Akhtar (Migration)

[2021] AATA 1393

Akhtar (Migration) [2021] AATA 1393 (8 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Javed Akhtar

VISA APPLICANT:  Mrs Anar Bibi

CASE NUMBER:  1822225

HOME AFFAIRS REFERENCE(S):          BCC2018/2502074

MEMBER:Wendy Banfield

DATE:8 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2021 at 1:47pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – Ahmadi Muslims in Pakistan – country information – pending Sponsored Parent (Temporary) (Subclass 870) visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2018 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 4 July 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because it was considered that the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant (sponsor) appeared before the Tribunal on 9 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The review applicant was represented in relation to the review by his registered migration agent.

8. Prior to and after the hearing the following evidence was submitted in support of the application for review:

   ·     Representative’s submission dated 29 October 2020;

   ·     Affidavit of Anar Bibi dated 15 February 2021.

9. The Tribunal also had regard to evidence submitted to the Department at the time of application.

   The hearing

10. The sponsor advised the visa applicant has applied to travel to Australia to visit him and his wife and children, as well as his stepbrother’s family. He said she wants to see how they are living but would not want to stay. The visa applicant is a widow, the sponsor’s stepfather having passed away. The sponsor stated he had gained residency in Australia [13 years ago].

11. The sponsor’s wife then came to Australia on a partner visa. The visa applicant has applied for a visitor visa three times in the past all of which have been refused. The sponsor’s stepfather, stepbrother, sister and niece have also been refused visitor visas.

12. According to the sponsor his mother has never travelled overseas before. She currently lives with her sons and a daughter and they support themselves through farming. The visa applicant has adult children, nieces and nephews in Pakistan and looks after her grandchildren. It was submitted there are no problems for the family in the area where they live. The sponsor was asked about his stepbrother’s residency in Australia and he claimed not to know anything about it because his brother “lives separately”. The sponsor stated he has travelled back to his home country since coming to Australia but no one in his family has been able to visit him.

13. The sponsor advised he runs a cleaning business and would be prepared to pay a security deposit of $15,000 in relation to his mother’s visitor visa. The sponsor was asked if he understood the reason for the visa refusal and he replied it was because the family are Ahmadi Muslims. It was claimed the visa applicant owns the property she lives in as well as a second property and has a good life in Pakistan. The visa applicant is also the subject of a Sponsored Parent (Temporary) (Subclass 870) visa that is yet to be decided. The representative’s statement of 29 October 2020 declares the visa applicant would not breach the conditions of a visitor visa because of the ongoing application for a Subclass 870 visa and there is no intention to apply for a permanent visa as the visa applicant is not eligible.

    Country Information – Ahmadis

14. The Tribunal had regard to relevant country information about Ahmadis in Pakistan:

    Ahmadiyya is a religious movement based on Islam founded in the Punjab in the late 1800s by Mirza Ghulam Ahmad. Ahmadis consider themselves Muslims, follow the teachings of the Quran, and believe Ghulam Ahmad was the Mahdi (a prophet who would appear at the time of the second coming of Jesus Christ, and fill the world with justice and equality prior to the Day of Judgement). Sunni and Shi’a Muslims believe the Prophet Muhammad was the last of the prophets, and many consider Ahmadis heretics.

    Ahmadis are not readily identifiable by their appearance, language or names. Many Ahmadis do not publicly identify for fear of persecution, maintain a low profile in the community to avoid societal discrimination and violence, and refuse to take part in the census. Estimates of the number of Ahmadis in Pakistan range between 500,000 and 4 million. Media articles on the national census reported 167,000 Ahmadis in Pakistan.

    Most Ahmadis live in Punjab. Rabwah, Punjab is considered the Pakistan headquarters of the Ahmadi community (population is around 95 per cent Ahmadi). According to the UK Home Office, the main population centres for Ahmadis in Pakistan, aside from Rabwah, are Sialkot, Quetta, Multan, Rawalpindi, Karachi, Lahore and Faisalabad. Pakistan’s Ahmadi community is relatively well educated and prosperous, and community leaders are very active political and diplomatic lobbyists. Many Ahmadis live overseas, and the community has an active diaspora in Australia. Leaders of the movement, including the current Supreme Head, Hazrat Mirza Masroor Ahmad, have resided in the UK since 1984.

    Ahmadis face high levels of official discrimination in Pakistan and are not able to practise their religion freely. In 1974, the Pakistan government amended the Constitution to state explicitly that Ahmadis were considered non-Muslims. In 1984, the government of General Muhammad Zia ul-Haq promulgated Ordinance XX, which banned Ahmadis from: publicly practising their faith; using non-Ahmadi mosques or public prayer rooms for worship; using Islamic texts for their prayers; performing the Muslim call to prayer; producing, publishing or disseminating religious materials; using the traditional Islamic greeting in public; seeking converts; and publicly quoting from the Quran. Ordinance XX also banned Ahmadis from identifying or ‘posing’ as Muslims.

    In practice, the community reports Ahmadis can be charged for using the standard Islamic greeting or naming their child Muhammad. Punishment for Ordinance XX offences is up to three years’ imprisonment and a fine. Ahmadis are exempt from the 2.5 per cent zakat deductions on personal income mandatory for Muslims in Pakistan.

    …

    In 2017, Police prosecuted 77 Ahmadis under anti-Ahmadi legislation, and nine Ahmadis were in prison on faith-related charges in 2017. Ahmadis claim prosecutors and judges discriminate against community members by trying them under blasphemy laws, which carry more severe sentences than Ordinance XX offences. Retired Captain Muhammad Safdar, former prime minister's son in law and a member of then-ruling PML-N, also accused Ahmadis of acting against the country's interests in 2017. Safdar called for action against the Ahmadi community, and stated Ahmadis were ‘a threat to this country, its Constitution and ideology’.

    …

    Ahmadis report they feel safest in Rabwah, although an Ahmadi who had drawn adverse official or societal attention would not be safe there. Ahmadis face the highest risk of discrimination and violence in rural villages where no extended Ahmadi community exists, although the security of individuals largely depends on the attitude of the local cleric. Ahmadis report the highest levels of discrimination in rural areas in Punjab. After Punjab, Ahmadis consider Karachi to be the most dangerous location.

    Human rights groups consider Ahmadis to be the most vulnerable group in Pakistan, due to legal discrimination and growing religious intolerance. DFAT assesses that Ahmadis in Pakistan face a high risk of official discrimination, which affects their ability to practise their religion freely and limits the extent of their political and social engagement. DFAT assesses that Ahmadis face a high risk of societal discrimination and violence, which intensified in late 2017 and increased in 2018 as a result of the major Khatm-e-Nabuwat protests at the end of 2017 and the 2018 election. [1]

    [1] DFAT Country Information Report - Pakistan

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting her family members in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

18. 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)).

19. There is no evidence before the Tribunal of any non-compliance with conditions of a previously held visa as the visa applicant has not travelled to Australia before.

20. 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.

21. The Tribunal accepts the visa applicant does not intend to breach condition 8101 because the evidence indicates she will be supported in Australia by the review applicant who has his own business and is financially stable. There is no evidence before the Tribunal to indicate the applicant would seek to engage in study or training that would breach condition 8201. Condition 8503 refers to entitlement and is not a condition that involves compliance.

22. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

23. The visa applicant is a 57-year-old widow living in Roda Village, in the Khushab District of Punjab, Pakistan. She lives with her adult sons and a daughter on a farming property. It is claimed the visa applicant takes care of her grandchildren who are residing in the same area. The sponsor is the visa applicant’s Australian citizen son who was born in Pakistan. The sponsor was granted [permanent residency in Australia]. While the Tribunal accepts it cannot be certain the visa applicant would take the same route as her son and apply for [permanent residency] in Australia, the Tribunal finds there are circumstances that may encourage her to remain in Australia. The sponsor has his own business in Australia and can support his mother. He has a wife and five children. The visa applicant has another son in Australia who has four children. The applicant’s two sons and nine grandchildren in Australia as well as an improved standard of living, may be a reason for her to seek to remain in Australia after her permitted stay. It was claimed the visa applicant lives a good life in Pakistan, but she belongs to a vulnerable social group who according to DFAT information, face legal discrimination and religious intolerance. From the information available, the status of the visa applicant’s religion in Pakistan has a major impact on daily life and may be a reason for her not wanting to [return]. When asked about his stepbrother in Australia the sponsor became vague and claimed not to know how he gained residency in Australia. This was concerning since the visa applicant, the sponsor’s mother, wants to visit her other son and his family too. The Tribunal does not accept the sponsor is not aware of the background to his stepbrother having gained residency in Australia.

24. The visa applicant’s family in Pakistan were declared to be her adult children, grandchildren and nieces and nephews. The Tribunal accepts the visa applicant has ongoing personal ties to her home country but is not satisfied this would act as a strong incentive to return since she also has a large number of family members in Australia.  It was claimed the visa applicant owns two properties in her village, but the Tribunal has no independent evidence regarding the visa applicant’s current income or ownership of property or assets in her home country that would demonstrate significant economic ties to Pakistan.

25. The visa applicant provided a statutory declaration in which she declares the main reason for coming to Australia is to visit her son, daughter-in-law and grandchildren. It is claimed she would return to Pakistan after visiting her family in Australia because she has friends and relatives there. The Tribunal has taken the visa applicant’s undertaking into account but having weighed the evidence, is not satisfied the visa applicant’s personal circumstances would encourage her to return to her home country as the end of the proposed visit to Australia. The Tribunal is also not satisfied a security deposit would ensure the visa applicant departs Australia as required. Having considered the visa applicant’s individual circumstances and the evidence provided in this case, the Tribunal is of the view the visa applicant may seek to remain in Australia after end of the permitted stay, in breach of visa conditions and against the purpose for which the Visitor visa may be granted.

26. The Tribunal understands the visa applicant wants to visit Australia to see how and where her son and his family are living and to spend time them but in the circumstances, the Tribunal finds the visa applicant’s wish to visit Australia does not outweigh the concerns outlined in this decision.

27. The applicant’s representative, in a written submission dated 29 October 2020 refers to Departmental policy indicating a flexible approach should be taken to visitor visa applications made outside Australia by parents of settled Australian citizens; permanent residents; and eligible New Zealand citizens in circumstances where the parents have not yet applied for, or do not intend to apply for, parent migration. The Tribunal notes the policy also states: As in all cases, the applicant would still need to meet the genuine temporary stay requirement and any other relevant requirements… If the s65 delegate is not satisfied the applicant intends a genuine temporary stay, the visa must be refused. In this case the Tribunal accepts a flexible approach should be taken but each decision is based on the individual circumstances of the visa applicant. Based on the applicant’s stage of life, situation in Pakistan and her extended family in Australia, the Tribunal is not satisfied the applicant meets the genuine temporary stay requirements.

28. 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

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

    Wendy Banfield
    Member