granted Protection visas – the number of family relatives who now reside in Australia – not satisfied that she will not seek to change her visa status once onshore – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65

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 an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 March 2023. The delegate refused to grant the visa on the basis that applicant genuinely intends to stay temporarily in Australia for the purposes set out.

3. 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 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 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.

5. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

6. The review applicant appeared before the Tribunal on 28 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from her daughter.

7. The applicant was represented in relation to the review. Her representative attended the hearing by telephone.

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

BACKGROUND

9. The review applicant is the sister of the visa applicant. She was born in Pakistan in [year]. She declared that she is employed with [a company]. She first came to Australia on a Business (Short stay) (UC-456) visa on [date] December 2010 which was due to cease on [date] March 2011 and was granted a Protection (XA-866) visa on 15 July 2011.

The visa applicant is a citizen of Pakistan. She was born in the province of Punjab in Pakistan in [year]. According to her application she is married and was intending to travel with her daughter who was born in [year]. She has four other children born in [years]. The applicant wrote in her application that she is a [Occupation 1] and has sufficient funds in her bank account to support herself.

INFORMATION AND EVIDENCE

In addition to identity information, the Department was provided with:
a.A bank statement from [a] Bank Ltd in respect of the visa applicant for the period 1 November 2022 to 1 March 2023; and
b.A bank statement from [a] Bank Ltd in respect of the review applicant for the period 12 December 2022 to 7 March 2023.
Submissions to the Tribunal include the same bank statements provided to the Department as well as:
a.Medical records in respect of the review applicant.
b.The review applicant’s [Bank] Ltd bank statement for the periods 11 February to 21 April 2023, 1 May to 30 June 2023 and from 14 December 2024 to 13 January 2025.
c.A further bank statement in respect of the visa applicant.
d.The visa applicant’s Return of Income Acknowledgement Slip for the 2020 financial year from the Pakistan Federal Board of Revenue.
e.A copy from the visa applicant’s passport showing she was granted a visa on 15 October 2014 to enter [Country 1].
f.A copy of the visa applicant’s business card for the [business].
g.A copy of the visa applicant’s husband’s pay slip for the month of February 2023.
h.A translated copy of a rental agreement referring to her husband.
In a submission provided to the Tribunal on 20 June 2023, it was submitted that the visa applicant is a genuine temporary entrant, and the following points were made:
a.The purpose of the visit is to reunite for a period of time in Australia as they have not seen each other for many years and the review applicant cannot return to Pakistan.
b.The visa applicant’s spouse and her dependent children will not travel with her; and will remain in Pakistan.
c.The review applicant would like her sister to meet her children and family members.
d.The review applicant suffers from depression as a result of being away from her family.
In a statement dated 22 January 2025, the review applicant wrote that prior to residing in Australia, she and her husband lived in Pakistan. She wrote they essentially married in secret as his family would never have condoned his conversion to Ahmadi or his marriage to the review applicant who is an Ahmadi Muslim by birth. Over time, his family became aware of their union and the threats to the lives commenced. In Pakistan she was discriminated against, persecuted and lived with a constant threat of death hanging over her. In December 2010, she and her two daughters travelled from Pakistan to Australia.
The review applicant wrote that since arriving in Australia, the majority of her immediate family in Pakistan, including her mother, uncles, aunts and extended family have passed away and she could not safely visit Pakistan to say her farewells.
The review applicant also referred to health issues explaining that in April 2024 she was involved in a near fatal, life-altering vehicle that resulted in severe injuries, which she detailed. She wrote that she is still dealing with the aftermath of the accident and that having her sister and her niece visit will permit a small portion of normality to return to her life.
The review applicant wrote that if the visa applicant and her daughter visit Australia they will reside with her in her home and that all costs associated with the visit will be covered by her and she does not anticipate undertaking significant tourist activities given her health. 2308893 on 28/01/2025 10:49:31

ORAL EVIDENCE

Evidence of review applicant

The review applicant confirmed that she arrived in Australia in 2010 and was granted a Protection visa. She explained that she and her husband were receiving death threats from his family. She stated that in 1999 when they married he converted to become a Ahmadiyya Muslim. She stated that in Pakistan Ahmadis are considered to be non-Muslim and the law requires a death penalty punishment of a convert. She stated his conversion was a secret because he had a huge family, some of whom held extremist views and so they couldn’t tell his family. She stated their marriage was also done in secret. His family was not involved but all her family was invited. She stated that if information about his conversion got out it would have been a big issue in Pakistan and retaliation against them would have been huge.
The review applicant stated that she has five sisters and one brother. She stated that two of her sisters live in Australia and they were also granted protection. She stated that in relation to one of her sisters, her father-in-law was a notable lawyer and was attacked in chambers and as a result a group of [families] were offered protection by the Australian government. She stated she does not know the details, but stated those people were under threat and the Australian government offered to that entire community.
In relation to the other sister, the review applicant stated that her nieces and nephews started to complain about missing their auntie, so another sister travelled to Australia and remained here.
The review applicant provided the names of these two sisters and the date of birth of one but not the other. I explained to her that I would provide her time following the hearing to provide those details and then would review their migration history from departmental records. I provided until close of business on 31 January 2025 for her to provide that information which she said was readily available to her.
The review applicant confirmed that both of her sisters were granted Protection visa visas and that in relation to the second sister she was granted protection on religious grounds. The Tribunal asked her what would prevent the visa applicant from also seeking protection. The review applicant stated that she has taken an oath that she is telling the truth. She stated that at the time her second sister came, the family actually wanted the visa applicant to travel to Australia, but she did not want to come and said the other sister should come.
The review applicant stated her sisters have different personalities. She started the visa applicant had to endure five caesareans to give birth to her son. The review applicant stated that the visa applicant is very attached to her children. She stated they stop eating when she is not there, because they are so affected. She stated the visa applicant’s son has started [a grade and that his well-being is everything to the visa applicant and that she would not sacrifice him to remain in Australia.
The Tribunal discussed the fact that the visa applicant wrote in her application that she is a [Occupation 1] and has sufficient funds in her bank account to support herself to travel but that the review applicant had written in her statement that she is covering the cost of her visit. The review applicant stated the visa applicant is a [Occupation 1] and has [many clients]. The Tribunal was told the visa applicant has ample funds and can cover the cost of her travel. The review applicant stated from her understanding, the visa applicant will cover the cost travel but that she will stay with the review applicant and the review applicant will cover the costs of her stay in Australia.
The review applicant stated that the visa applicant has not any problems in Pakistan because of her religion. When asked what the basis of her other sister’s protection claims were given her given her previous evidence that she claimed protection on religious grounds, the review applicant stated her sister did not have any problems in Pakistan. She stated she initially came for the family and stayed on. The review applicant stated that her sister did not have particular problems but that in Pakistan the situation is such that all Ahmadis live with some level of threat at all times. She stated they mostly hide the fact they are Ahmadis at all times. She stated there were attacks on her aunts and anyone can be targeted and killed at any time. She stated that in Pakistan there is no guarantee you will be safe, and you have to hide the fact you are an Ahmadis.
The Tribunal put it to the review applicant that based on her oral evidence, it appears that visa applicant could do the same: that is, come to visit her and then decide to seek protection. She responded that she could have done that previously. She stated she only wants to stay for a month even though the review applicant wants her to stay longer. She stated that some people have a belief that they protected by God and that many Ahmadis hold this belief, including the visa applicant.
The review applicant stated that the visa applicant has not had any problems in Pakistan for any other reason also, such as her ethnicity or for any political or religious reason.
The Tribunal was told that the visa applicant is in good health but that she is worried about the health of the review applicant.
The review applicant stated that they visa applicant has a very good income from her [business] and that the visa applicants husband is employed. She explained that the rental agreement that was provided which although refers to the visa applicant’s husband is it property owned by the visa applicant.
In relation to the incentives for the visa applicant to return to Pakistan, the review applicant referred to the fact that the visa applicant has other children who are studying at university and has the family responsibilities such as their upbringing and ensuring they don’t stray. The review applicant stated that she includes the visa applicant’s husband as part of her family responsibilities and that she is also very close to their only brother. The review applicant stated that the visa applicant was also very attached to their mother and visits her graveyard every Eid. She stated she cannot leave her. The review applicant stated that visa applicant has to marry off her daughters, is very close to her motherland and that she also has her business to run. She stated that she sees their struggle and does not want to remain in Australia.
The Tribunal discussed with the review applicant the fact that it appeared there was no indication that a review application had been lodged for her niece who had also been refused the grant of the visa. The Tribunal asked the applicant’s migration representative if that was the case. He responded that having reviewed the file, it appeared that two visa applications were made to the Department (for the review applicant sister and one for her niece) but that he had only received instructions in relation to her sister’s review application. The review applicant became distraught that this situation had arisen, so I proposed a short adjournment for her to be able to compose herself and continue to give evidence.
Following the adjournment that occurred from 4:00 pm until 4:08 pm I explained to the review applicant that in such circumstances where a child is intended to accompany a parent and both applications are refused, it is not unusual that a review application is not lodged in relation to the child and that from a financial point of view given the cost of the visa application vis-à-vis the cost of a review application, in such circumstances the family considers it preferable to reapply for the visa. I told her that this may be the reason a review application had not been lodged in respect of her niece’s refusal decision.

Evidence of review applicant’s daughter

The review applicant’s daughter stated that the visa applicant’s children are an incentive for her to return to Pakistan because their relationship with them is very strong. She stated that three of her children live in Pakistan and that one is studying in [a country], and one recently married.
The witness explained that the review applicant has not seen the visa applicant since the family moved to Australia and that they want to spend time together. She referred to her mother’s car accident which is still causing distress and stated that her injuries may be life threatening and it’s been a long recovery since the car accident. She stated that having time with her sister will relieve the pressure she is currently feeling.

Concluding evidence

The review applicant explained that the visa applicant’s daughter who recently married, now resides in Australia on a spouse visa.
When asked if she wanted to provide any further evidence, the review applicant stated the visa applicant is not motivated to leave Pakistan and that she only wants to visit the review applicant.

Post hearing submissions

The review applicant provided post hearing submissions following the hearing, which included a medical certificate and a GP support letter. The covering email from her migration representative submitted that she suffers from both anxiety and depression and that the conditions have intensified since a motor vehicle accident in 2024 which, in turn, has impacted her mental health.
It also states that the GP’s letter indicates that the review applicant is, at times, forgetful and can become very tearful and that such issues may have contributed to the review applicant’s often convoluted and contradictory evidence given at hearing.
It was submitted that the review applicant and the visa applicant sought to meet each other in [Country 1] however, the authorities granted a Visitor Visa to both sisters for different periods. Therefore, the visa applicant did not travel to [Country 1] as she would have been unable to meet the review applicant. It was submitted that had the visa applicant been adamant on applying for a protection visa (or similar), visiting [Country 1] without the review applicant would not have been an issue. It was further submitted the visa applicant resides in Pakistan and has a comfortable life; she operates a business and has extensive family.
The letter from the GP dated 30 January 2025 states the review applicant has been suffering from depression and anxiety which have aggravated since she had a motor vehicle accident in April 2024. Injuries from the accident resulted in her living with chronic pain [that] has also been contributing to her mental health. It states she has been forgetful and tearful at times. It also states that the visit of the visa applicant with whom she is close could possibly and effectively make a difference in the course of her illness and mental wellbeing.
The medical certificate issued by Centrelink on 17 December 2024 states that the applicant has been diagnosed with [medical conditions] with mixed anxiety and depressive disorder.

CONSIDERATION OF CLAIMS AND EVIDENCE

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.
In the present case, the visa applicant seeks the visa for the purposes of visiting her sister. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222. The visa applicant sought the visa for the period 1 May 2023 until 28 July 2023.
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 her application, the applicant declared that her previous application for a Visitor visa was refused in 2017. Evidence was provided that the visa applicant applied for and was granted a visa to enter [Country 1] in October 2014. At hearing, the Tribunal was told that she did not travel there.
The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 months
·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia
·8531 – must not remain in Australia after end of permitted stay.

FINDINGS

The Tribunal considers that the review applicant gave evidence in an open and honest this manner. Although the review applicant became emotional at times the Tribunal did not consider that her oral evidence was convoluted or contradictory.
The Tribunal accepts that the visa applicant wishes to visit the review applicant and that the review applicant is very keen for her to visit, particularly in the light of the fact that they are close, have not seen each other for extended period, the review applicant cannot travel to Pakistan and her current health situation.
The Tribunal accepts that the visa applicant can pay for her own airfare and that she will stay with the review applicant who will cover the costs of her visit while she is in Australia.
Although the review applicant did not provide the date of birth of one of her sisters as requested at hearing and did not confirm the migration history of her sisters, the Tribunal accepts the oral evidence provided that they came to Australia, at different times, and in different ways and were granted protection here.
The Tribunal is prepared to accept that the visa applicant has not experienced any problems in Pakistan for any reason related to their religion or ethnicity or for any political or security reason. However, the Tribunal also has had regard to the oral evidence provided by the review applicant that the visa applicant is an Ahmadi Muslim and that in Pakistan, Ahmadis live with some level of threat at all times and that they hide their religious identity.
The Tribunal also has regard to the fact that two of the visa applicant’s sisters, as well the review applicant reside in Australia after having been granted Protection visas. In particular, the Tribunal has concerns that that one of her sisters came to Australia because her nieces and nephews missed her and changed her visa status while onshore.
The Tribunal is prepared to accept that the primary motive for applying for the Visitor visa that the visa applicant has is to visit and spend time with the review applicant. Additionally the Tribunal has had regard to the incentives for the visa applicant to return to Pakistan include her family and her business and acknowledges these are not insignificant. However, in the light of the oral evidence regarding the persecution of Ahmadi Muslims in Pakistan, the family’s migration history and the number of family relatives who now reside in Australia, including one of her daughters, the Tribunal is not satisfied that she will not seek to change her visa status once onshore.
It is not in dispute the review applicant had a motor vehicle accident in April 2024 and suffered a number of injuries. Neither is it in dispute that she has a number of physical and mental health concerns, and the Tribunal accepts the opinions expressed that the review applicant may benefit from seeing her sister.
However, while the Tribunal is sympathetic to the review applicant’s situation, 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.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
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.

DECISION

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

Date(s) of hearing: 28 January 2024
Representative for the Applicant: Mr John Vevers (MARN: 1067816)