Ajiz (Migration)

Ajiz (Migration) [2023] AATA 1945 (19 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Sobia Ajiz
VISA APPLICANT:  Miss Namra Mushtaq
REPRESENTATIVE:  Mr Abdul Hamid Ajiz (MARN: 9788683)
CASE NUMBER:  2213368
HOME AFFAIRS REFERENCE(S):          BCC2020/404744
MEMBER:Christine Cody
DATE:19 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 19 May 2023 at 8:53am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting her sister who is an Australian citizen – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia – family links to Australia –changing and inconsistent evidence of both applicants – credibility of the applicants – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359
Migration Regulations 1994, Schedule 2, cl 600.231

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 August 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth). The review applicant is Ms Sobia Ajiz (formerly Sobia Mushtaq), a 39-year-old Australian citizen, who is the sister of the visa applicant.
The visa applicant, Namra Mushtaq, applied for the visa on 12 February 2020. 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.
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.
The review applicant was represented in relation to the review by her registered migration agent who is her father-in-law (she is married to the agent’s son). He told the Tribunal that he was present as an agent, not as a witness which the Tribunal indicated would be a separate role. He was also the agent when the visa applicant lodged the initial application with the Department.
The Department
According to the application forms, the visa applicant was born in Lahore, Punjab, Pakistan. She is 30 years of age and is unmarried. She sought a family visit for about 6 weeks (multiple visits of about 3 weeks each). The purpose is to attend her nephew’s birthday and to spend time and celebrate the new year with their family.
The applicant proposes to travel with her parents, Mushtaq Ahmed and Rukhsana Mustaq. The members of her family unit not accompanying her include:
·Her sister Qurat Ul Ain Mushtaq and her brother-in-law Muhmmad Shahzad;
·Her sister Warda Ali and her brother-in-law Chaudry Ali Hayat; and
·Her sister Moiza Mushtaq.
Her current employer is the Doctors Hospital & Medical Centre, Canal Bank, Johar Town, Lahore, Pakistan.
She will be self-funded for the trip: ‘I will support myself financially and my father will support me. Please see my bank statements, pay slips and my father’s bank statements. Also my sister and brother-in-law in Australia will provide me accommodation, meals, local travel and financially’.
The visa applicant has previously visited Australia.
The visa applicant provided numerous documents to the Department,[1] including:
[1] Some of which were not retained by the Department and were provided to the Tribunal upon its request by the applicant.
·Identity documents for the visa applicant, including National Identity Document.
·Travel documents for the visa applicant, including passports showing previous travel (including almost yearly visits to the UAE between 2010 and 2019), Singapore, Malaysia, Turkey and Australia, and previous flight documents.
·Employment documents for the visa applicant, including payslips, Employment Contract dated 7 February 2019 stating the visa applicant’s employment as an “MCPS Trainee in the Department Anesthesia, Shalamar Hospital”, a confirmation letter in 2021 that she has been working and she is valued, and a copy of a letter from Dr Mahmood Salahuddin dated 25 January 2022 confirming the visa applicant’s employment as a Continuous Quality Improvement Coordinator at Doctors Hospital & Medical Care since May 2021, and there is no objection to the grant of a visa.
·Documents from UNSW relating to the visa applicant’s previous study.
·Financial and other related documents for the visa applicant and her parents including bank statements in their names (and in the name of their father’s business, The Searock Industries, manufacturers of high class nuts and bolts in Pakistan), payslips for Dr Namra Mushtaq, CQI Coordinator in the Administration Department, documents about business and property ownership for a number of properties owned by the applicants’ father and The Searock Industries. Also provided were letters on the letterhead of “The Searock Industries” from the applicants’ father, Mushtaq Ahmed, stating that he is a businessman with good financial standing, requesting the visa be granted so they can travel as a family, as they have done in the past, he will support his daughter financially (and has provided evidence of his financial situation), and he and his wife already have visitor visas.
·Other documents including vaccination certificate for the visa applicant, itinerary.
·Copies of the visas granted to the applicants’ parents on 7 June 2022 valid until 7 June 2025, multiple entry, with a limit of 12 months length of stay from the date of each arrival.
·Financial and other documents relating to the review applicant and her family including Statutory Declarations by the review applicant and her husband Faizal Ajiz (both Australian citizens) confirming that they support the visit, they will be responsible for all expenses and that they will ensure that the visa applicant abides by the conditions of the visa and will depart before its expiry, their marriage certificate, covering letter by the visa applicant, sponsor, Council and water rates, sponsor’s son’s passport.
·The family registration certificate dated 19 March 2014 showing the details of the applicants’ parents and the 5 siblings of the family.
The delegate 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 a genuine visit only was intended. The delegate provided reasons including:
In assessing whether or not the applicant genuinely intends to stay temporarily in Australia, I have taken into account the information provided in the application, the applicant’s migration history and compliance with previous visas. I have also taken into account any supporting documents as well as the applicant’s personal circumstances, commitments, and incentive to return to their country of residence.
I have considered the applicant’s economic circumstances and found that their claimed income could not be considered significant in the context of overall economic/employment conditions and cost of living in their home country. As such it cannot be considered a strong incentive to return to their home country at the end of their proposed stay in Australia.
The delegate noted that the applicant provided further evidence of financial support from their sponsor and whilst the delegate took the offer of support into consideration, less weight was attached to this as it was not in of itself sufficient evidence of a genuine visit.
The delegate also noted that the applicant had declared family members who would remain in their home country during the applicant’s proposed visit to Australia. Whilst the delegate acknowledged that these family members may offer some inducement for the applicant to their home country, and had afforded it some weight, the delegate was not satisfied that the applicant’s family ties to their home country sufficiently demonstrated that the applicant intends a genuine temporary stay in Australia.
There are no non-disclosure certificates on the Department File.
The Tribunal
The review applicant provided an application for review form, passport identification page, and a copy of the notification and Department Decision Record.
On 12 April 2023 the Tribunal invited the review applicant to attend a hearing on 27 April 2023 to give evidence and present arguments. She was requested to provide any documents she sought to rely upon, and she was invited to provide information in response to a number of questions. Her responses to each question (provided 20 April 2023) are set out in italics:
1. Full name and date of birth, dates of arrival of any other of your close relatives (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephew) who have come to or visited Australia within the past 10 years.
Qurat: Details of Qurat’s travel to Australia in 2013, 2015/2016, and 2019 were provided (as were details of travel to and from other countries);
Mother: Details of her mother’s travel to Australia in 2015, 2017, and 2018 were provided (as were details of travel to and from other countries);
The visa applicant: Details of her travel to Australia in 2009, 2016, 2017/2018, and 2018 were provided (as were details of travel to and from other countries, including, since her last trip to Australia, travel to and from the UAE);
Warda: Details of her travel to Australia in 2009, and 2011/2012 were provided (as were details of travel to and from Schengen countries);
Moiza: Details of her travel to Australia in 2013/2014, 2018, 2019, 2020/2021 were provided (as were details of travel to and from other countries);
Father: Details of his travel to Australia in 2015/2016, 2017/2018 were provided (as were details of travel to and from other countries).
2. Full name and date of birth, dates of arrival / visit of any other close relatives you have sponsored or invited to visit Australia within the past 10 years.
She said that she had sponsored her sisters and parents, with the detail about their visits having previously been provided.
3. Updated information about the visa applicant’s employment and financial situation in their home country.
She is working as a continuous quality control improvement coordinator at a doctor’s hospital since 2021 and she receives a salary of PKR111,280 and has PKR2 million in her bank account.
4. Any other information relevant to the visa applicant’s activities or commitments or relationships in their home country that would encourage them to return at the end of a visit.
The visa applicant has a stable job in her home country. Her sister, Qurat ul ain Mushtaq, and parents are in home country which is more than an incentive to come back. The visa applicant and rest of the family members have extensive history of traveling which shows they are frequent travelers. The visa applicant completed her study from Australia in Masters in Public Health in 2018 from one of your most prestigious universities, University of New South Wales and paid a course fee AUD 44,000 per year. She had three more months after the exams to stay in Australia but she returned earlier as she had no wish to stay permanently in Australia. You will notice from travel history that all family members have abided by visa conditions in all the countries they have visited.
One family member would never ruin the history of other family members by over staying or remaining there permanently. Most importantly the applicant has appealed in AAT so that the case can be checked thoroughly.
5. Any information relating to any previous visa held by, or visa application made by, the visa applicant.
The applicant has held visas of Australia, Malaysia, Singapore, Turkey, UK and UAE in the past. The applicant holds a resident permit of UAE.
6. Any information concerning any other travel by the visa applicant outside their present country of residence.
(Discussed in response to question 1)
The Tribunal received a number of documents before the hearing designed show that the visa applicant has strong financial standing, economic and other incentives to return to Pakistan at the end of the proposed stay in Australia:
·A letter from the visa applicant dated 20 April 2023 was provided, stating that she travelled to Australia with her parents on numerous occasions including in 2005, 2009, 2016 and that she was also here as a student in 2017,2018; she has always abided by the conditions of her visas. She again wants to travel with her parents and they will all abide by the conditions of their visas. Her salary is consistent with any other comparable employee and she denies that this is relevant. She works full time, has support for the visit, and her ties in Pakistan are her sister Qurat and her parents who live in Pakistan: “this is more an incentive to return back to Pakistan” . She will take one month’s leave and then return to Pakistan.
·Her payslips as a post graduate trainee were provided, as were updated bank statements, a document showing a pay increase in 2022, and other similar documents/ previously provided documents. After the hearing, the Tribunal was provided with documents already provided and/or similar to/updating those previously provided, including in relation to their father’s financial position (assets and income, including in the UAE). Also provided were copies of the visa applicant’s bachelor’s degrees (Pakistan) (2015), Certificate of membership of the College of Anaesthesiology dated 21 October 2021 (Pakistan), her UNSW Master of Health Management Certificate (30 January 2019), her appointment letter dated 20 May 2021 (as CQI Coordinator), and her passport showing a residence certificate in UAE granted in 2021 and expiring in 2026, and further travel to the UAE. Her parents’ UAE residence permits were also provided, as were further bank statements.
The review applicant appeared before the Tribunal on 27 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Pakistan. The agent also attended the hearing. No interpreter was requested; the Tribunal was satisfied that the applicants were able to give evidence and present arguments and understand the proceedings.
The review applicant’s evidence included the following:
·The review applicant told the Tribunal that the visa applicant had been refused a visitor visa 3 times as the Department did not believe that she had a genuine intention to only stay in Australia temporarily. She cannot see any reason why the visa applicant was refused. She has a strong background and good migration history. When she was finishing her studies she had 3 months but did not utilise the whole remaining period of her visa.
·When the Tribunal asked the review applicant whether any of her family members had come to Australia on a visitor visa and stayed, she said that Moiza had. The Tribunal asked the review applicant about Moiza, noting that the information provided to the Tribunal by the review applicant stated that she had last left Australia in November 2021; it was not indicated that she had a permanent visa to live in Australia on the basis of marriage. The review applicant gave evidence (supported by submissions from the agent who said he knew all about the family’s circumstances) to the effect that the sister Moiza came to visit in Australia, she met someone here and she got married. She applied to stay here on the basis of a partner visa, however she then returned home to complete her studies, and then returned to Australia, where she resides. It was stated that she had complied with all the conditions of her visas.
·The review applicant said that the visa applicant does not want to get married and she is well settled in Pakistan.
·The Tribunal asked the review applicant about Warda. She said that she and her husband live in the UAE. She said Warda had come to visit her in 2009 and 2011, leaving in January 2012, and had not come since to Australia, and has not applied since that time to come to Australia.
·The review applicant confirmed that her parents have long-term visitor visas and said that they have not travelled since before COVID-19 because her parents are waiting for the visa applicant to be granted a visitor visa and they will all visit together as a family. She just wants to stay with her parents. The Tribunal put to the review applicant that the visa applicant may want to stay; her parents have long term visitor visas for Australia allowing them to spend significant periods here, and the visa applicant may also want to remain in Australia beyond a visitor visa. She responded no, her father has a good business and he will go back, and that the visa applicant likes her job and way of life better in Pakistan. She likes to visit other countries but to live in Pakistan. They have a lot and they are very well settled and they do not need to leave Pakistan for opportunities, and 99% of their relatives are in Pakistan. The Tribunal put to the review applicant that sometimes people come with a visitor visa and seek to stay. The Tribunal asked if the visa applicant has had any problems including because she is a woman[2] or for any reason, noting country information. She said the position of women is better now, her colleagues look up to her and she helped show Australian High Commission delegates around when they visited.
· The visa applicant said she has no intention to stay in Australia. She has a good job, she has a good income, she referred to her father and connections to Pakistan and the UAE; she assures she intends to return. If she had an intention to stay in Australia she could have done so before. Her hospital in Pakistan intends to send her to observe in the USA later this year so she will not stay in Australia.
[2] The DFAT report states that: Pakistan has one of the worst records for gender equality in the world. According to the World Economic Forum’s 2021 Global Gender Gap Report, Pakistan ranked 153 out of 156 countries for female economic participation and opportunity, educational attainment, health and survival, and political empowerment.
At the hearing the Tribunal was provided with the review applicant’s payslips showing a salary of less than $200 per week, as well as her husband’s salary showing that he works at the Department of Home Affairs showing a net salary of about $2000 per week.
Evidence from the hearing is discussed further below.
In addition to the evidence provided post hearing referred to above, the Tribunal was also provided with a letter from Qurat post hearing, discussed further below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 who is an Australian citizen. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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)).
The Tribunal accepts that the last substantive visa held by the visa applicant was a student visa (TU-500). Evidence was given, and the agent submitted, that she complied with the conditions. The Tribunal was informed that she completed her Master in Public Health and that there was no subsequent bridging visa. The Tribunal gives this positive weight.
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.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The Tribunal considered the oral evidence of the review applicant (supported by that of the visa applicant) which was consistent with the written evidence, and which the Tribunal accepts, for the purposes of this application, that: the applicants’ father is a businessman who owns a number of properties, a business and funds in Pakistan and UAE. It accepts that the visa applicant is currently employed in a hospital in Pakistan which employment she has held for a number of years, that she has savings in the bank, and that she and her parents have the right to reside in the UAE.
The Tribunal accepts that the visa applicant would be financially supported by her father and her sister and her sister’s husband, that she has her own funds and that she would not financially have a need to work in Australia. The Tribunal is prepared to accept that the visa applicant does not currently have any work or studies organised in Australia. It is also accepted that the review applicant is prepared to offer a bond. The Tribunal also accepts that the visa applicant has previously studied in Australia and accepts for the purposes of this application that she has complied with the conditions of her previous visas. It also accepts that the review applicant and her husband are Australian citizens, and that the applicants’ parents and other siblings appear to have previously complied with the conditions of their visas[3].
[3] A note on the Departmental file stated that there was a family member who had an adverse immigration history, however no details were provided in that note, including even the name of the family member nor in what respect that person’s immigration history could be considered “adverse”. Further, this was not referred to in the delegate’s decision record (provided to the Tribunal by the applicant), which the Tribunal would expect if there was an adverse immigration history that was relevant to the determination of the current case. In all the circumstances, including the complete lack of detail, the Tribunal does not give any weight to that note, also noting the evidence of the review applicant was that there was no adverse immigration history of her family members, which the Tribunal has been prepared to accept for the purposes of this application.
However, the Tribunal’s concerns with the credibility of the applicants means that it is not satisfied that the visa applicant would comply with the conditions of the visa sought, nor that she genuinely intends just a visit.
In this regard, the written evidence provided to the Tribunal before the hearing refers to and relies upon the presence of family members in Pakistan as an incentive for the visa applicant to return.
However, the applicant’s parents have long-term visitor visas, their sister Moiza is already in Australia with a permanent partner visa,[4] and the sister Warda resides out of Pakistan in Dubai with her husband. Although the visa applicant provided a statutory declaration about her circumstances to the Tribunal prior to the hearing, she did not mention this information about Moiza, and she stated that Qurat and her parents formed part of her incentive to return to Pakistan.
[4] Evidence of the review applicant at hearing.
Concerning the sister Qurat, the Tribunal asked the review applicant what Qurat does. She said that Qurat assists students with immigration matters to travel to countries like Canada. The Tribunal noted that Qurat had last come to Australia in 2019; it checked her travel to Australia against the written submissions and the review applicant agreed with this, and that the last time she had come to Australia was 2019. The review applicant said that Qurat complied with the conditions of her past visas. The Tribunal asked whether Qurat had applied to come to Australia since 2019 and the review applicant’s response was “I do not recall that”. The Tribunal asked her why she would not recall if her sister had applied to come to Australia since she was last here in 2019, and the review applicant responded that this is because Qurat travels to numerous countries. The Tribunal noted that Qurat is her sister, and she is telling the Tribunal that she doesn’t know if Qurat has applied to come to Australia since 2019, which was difficult to understand. In response she said “I don’t think she has applied since then”. The Tribunal put to her that it did not understand why she would not know whether or not her sister had applied to come to Australia, the country where the review applicant resides, since she was last here. The review applicant said she doesn’t have knowledge of her applying, or recollection of her applying. The Tribunal asked whether the agent had any knowledge of this and he said that Qurat had not made an application to come to Australia since her last travel to Australia. The Tribunal asked how he could be certain of that, and he said that this is because he is the review applicant’s father-in-law and he knows the family.
The Tribunal then obtained some information about Qurat from Departmental records, and it gave the review applicant a further opportunity to tell the Tribunal whether Qurat had applied for a visa to Australia since she was last in Australia; the review applicant again said that “in my knowledge, no”. The Tribunal put to her that this response was difficult to accept. She responded by saying that Qurat doesn’t always tell the review applicant when she applies to travel to countries. The Tribunal put to her that this may be the case regarding other countries, but it does not understand why Qurat would not tell the review applicant if she had applied to come to Australia.
The agent then said that he recalls that Qurat may have applied for a Subclass 457 skilled visa which she had withdrawn as the nomination had not been approved. The Tribunal noted that it had already asked him whether he was aware if Qurat had applied for any other visa and he had definitively said no. He then said that he thought the Tribunal was only asking about applications for visitor visas. The Tribunal said that it had specifically asked whether she had made an application to come to Australia; the question had not been restricted by reference to visitor visas. The review applicant then said that she thinks Qurat applied to come to work here. The Tribunal asked her why she did not disclose this before. The review applicant then said that she too thought the Tribunal was just asking about visitor visas; the Tribunal noted again that it had not restricted its question to this.
The Tribunal asked whether Qurat has any other application pending and the review applicant said no. The Tribunal asked the agent who said he didn’t know. The Tribunal noted that he had earlier said he did know about the family and their visa applications. He said that one doesn’t always remember.
The Tribunal asked whether the review applicant was in contact with Qurat, and she said yes, she has contact every day/every second day on a WhatsApp ‘sisters group’ that they all use to communicate, and the review applicant has telephone calls with Qurat. She said that Qurat is well settled in Pakistan, she is working there, her husband earns well there, they have a big house.
The visa applicant was also asked about Qurat. The visa applicant said that she sees Qurat 2–3 times per month and the last time Qurat applied to come to Australia was in 2019, when she did come. Qurat has 2 children in Pakistan and it is her intention to stay in Pakistan. It was only after the Tribunal put to the visa applicant that Qurat had made an application to come to Australia since 2019 that the visa applicant changed her evidence and said that Qurat’s husband had applied to come to Australia on a business visa, Qurat and her children are dependents [this is the second application Qurat had made]. The Tribunal put to her that her initial evidence was contrary evidence to this. She said that Qurat intends to stay in Pakistan. She claimed that the review applicant did not know about Qurat’s plans, but she could not say why the review applicant would not know about Qurat’s plans. The Tribunal said that this was difficult to accept.
The Tribunal put to the review applicant information, relevance and consequences pursuant to s 359AA of the Act, including that:
·Departmental records show that since 2019 Qurat has been trying to come to Australia. She lodged firstly a skilled visa application and withdrew that [according to the review applicant/ her agent], and currently she and her children have a pending application as dependents upon Qurat’s husband’s Subclass 188 (business innovation and investment) visa application.
·The visa applicant had given evidence that Qurat had made no other application to come to Australia since 2019, however she subsequently indicated that she knew this was wrong, which undermined her credibility.
·The review applicant’s initial evidence was that she did not know that her sister Qurat had applied (twice now) to come to reside in Australia since 2019 which, given the contact between the sisters, did not seem credible.
·The Tribunal noted that the whole family is seeking or able to leave Pakistan, the majority to Australia (all except for Warda), which indicates that the visa applicant may not have an incentive to return to Pakistan.
The review applicant asked for time to speak to her agent and the Tribunal agreed. The review applicant then responded by saying that when she gave her responses, she was “concentrating” on visitor visa applications, and she assumes the visa applicant was also doing that when answering the Tribunal’s questions. She said that she herself did not have “much” knowledge about visa applications made by Qurat; the Tribunal put to her that she had not been clear as to any knowledge of subsequent visa applications, so it is trying to understand what her knowledge was. She said that she recalled, after her agent raised Qurat’s skilled visa application that had been withdrawn, that she did have some knowledge about this. She then claimed that she had “very little knowledge” about the business visa applied for by Qurat’s husband and Qurat and the children. The Tribunal asked her what was this “very little knowledge” that she had had, and she said just that Qurat’s husband had made a business visa application and that the family were dependents. She then added that she thinks that the visa applicant also did not have “a lot of knowledge” about Qurat’s visa applications. The Tribunal put to her that it had been represented to the Tribunal in the 20 April 2023 letter that there were 3 family members who were incentives for the visa applicant to return to Pakistan (her parents and Qurat) but that actually her parents have the right to be in Australia and Qurat is applying to be in Australia, so it does not understand how she can represent to the Tribunal that these persons’ presence in Pakistan are incentives for the visa applicant to return. The review applicant said that Qurat is very settled in Pakistan and has a big house and she is happy there.
The Tribunal asked the review applicant whether she had discussed the applications made by Qurat with Qurat or any other sibling and the review applicant said no. The Tribunal asked her how then she could say that she had some knowledge about both of these past visa applications. She replied that she received the knowledge from her agent; the Tribunal asked when she had received this knowledge and she said in the past. The Tribunal put to the review applicant that it has concerns with her credibility.
The agent submitted that all of the members of the family have complied with the conditions of their visas, and the visa applicant will comply. They have substantial investments in Dubai and they have residence visas for Dubai and if they want to, they could settle in Dubai. It was submitted that it is not the review applicant’s fault if Qurat has applied for a Subclass 188 visa (as a dependent) and has not told anybody. The Tribunal put to the agent that the review applicant had just said she was aware of this application made by Qurat’s husband, with Qurat and the children as dependents, and the withdrawn application, thanks to information given to her by the agent. The agent said he didn’t know. The Tribunal noted that this was inconsistent with the evidence of his client, the review applicant. The agent then said that the Subclass 188 visa was discussed generally but he did not know that she had made the application (as a dependent upon her husband). He also submitted that the siblings had provided the information for the written submissions; the Tribunal does not accept that this can overcome the concerning evidence of the applicants about Qurat’s visa applications to come to Australia.
After the hearing the Tribunal received a letter from Qurat which stated as follows:
I am writing this letter to clear up my situation about visa Subclass 188. The visa stream which is in process is Business Innovation Subclass 188 and it was applied in December 2021. My husband is the main applicant and I along with my children are dependents in application. This was my family's private matter which I didn't deem necessary to share with everyone. I casually discussed this with my sister, Namra Mushtaq. She never knew what stage my application is or what is the status/ progress of my application. I did not discuss it with any other family member including my sister, Sobia Ajiz. She was not aware of it. I did not discuss this because firstly information that was required by the tribunal was about arrival dates of close relatives who visited Australia in the last 10 years and not about visas which are in process of close relatives or family. Secondly, I am a married woman with a separate family and being a married person I have matters I keep to myself. I am surprised that this was made an issue in the hearing which was conducted on Thursday April 27th, 2023 that I did not discuss It with my sister, Sabia Ajiz. It is true that we sisters share a very close bond with each other and we regularly talk on text messages but I believe, even in siblings, no matter how close they are, there are private matters especially when you are married. It is not very uncommon that a married woman with a separate family does not share a matter with the whole family. I have an independent family with a husband and two chlldren and our matters are private, not all of them are discussed with the whole family. Moreover, as stated before, at the time of providing information to the tribunal, I believed this Subclass 188 visa has nothing to do with a visitor visa applfcation. When I provided my 10 year travel history, my focus was on the travel and arrival/ exit dates of visas and not on the visas in process or visas withdrawn. Please consider the application of my sister, Namra Mushtaq, as an independent case. My application has nothing to do with the case of Namra Mushtaq's visitor visa.
The Tribunal accepts that in the Tribunal’s request for information it did not ask for visa applications made and withdrawn/pending. However, this is not the point. The Tribunal asked both applicants at hearing about any visa applications made by Qurat to come to Australia, and neither of them disclosed that Qurat had made visa applications to come to stay in Australia. The Tribunal had not confined its questions to visitor visa applications.
The Tribunal notes that the review applicant’s initial vague response as to whether Qurat had made another application to come to Australia was different to her response concerning the other 2 sisters, the visa applicant and Warda, about whom she was very precise (the visa applicant had made 3 subsequent applications to come to Australia and these had all been refused, and Warda had made no further applications to come to Australia since her last travel here). The difference in her responses caused concern; the Tribunal considers that her evidence about Qurat was evasive. It was only after the Tribunal put that it understood that Qurat had made another visa application since her last time in Australia, that both the agent and the review applicant volunteered that Qurat had made a skilled visa application to come and work here (which was withdrawn because the nomination was not successful). The review applicant stated, and the agent submitted, that there was no knowledge of any current ongoing visa application of Qurat to come to Australia. Yet the review applicant indicated that she did have some knowledge in the past of this from the agent (who denied this).
When the Tribunal asked whether the review applicant would know if the visa applicant had any problems in Pakistan, she said she would know because they share everything, they are very open with each other. Qurat’s letter also states that the sisters have a close bond.
Given the contact between the sisters, the initial evasive evidence of the review applicant and the late volunteering of information about a skilled visa application only after the Tribunal put that it was aware that Qurat had applied for another visa, and the late volunteering that she also had “a little knowledge” of the Subclass 188 visa application, the Tribunal considered the review applicant to be unreliable in her evidence, and it was not prepared to accept the agent’s submissions nor to place weight on the letter from Qurat. Further, the visa applicant’s changing and inconsistent evidence about these matters also indicated that her evidence is unreliable.
The Tribunal does not accept any of the explanations offered for the changing and inconsistent evidence of both applicants. The Tribunal does not accept that the applicants did not know about Qurat’s repeated attempts to come to Australia after her last 2019 travel here, and indeed both applicants changed their initial evidence when the Tribunal put contrary information to them. The Tribunal does not accept that the applicants are credible witnesses. The Tribunal has considered the arguments from both applicants and the agent (and Qurat) that the visa applicant’s application should be considered separately to any application made by Qurat. As put at hearing, the Tribunal can take into account positive aspects of travel of other family members, as well as concerns raised in relation to other family members. The Tribunal considers that the applicants’ evasive and untruthful evidence about these applications adversely affects their credibility in relation to the visa applicant’s current application.
As put at hearing, Qurat’s attempts to come to Australia, Moiza’s right to reside in Australia and the parents’ long term visitor visas undermine the argument that relatives are an incentive for the visa applicant to return. The Tribunal put to the review applicant that Qurat wanted to stay here, Moiza is here (the review applicant said this), her parents have the right to be here, Warda is not in Pakistan as she lives in the UAE. The Tribunal said that it has concerns that the visa applicant will not return. These concerns remain.
In summary

The Tribunal has considered that the review applicant is prepared to offer a bond and the assurances that the visa applicant will return, as well as the past travel history and compliance with visa conditions of the visa applicant and her family members, the father’s wealth, the visa applicant’s employment, their right of residence in the UAE, and that there may be some other relatives in Pakistan. It has considered all of the matters above, including the assertion that the visa applicant intends to go to the USA to observe in a hospital. These matters do not, however, overcome its concerns with the credibility of the applicants and the concern that the presence of the review applicant and Moiza in Australia, the intention of Qurat to come to Australia, the right of their parents to be here, and the lack of siblings in Pakistan, are a significant incentive for the visa applicant to seek to remain permanently in Australia. The Tribunal is not satisfied that the visa applicant would comply with the conditions that would be imposed on the visa given that these conditions are for a temporary visa and the Tribunal does not accept that the visa applicant’s intentions are for a temporary visit. The Tribunal is not satisfied that the visa applicant intends a genuine temporary visit as asserted by the review applicant (and the visa applicant, the agent, and the correspondence of her parents and Qurat).
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.
Christine Cody
Member

[2023] AATA 1945

19 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice