Ali (Migration)

[2021] AATA 3590

Ali (Migration) [2021] AATA 3590 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Amjad Ali

VISA APPLICANT:  Ms  HAMEEDA

CASE NUMBER:  1909839

HOME AFFAIRS REFERENCE(S):          BCC2018/5771831

MEMBER:Stephen Conwell

DATE:8 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 08 September 2021 at 8:04pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – security situation in Balochistan – support for the sponsor’s wife during pregnancy and birth – family’s previous compliant visits – family and business commitments in Pakistan – medical  benefits and free travel within Pakistan – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211

CASES

Khanam v Minister for Immigration & Citizenship [2009] FCA 966  

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 11 February 2019 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 21 December 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.

1. 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.

2. The delegate refused to grant the visa on the basis that the visa applicant (applicant) did not meet cl.600.211 because the delegate was not satisfied that she genuinely intended to visit Australia temporarily for the purpose for which the visa would be granted.  In denying the visa application the delegate expressed concern regarding the unstable security situation in applicant’s home province of Balochistan, in Pakistan.

3. The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

4. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.

5. The parties participated in the hearing by telephone on 8 September 2021 to give evidence and present arguments. The Tribunal received oral evidence from the sponsor and his wife.  The applicant and her husband were available in Pakistan to attend the hearing, however the  interpreter booked for the hearing was, shortly before its commencement, unable to attend and the Tribunal had difficulty arranging another interpreter on such short notice. In any event, the Tribunal, upon reading the evidence and written submissions, was satisfied that the evidence of the sponsor and his wife would be sufficient for the hearing to proceed in English.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

7. The sponsor explained that he arrived in Australia in 2012 on a Student visa and was later granted a Skilled – Nominated (subclass 190) visa in 2014. He married in Pakistan in 2014 and returned to Australia with his wife. Both of them are now Australian citizens.

8. The couple’s first child was born in Australia in 2017. The sponsor’s parents-in-law were granted Visitor visas and travelled to Australia to assist the couple during this time. They stayed with the couple from January to April 2017 and are said to have complied with all visa conditions, including departing Australia before expiry of their visas.

9. In 2019 the sponsor lodged a Visitor visa application for his mother to visit to support the sponsor’s wife during the birth of the couple’s second child.  The couple were hoping for the visa to be granted as they now had a two year-old daughter and the pregnancy was determined to be a breech birth. The application was refused and is the subject of this merits review.

10. In October 2020 the couple’s third daughter was born by caesarean section due to the complications with the sponsor’s wife’s previous pregnancies. The couple’s only immediate family is the sponsor’s sister-in-law, who also lives in Melbourne.  The couple now have three daughters under the age of five years, which the sponsor’s wife cares for. The sponsor has a busy and successful career as an  IT consultant via his own company.

11. The Tribunal accepts the medical evidence in support of the claims regarding the medical complications of the sponsor’s wife’s three pregnancies. It also accepts the claims regarding the sponsor’s career, including his company registration, his consultancy contract with a major Australian bank and evidence of his weekly remuneration.

12. In terms of the sponsor’s family, he has a brother and three sisters. One sister lives in Germany, but his remaining three siblings live in Pakistan, as do his parents. All his siblings are married. The family are all Shi’a Muslims, whose ancestral home is in Quetta, the capital of Balochistan province, Pakistan.

    Cl.600.211(a)

13. In considering whether an 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)), however because the applicant has not previously travelled to Australia, this is not relevant.

14. However the Tribunal accepts the evidence that the sponsor’s in-laws both visited Australia to support their daughter, for the birth of couple’s first child in 2017.  They had a 3-months’ Visitor visa and complied with all visa conditions, including departing before visa expiry.  The Tribunal also notes that the applicant’s passport shows that she and one of her daughters made a religious pilgrimage to Iran in 2016 and returned to Pakistan at the end of this visit, in compliance with all visa conditions.

15. The sponsor addresses this in his statutory declaration, stating that his mother “has no intention in staying longer and she will definitely return back to Pakistan due to the incentives listed below”:

    ·My mother spent a very long and successful relationship with my father (38 years) , and she has been completely dependent on him. She has never lived without him and will not be able to live without him at this stage of life.

    ·She has a son, two daughters and three grandchildren back in country. She has her sister and a brother where she is enjoying every moment of her live [sic] with them.

    ·My mother has no qualification and does not speak English. She has spent all her life as a housewife looking after household chores. She can't communicate in English and therefore can't socialize here in Australia.

    ·She has strong bonding with neighbours, our relatives and community members in Quetta, where she meets with everyone. She is coming out of her comfort zone to visit us and will never be able to settle here. I hope that coming to Australia will give her good memories that she can share with others when she returns.

    ·Her daughter Squadron Leader Saira Batool is currently serving Pakistan Airforce (PAF) (https:/l in Islamabad, where she can live as a "Dependent". My mother is enjoying a lot of benefits such as free medical, free flights operating under PAF, discounted accommodation in all PAF bases across Pakistan, and many more. She doesn't want to lose all those benefits.

    ·My mother is of old generation and has no interest in staying any longer in Australia. She prefers to often see her children, grandchildren, family and community members. She was born in Quetta and has all memories in there.

    ·She has strong religious beliefs and often wants to visit holy sites i.e., Saudi Arabia, Iraq, Iran, etc. - all of them are close to Pakistan.

16. The Tribunal notes the letter dated 25 August 2021 written by the sponsor’s sister, a squadron leader in the Pakistani Air Force.  The letter confirms that her being a  member of the armed forces entitles her and her family (including her mother, the applicant) to amongst other things, free medical  benefits and free air travel within Pakistan.

17. Taking this evidence into account the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    cl.600.211(b)

18. The Tribunal must also consider whether the 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:

    ·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.

19. The Tribunal has no concerns that the applicant at 56 years of age would be coming to Australia to work, given her limited language ability and the fact she has worked within the home for the majority of her life.  The sponsor has provided credible evidence of his family’s grocery store business and his father’s other streams of income that enable his parents to live in reasonably comfortable circumstances in Pakistan. Similarly, the Tribunal is satisfied that the applicant is not not coming to Australia to maintain an ongoing presence by pursuing studies of any kind, for any duration. 

20. Probative evidence has been sighted by the Tribunal to support the claims made about the applicant’s’ financial circumstances, including her husband’s leasehold of the property from which the family store operates, his savings account in Pakistan (albeit that this evidence dates from the time of application in December 2018)  

21. According to the sponsor’s statutory declaration dated 30 August 2021, his father is the present custodian of a 60 year-old family groceries store in Quetta. Photographs of the store and its website address were submitted in evidence. The sponsor states,

    My father had to close the store back in 2010 due to terrible security situation and resided with everyone in Karachi. When situation got better in 2018, they moved back to Quetta and started construction of the building. Sahebi Store was reopened on 31st December 2020 and has been performing very well - with three months turnover of PKR 34,895,770 (AUD 293,241.76 with ex rate: 1 AUD/ PKR 119 .0 as of 25/08/2021). My father is fully occupied helping my brother in running his business, and therefore he will not be able to accompany my mother in her visit to Australia.

22. The sponsor describes his own consultancy business and his financial means to sponsor his mother’s visit in the following manner,

    I have AUD 75,279.36 in NAB savings account and AUD 14,409.50 in my CBA current account. Moreover, I am running [an] IT consulting business (XXX Pty Ltd - ABN: xxxx8132) and currently contracting with DT Consulting Pty Ltd (name redacted) at   AUD 800 / day. I am assigned at [a] leading Australia company (XYZ Banking Group) as an API Automation Tester. I will bear all expenses associated with my mother's visit to Australia that include travel, accommodation, food, medical, and any other [expenses].

    I am renting a three-bed room house (XXX,  Craigiebum Victoria 3064), and have room available for my mother. All I want for my mother is to visit us, take back some good memories and then visit us again when she wants, or if we need her.

    I assure you that my mother will comply with all the conditions to which Family Sponsored Subclass 600 visa would be subject, and will return before three months.

    I am willing to deposit security bond of AUD 10,000 or more.        

23. Whilst there is no current evidence of the applicant’s financial circumstances, the Tribunal is persuaded by the fact that the sponsor’s father is the current custodian of a 60 year-old family grocery store; it also accepts that his father has other streams of income which afford his family a degree of affluence in Pakistan. The Tribunal finds that the sponsor’s parents are attached to their family business and ancestral lands and the applicant therefore has no intention of seeking an ongoing presence in Australia.

24. The Tribunal accepts that the applicant’s husband and three adult children will remain in Pakistan while she visits Australia and that these family ties, as well as her social networks in Pakistan, will provide her with a strong incentive to return to Pakistan at the end of her visit. The Tribunal has considered the evidence from the sponsor stating that the applicant has lived in Pakistan all her life and has no desire to remain in Australia on a permanent basis. The Tribunal accepts this evidence. The Tribunal considers that her family ties in Pakistan will provide the applicant with a significant incentive to return to Pakistan in compliance with condition 8531.  

    Country Information

25. The Tribunal discussed with the sponsor the country information about the security for Hazaras in Quetta and in Balochistan province generally. The sponsor’s statutory declaration submits that the security situation [there] has improved a lot:

    According to South Asia Terrorism Portal[1] Balochistan has seen drastic improvement in security since 2014 and it has been consistently stable since 2019.

    Pakistan has completed 90% fencing with Afghanistan and aims to complete remaining this year [2]

    As per research studies, fencing has played significant role for Pakistan to reduce terrorist activities [3].

    [1]  (SATP - >

    According to the latest Country Information Report, issued by the Department of Foreign Affairs and Trade (DFAT),

    The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors.[4]

    [4]  DFAT Country Report, 20 February 2019 - Pakistan, [2.69]

26. According to partial data compiled by the South Asia Terrorism Portal (SATP), during the first 10 days of 2021, Pakistan has recorded 16 fatalities [11 civilians, two Security Force (SF) personnel and three militants] in four incidents of killing, of which 11 were killed in the Mach incident, alone … However, Balochistan recorded the highest fatalities in both the civilian and SF categories. Moreover, on year-on-year basis, the security situation is Balochistan has deteriorated significantly, with overall fatalities increasing from 180 in 2019 to 215 in 2020, an increase of 19.44 per cent.[5]

    [5]  South Asia Terrorism Portal:  Terrorism Assessment, Balochistan (satp.org)

27. The sponsor states that  the situation as concerns terrorism in Pakistan has improved.  Initially the sponsor came to Australia in 2012 to study; he returned to Pakistan in 2014 to marry.  As noted in his statutory declaration, his father had to close the store in 2010 due to the volatile security situation and the family relocated to  Karachi, where they lived for  eight years. When the security situation improved in 2018, the family moved back to Quetta and started construction of new premises for the shop.

28. The sponsor acknowledged that there are problems for Hazaras living in Quetta but said that his family have lived there and owned their business for 60 years. They had the experience and prudence to know when to leave Quetta and when to return there. He stressed that his family are settled and relatively affluent in Pakistan and his mother’s commitment to her husband and children in Pakistan meant that she would not remain  in Australia beyond her permitted stay.

29. On the evidence before it, the Tribunal is satisfied that the applicant does not fear harm on return to Pakistan for any reason, including her ethnicity and, as such, is satisfied that the applicant does not intend to change their status on arrival in Australia. 

30. The Tribunal has also had regard to the decision in Khanam v Minister for Immigration & Citizenship [2009] FCA 966 to the effect that the Tribunal must consider the particular circumstances of the applicant rather than make broad assumptions based on information regarding a person of the same nationality or social group. While the Tribunal acknowledges concerns that the security situation for Hazaras may act as a disincentive for the applicant to return to Pakistan, the Tribunal is satisfied that all parties are well aware of the potential adverse consequences that non-compliance with visa conditions would have on any future applications by other family members to visit Australia.

31. The Tribunal is satisfied, based on the material before it, that the applicant seeks only to visit Australia on a temporary basis to see her son and his family, including her three grandchildren, whom she has never met. Having considered all the evidence before it, the Tribunal is satisfied that the applicant intends to comply with condition 8531.

    Cl.600.211(c)

32. The Tribunal has also considered all other relevant matters (cl.600.211(c)). 

33. The Tribunal notes that the circumstances of the sponsor’s arrival in Australia and that of his wife were entirely consistent with migration laws, with no attempt to change their respective status once they were onshore.

34. The Tribunal has also had regard to the PAM3 Departmental guidelines which provide guidance on Visitor visa applications made by parents, typically retired, who wish to visit their Australian citizen or permanent resident children/grand-children in Australia. The PAM3 Guidelines record that:

    Officers should also take a flexible approach 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.

    Officers are encouraged to consider granting parents who have a history of compliant travel to Australia a Tourist stream visa with 3 year travel period, 12 month stay and multiple entry so that the parent can visit their family for longer periods on regular occasions …

35. The Guidelines also state:

    Officers should consider granting a Tourist stream visa with 18 month travel period and 12 month stay to parents who do not have a history of compliant travel to Australia (due to no previous travel history). This provides an opportunity to make regular visits and demonstrate compliance with visa conditions. As in all cases, the applicant would still need to meet the genuine temporary stay requirement and any other relevant requirements. The stay and/or travel period should be reduced if the s65 delegate has concerns about the applicant’s intentions and a shorter visa stay/travel period would address those concerns. If the s65 delegate is not satisfied the applicant intends a genuine temporary stay, the visa must be refused.

1. The sponsor has also stated that he would be prepared to provide a security bond. The Tribunal considers that the imposition of such a security would provide an additional incentive for compliance.

2. The Tribunal acknowledges that the visa application was made prior to the impact of the COVID-19 pandemic, and the documents provided to the Tribunal were likewise provided to the Tribunal prior to the global implications of the pandemic being known. The Tribunal acknowledges that the Visitor visa may not be able to be granted until travel restrictions are removed or at least, eased.  However based upon all the evidence before the Tribunal and with respect to the statutory criteria for the grant of a Visitor visa, the Tribunal finds that the applicant meets the requirements of cl.600.211.

3. The Tribunal is satisfied the applicant meets the requirements of cl.600.211 and genuinely intends to stay temporarily in Australia for the purpose of a family visit.

   DECISION

4. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl.600.211 of Schedule 2 to the Regulations.

   Stephen Conwell
   Member