Amini (Migration)

[2024] AATA 719

Amini (Migration) [2024] AATA 719 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Arif Amini

VISA APPLICANT:  Mr Mohammed Ali Amini

REPRESENTATIVE:  Mr Munashe Rusamo

CASE NUMBER:  2320297

HOME AFFAIRS REFERENCE(S):          BCC2023/6571875

MEMBER:Stephen Witts

DATE:22 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2024 at 8:04am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – attend his son’s funeral and burial – significant deterioration of the economic, social, and security situation in Afghanistan – visa applicants’ family circumstances in Australia – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia –  family links to Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 17 November 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 14 November 2023. 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 the delegate was not satisfied that the applicant genuinely intended a temporary visit to Australia.

5. The review applicant (the sponsor) appeared before the Tribunal on 21 February 2024 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant (the applicant), Mr Mohammed Amini and his wife Mrs Nasiri, and from witnesses Ms Soraya Rasooli, a sister of the review applicant, and Ms Shokreyeh Rizay, the review applicant’s wife.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

8. The Tribunal notes that this matter was heard in conjunction with case number 2320299 as both this case and that matter consist of the same review applicant, Mr Arif Amini, who is the son of the visa applicant in this matter, Mr Mohammad Amini, and that his mother, Mrs Nasiri, is the visa applicant in case number 2302299.

9. The review applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

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

13. 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)).

14. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

15. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

16. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision dated 17 November 2023 by the applicants.

17. In this decision it was contended by the delegate that applicants must demonstrate strong financial, employment and personal ties to demonstrate their incentive to depart Australia at the end of their temporary stay. The delegate contended that the applicant will be travelling with his spouse to Australia and their children will remain overseas and that they will be supported financially by their sponsor onshore.

18. The delegate also contended that it considered that the applicant is currently residing in Pakistan and that he has no legal status and that the Department was not satisfied the applicant will return to Pakistan after the visit to Australia.

19. It was also asserted by the delegate that the applicant is requesting to attend his son’s funeral and burial, but the delegate stated that it was concerned that once here in Australia the applicant will not depart.

20. The Tribunal notes that the applicant has provided a submission dated 14 December 2023 requesting a priority processing from the Tribunal which was granted.

21. In this submission it was stated that the applicant and his spouse are the review applicant’s parents and the review applicant lodged applications for visitor visas so that his parents could travel to Australia to attend the funeral of his brother and their son, Haqil Ali.

22. It was stated that the burial and funeral is scheduled to take place in Western Australia in April 2024 and a copy of a letter was provided from the organisers of the funeral indicating he is to be buried in April 2024. On that basis priority processing of this application was received and the request was granted.

23. The Tribunal also notes that a submission was provided from the applicant’s representative dated 17 February 2024. In this submission it was stated that the applicants are the parents of the review applicant and that they were refused visitor visas to travel to Australia to attend their son Haqil Ali’s funeral.

24. It was stated that he took his own life in October 2023 in Indonesia and the applicants would be genuine temporary entrants for the purposes of their visitor visa applications.

25. It was stated that the applicant’s mother is a 53-year-old citizen of Afghanistan and the applicant’s father is a 65-year-old citizen of Afghanistan. It was stated that they have seven children which includes the sponsor who was an Australian citizen and six other children, all of which are Afghan citizens resident in Afghanistan except one, Mr Mohammad Amini, an Afghan citizen resident in Turkiye on a student visa. It was stated that they have lost 3 children over their lives, Mr Hassan Amini and Mr Mohammad Javid Amini, who were killed by the Taliban in 2008 and their son, Haqil, who suicided in Indonesia in 2023.

26. It was stated the deaths of the two children referred to above had a great impact on their son Haqil who fled Afghanistan in 2008 to Turkiye, and that he lived there for six years. In 2014 he returned to Afghanistan and soon after he fled Afghanistan again, and that in August 2014 he travelled to Indonesia.

27. It was stated that he was alone with no family support and that he was considering seeking refuge in Australia.

28. It was stated that on 24 January 2022 the applicants applied for refugee and humanitarian visas as secondary applicants on Mr Gul Chehra Amini’s application, another of their children. It was stated that they lodged these applications shortly after the Taliban takeover of Afghanistan in August 2021.

29. It was further stated that their son took his own life and that following his death the applicants worked with Australian consular services in Indonesia so that he could have a proper funeral according to the customs and religious procedures of Shia Islam.

30. It was stated that in November 2023 his body was repatriated to Australia and that the review applicant and his wife travelled to Indonesia to repatriate his body and that on 2 November 2023 the applicants lodged visitor visa applications. It was stated that on 9 November 2023 these applications were refused. It was further stated that on 14 November 2023 the applicants re-lodged further visitor visa applications, but they were also refused.

31. It was stated that the review applicant on 25 November 2023 lodged a sponsorship application for a sponsored parent subclass 870 visa.

32. It was further stated that on 1 February 2024 the applicants withdrew their humanitarian visa applications because, it was stated, the applicants no longer wish to pursue such a visa.

33. It was further stated that the applicants have commitments to their daughters, Ms Soraya Rasooli and Ms Sabira Amini, in Afghanistan and they would like to reside there to take care of their daughters and grandchildren, and they just want to come to Australia to attend a funeral.

34. It was further stated that on 7 February 2024 the review applicant’s sponsorship application was approved and that the applicants now intend to lodge applications for temporary parent visas to maximise the chances of being granted temporary visas.

35. It was stated that on 26 April 2024 their son is scheduled to be buried in Western Australia and that a commemoration ceremony is planned for 28 April 2024 and that therefore the applicants need a visitor visa as a matter of urgency.

36. The applicant’s representative further submitted that there were compelling and compassionate reasons for the applicants to travel to Australia and that this has been extremely distressing for the family and that it is important for them as the followers of Shia Islam that an appropriate ceremony is undertaken. It was stated that they do have genuine intentions to be temporary visitors.

37. It was stated that they have property in Afghanistan that they need to return there, and they have two daughters referred to above and that one of their daughters, Sabira, has 10 children who rely on the applicants, and the other daughter, Soraya, has 4 children, who rely on them as her husband is not ordinarily resident in Afghanistan.

38. It was stated that the applicants have to return to Afghanistan for the safety and freedom of their daughters particularly for Soraya whose husband is working in Saudi Arabia and that life is very difficult for women in Afghanistan, and that women are at high risk of significant harm in Afghanistan. The Tribunal notes that the applicant’s representative referred to recent DFAT country reports indicating the high risk of harassment and violence for women in Afghanistan.

39. It was further stated that because of this it was important for the applicants to return to Afghanistan to look after the family and in particular their daughters.

40. It was further stated that they have done everything they can to demonstrate that they intend to reside in Australia temporarily and that they withdrew their humanitarian visa applications to demonstrate that they are now genuine temporary entrants.

41. It was further stated that they will have support in Australia and that they do have some financial capacity and that they are currently residing in Quetta in Pakistan on tourist visas and that they can afford the flights to Australia and back.

42. It was further stated that the review applicant requests that the Tribunal depart from departmental policy when considering whether his parents are genuine temporary entrants as it would be unjust for such visitor visa applicants from Afghanistan to not be allowed to come to Australia and that this discriminates against citizens of Afghanistan. It was stated that it is the case that the economic situation in Afghanistan is bad but that Afghan citizens cannot change this and strictly applying departmental policy would mean that Afghan citizens would never be eligible to be granted visitor visas to Australia, and that the criteria for a visitor visa is that an applicant must be a genuine temporary entrant not that the applicant must not be from Afghanistan.

43. In summary it was stated that the applicants are travelling to Australia to attend their son’s funeral, that they have genuine intentions of returning to Afghanistan, that they need to return for the safety of their daughters and their granddaughters, that they have responsibilities as grandparents in Afghanistan, that they have adequate support to travel to Australia, and that a decision not to grant them visas would have a deleterious impact on an Australian citizen family unit.

44. The Tribunal notes that it was also provided with details regarding a death certificate for their son, a repatriation request letter, letters of support from the Towhid Association, a statutory declaration indicating that she will support a visit from the applicant’s from Ms Saleemeh Riyaz, a letter of support from a member of Parliament indicating that that senator would support the application, Pakistan visa grant notices for the applicants with a visa end date of 21 July 2024, 870 sponsorship approvals approved on 7 February 2024, some evidence of funds from the Commonwealth Bank dated 15 February 2024 in the name of the review applicant with a credit of approximately AU$90,000, evidence regarding the withdrawal of the humanitarian visa application, evidence regarding their daughter’s husband’s overseas residence, details regarding funeral arrangements and statements from family, friends, and others. Also included was a document dated 16 February 2024 regarding potential flights from Pakistan to Australia.

45. The Tribunal further notes that the review applicant provided a submission dated 12 February 2024 stating that he is a 37-year-old Australian citizen originally from Afghanistan and that in 2008 the family lived in Afghanistan and their lives were always at risk due to the actions of paramilitary groups that killed two of his brothers. He stated that his brother Haqil fled Afghanistan and lived in Turkiye for six years before returning to Afghanistan and that he then left and went to Indonesia in 2014. He stated he waited for resettlement for nine years and then took his own life in October 2023. He stated that he wanted to make sure that his brother had a proper funeral with his family around him and that he worked with the Australian Embassy in Indonesia to have his body repatriated to Australia and that he and his wife, travelled to Indonesia to facilitate this.

46. He stated that he applied for visitor visas for his parents to travel to Australia but that the applications were refused and that he also lodged temporary parent subclass 870 visa applications as a sponsor in the hope that they will be granted in time for his parents to attend the funeral, and that they withdrew his parents offshore humanitarian visa applications to demonstrate that they only wanted to travel to Australia on a temporary basis. He stated that it is important for his parents’ well-being that they can attend and that it is important for his brother to rest in peace.

47. Also included was a statement from Ms Soraya Rasooli, dated 13 February 2024, a daughter of the applicants, stating that she has four children and that her husband works in Saudi Arabia and that she relies on her parents to help her in raising her children. She stated that her parents intend to return to Afghanistan to support her after they travelled to Australia. She stated that her parents had not seen Haqil since 2014 and that they were worried what might have happened to him and wish to attend the funeral in Australia.

48. Also included was a statement from Ms Sabira Amini dated 16 February 2024, daughter of the applicants stating that she has 10 children and that her husband works in a bakery, and that it is hard to raise such numbers of children and that she relies on her parents to help her, and that her parents do intend to return to Afghanistan to support her.

49. At the hearing the Tribunal had a discussion with the applicants and witnesses regarding the application.

50. Mr Amini, the review applicant’s father, stated that he and his wife have lived in Pakistan for a year or so and that it is not safe to return to Afghanistan and that in particular, it is not safe for young people. When asked by the Tribunal what their intentions were when their tourist visas to Pakistan ceased in July this year, he stated that they can be updated or renewed for a month or so but that it might be problematic to return at that time and they may have to “go underground” or stay-at-home. When asked what they are doing to assist their daughters in Afghanistan at this time he stated that he needed to be with his daughters in Afghanistan and that he will return to Afghanistan at some point. He further stated that it is important for him to attend the ceremony in Australia to relieve himself emotionally and for his wife as well, and that after attending the rituals for his son he will return to Afghanistan. He stated that the Taliban is creating problems for his daughter and that he requests that his visa be granted.

51. Mrs Nasiri, the review applicant’s mother stated that they should be able to come to Australia so that they can see their son and attend the ceremony.

52. The review applicant, Mr Arif Amini, stated that he requests that his parents be granted a visa so they can attend the ceremony and that in their religion a body would normally need to be buried within 24 hours and that they need to carry out their ceremony. He stated that his parents have not seen their deceased son for 10 years and that it is important for the family to commemorate that. He stated that he works all day in Australia and that he wouldn’t have significant time available to see his parents while here and that he would not want his parents to live here, and he would want them to go back to Afghanistan. He stated that one of his sisters was running a girl’s school that the Taliban closed and that her life was in danger from that group. He stated that his father owns several houses and properties and a five-story building and that they also grow crops, and that he has had problems with a tenant not making payments on time to his daughter and that he needs to go back to manage these issues.

53. Mrs Rizay, the review applicant’s wife, stated that her husband’s brother is in the morgue and that the Tribunal needs to take a compassionate approach and that her in-laws need to travel back to Afghanistan and manage their property portfolio, and that women in Afghanistan cannot survive adequately without a male guardian and that she guarantees that they will return home.

54. The Tribunal has considered this evidence very carefully noting that the applicants have stated that they intend a genuine temporary visit.

55. However, the Tribunal after careful consideration finds that this is outweighed by other considerations including the recent significant deterioration of the economic, social, and security situation in Afghanistan, and by the difficult circumstances that the applicants find themselves in currently resident in Pakistan on a limited duration visa.

56. The Tribunal has considered the recent country information reports from the Department of Foreign Affairs and Trade, and notes that the security, political, and economic situation in Afghanistan is particularly bad. The Tribunal notes the recent humanitarian crisis and how it has evolved for the worse over the last few years.

57. The Tribunal had a discussion with the applicants about this. The applicants did acknowledge the issues that were now occurring in the visa applicants’ home country. The Tribunal has considered this matter very carefully and finds that the situation back in the visa applicants’ home country is very deleterious and that this does lend weight to the contention that the visa applicants do not genuinely intend to visit Australia temporarily for the purpose for which the visa is granted.

1. The Tribunal has also considered statements by the applicants that they need to return to Afghanistan to be with their daughters and grandchildren to provide assistance to them. However, the Tribunal has also considered that, in fact, the applicants do not reside in Afghanistan currently and have been living in Pakistan, they stated, for a year or so. The Tribunal finds that this is a relevant consideration when assessing whether the applicants do have a genuine intention to wish to return to Afghanistan to be with their family. The Tribunal has considered that it is more likely that the applicants intend to attempt to stay in Australia for an indefinite period if successful in coming to Australia and that they may attempt to bring their daughters and their families over to Australia to join them should that be possible.

2. The Tribunal has also considered the submission by the applicants that they have withdrawn another visa application, a humanitarian visa, as a demonstration that they intended a genuine temporary visit to Australia. The Tribunal finds that it is more likely that this was a tactical consideration to place themselves in a position where it could appear that they intend a genuine temporary visit.

3. The Tribunal has also considered that it has been stated that the applicants have property back in their home country of Afghanistan but find that this would not necessarily act as an incentive for the applicants to return to their home country as such property can be sold, leased, managed by family in Afghanistan, or managed from here in Australia, noting also that the applicants are not in Afghanistan presently in any case and have not been there for at least a year or so.

4. Taking all these factors into consideration the Tribunal finds that should the visa applicants be successful in coming here as visitors taking into contention the circumstances both in the visa applicants’ home country as above and also the visa applicants’ family circumstances in Australia, that the visa applicants may seek to stay here in some form on a long-term basis and that they do not genuinely intend to stay in Australia temporarily.

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

6. 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

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

   Stephen Witts
   Member