Bajwa (Migration)

[2017] AATA 444

Bajwa (Migration) [2017] AATA 444 (13 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Aisha Sidiqua Bajwa

VISA APPLICANTS:  Mr Nisar Ahmed Bajwa
Mrs Anjum Zia

CASE NUMBER:  1701005

DIBP REFERENCE(S):  BCC2016/3859544

MEMBER:Di Hubble

DATE:13 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Visitor (Class FA) visas.

Statement made on 13 March 2017 at 2:46pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Admadis – Family ties in Australia and Europe – Applicants did not seek protection in Germany – No grandchildren in Germany – Extended family in Pakistan – Economic interests in Pakistan

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 14 December 2016 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 15 November 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the visa applicants applied for the visas 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 (the Regulations). They include cl.600.211, which requires a visa applicant to satisfy the Minister that he or she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visas because he was not satisfied that the visa applicants genuinely intend to visit Australia temporarily.

5. The review applicant, who is the visa applicants’ daughter, sought review of the delegate’s decisions on 19 January 2017.  Copies of the delegate’s decisions accompanied the review application.

6. The review applicant appeared before the Tribunal on 8 March 2017 to give evidence and present arguments.  The Tribunal also received evidence from the review applicant’s husband, Mr Ali Kalim.

7. In response to the Tribunal’s questions, the review applicant said that:

   ·She is married and has a 13 month old baby girl.  She has 2 siblings.  Her younger brother, who is single, has been in Luxembourg on a work visa, which is renewed every 2 years, for 4 years.  He loves Luxembourg and intends to remain there.  Her sister, who is married and has permanent residence in the UK, has a 5 year old son;

   ·Her mother has 3 siblings, and several nieces and nephews, who live in Pakistan.  Her mother lives in Karachi but all of her siblings live in the Punjab;

   ·Her father has 1 brother in Karachi, and several nieces and nephews.  He also has 2 sisters, 1 of whom lives in Denmark whilst the other sister lives in Canada;

   ·The purpose of the trip is for her parents to meet their granddaughter and visit various places in Australia.  She would like them to come for the maximum of 3 months but 1 month would suffice;

   ·Her parents have been to Luxembourg twice.  Before he retired in 2011, her father worked for the Police Department and he travelled to Africa and South America for training;

   ·Her father receives a monthly Police Department pension plus income from fully cultivated agricultural land in the Sindh and rent from tenants who live in the bottom half of her parents’ Karachi home;

   ·Her parents’ agricultural land in the Sindh is valued at $1.9 million AUD and they also have the equivalent of $1.9 million AUD in savings;

   ·Her husband earns $42,000 gross per year as a labourer at a paint manufacturing plant.  They have around $7,000 in savings because they have bought some land and a lot of their money is going on that.  However, she could ask her parents to each give $7,000 towards a security bond.

8. Mr Kalim told the Tribunal that:

   ·Both he and his wife are engineers who migrated to Australia on skilled visas in 2015.  He is working in a factory but they are both looking for engineering jobs.  They can’t afford to go back to Pakistan for a long break at the moment.  His parents-in-law are very keen to meet their 1 year old granddaughter so that is why they want to bring them here;

   ·Like his parents-in-law, he is an Ahmadi.  They want to visit Australia; however they will not be living here on a permanent basis.  It is true that Ahmadi have been persecuted in Pakistan but the situation is not dire or critical.  His father-in-law was formerly a police officer so he is quite resourceful and he doesn’t face any immediate threat because he is an Ahmadi.

9. The Tribunal then discussed the following country information with the review applicant:

   ·The Department of Foreign Affairs and Trade (DFAT) “Smart Traveller’ website on 3 March 2017 advised Australians to reconsider their need to travel to Karachi, and Pakistan more generally, due to the unpredictable security situation, including the high threat of terrorist attack, kidnapping and sectarian violence.  A number of attacks have occurred in Pakistan since 13 February 2017, causing a large number of deaths and injuries;

   ·Political, sectarian and gang violence continues in Karachi, with a high death toll.  Pakistani police and para-military rangers are conducting intermittent counter-terrorism operations in the city, resulting in a heightened level of public security across a wide part of the city. Reprisal attacks by militants or criminals may occur anywhere. There are also regular demonstrations, rallies and large public gatherings in Karachi which can turn violent. Violent crime, including armed robbery, carjacking and kidnapping, occurs in many parts of Pakistan, particularly in Karachi;

   ·Security forces have increased their presence across the country, including at airports.  Authorities prohibited gatherings of more than 5 people in public places in Karachi up until 7 March 2017. All political and religious activities in Karachi were cancelled under this order. Terrorist attacks can occur anywhere at any time in Pakistan. For example, in June 2014 a group of terrorists attacked Jinnah International Airport in Karachi resulting in 30 deaths;

   ·More specifically in relation to Ahmadis, Ordinance XX was promulgated by the Pakistan Government in April 1984 in order to restrict the practice of Islam and the usage of Islamic terms and titles as well as the religious freedom of the Ahmadiyya Muslim Community. This ordinance bars Ahmadi Muslims, who are deemed Non-Muslims under the Pakistan constitution, from publicly practising their faith and also disallows them from using any Islamic texts for praying purposes. It is in addition to – but separate from – the 1974 Second Amendment to the Constitution of Pakistan. While the Second Amendment declared that Ahmadis are non-Muslims, the Ordinance prohibits Ahmadis from identifying themselves as Muslims;

   ·Since the promulgation of the 1984 legislation, physical attacks against the Ahmadi community in Pakistan have increased. According to the Human Rights Commission of Pakistan, 11 Ahmadis were reported to have been killed in sectarian violence during 2014. In July 2014, an Ahmadi and her 2 grandchildren were killed after a mob set fire to houses belonging to Ahmadis in the Punjab;

   ·The January 2016 DFAT Pakistan Country Report notes, amongst other things, that Ahmadis face a degree of political discrimination; and the Ahmadi community has reported that Pakistani authorities have demolished and restricted access to a number of Ahmadi places of worship. Other places of worship have been set on fire by mobs or occupied by force. Ahmadi graves have also reportedly been desecrated and their dead disinterred from graveyards. There have been reports of harassment of the Ahmadi community, including closure of Ahmadi publications, removal of Ahmadi students from schools and universities and reporting of Ahmadi communities en masse to local police for unspecified crimes;

   ·The International Human Rights Committee recently reported that the general security situation for Ahmadi Muslims in Pakistan is dire. The Blasphemy legislation and Ahmadi-specific repressive laws are implemented on a daily basis at political, economic, social and educational levels affecting Ahmadis from all sectors of society and all ages. This repressive legislation and state endorsed compliance has had traumatic consequences for all Ahmadis as they continue to live in fear of daily persecution by the state, the judiciary, the police, religious vigilantes, media and the general public, thus effectively denying them their most basic fundamental entitlements of religious freedom and human rights;

   ·Statistical evidence from the Department of Immigration indicates that of 25 visitor visa refusals that the Tribunal remitted in 2014 and 2015 concerning applicants of the Ahmadi faith, only 4 people subsequently complied with their visa conditions, and none of those remitted in the 12 months to the end of November 2015 complied with their visa conditions to return to Pakistan at the end of their authorised period of stay.

10. The Tribunal suggested to the review applicant that this country information about the dangerous and unstable situation in Pakistan, and more so Karachi, and the continuing discrimination, harassment and persecution of people of the Ahmadi faith in Pakistan, when viewed in light of the visa applicants’ individual circumstances, and particularly as none of their children or grandchildren are in Pakistan, may cause the Tribunal to question whether the visa applicants would comply with condition 8531, which would require that they must not remain in Australia after the end of their permitted stay. 

11. The review applicant agreed that the situation in Pakistan is dire and her parents, who are both Ahmadis, are alone over there.  However, they have been to Germany and Luxembourg, where their son is working, and they returned to Pakistan before their visas expired.  They have no intention of applying for asylum and they are of an age where moving to another country would be hard.  Her father is settled there – every week he has to visit his land and he has rent coming in.  His relatives are there and he has a very active lifestyle.  Her father has collected his retirement fund in Pakistan and now he wants to explore the world; so he has visited her brother in Luxembourg twice.  In Australia her parents would be confined to a sedentary lifestyle, whereas in Pakistan they are very settled and they have a luxurious life; they have a double storey home and a car.  Her father has a huge social circle because he used to be a police officer and her parents have tea parties at home every day.  They just want to visit Australia; nothing more than that.  They have some relatives in Germany and, if they wanted to, they could have applied for refugee status there, as many people are doing. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted.

13. The visa applicants seek the visas for the purpose of a family visit and sight-seeing.  These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

14. 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)).

15. The visa applicants have never previously travelled to Australia and, on that basis, there is no evidence of substantial compliance or non-compliance with the conditions of the last substantive visa held, or any subsequent bridging visa.

16. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas 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.

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

18. The Tribunal acknowledges there are some factors that support the claim that the visa applicants genuinely intend to stay temporarily in Australia for the purpose of a family visit and sightseeing, including that:

    ·They have a large number of friends and extended family members living in Pakistan including, between them, several siblings who will remain there;

    ·They have economic ties to Pakistan in the form of significant bank savings, as well as agricultural holdings and property that they derive an income from.  The first-named visa applicant also receives a pension from the Pakistan Police Department;

    • They have twice visited their son, who has temporary residence in Luxembourg, and other parts of Europe.  Before his retirement from the Pakistan Police Department, the first-named visa applicant also travelled to Africa and South America for training;

    ·The review applicant has indicated a willingness to arrange a security bond of $7,000 for each visa applicant in order to guarantee their timely departure from Australia.

19. However, the Tribunal ultimately could not be satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas would be granted for the following reasons.

20. The Tribunal was not persuaded by the review applicant’s submission, that if the visa applicants wanted to leave Pakistan they could have applied for refugee status in Germany, for the reason that none of their children reside in Germany.  The Tribunal considers there would be far greater incentive for them to seek protection in Australia, where their daughter, son-in-law and 1 of only 2 grandchildren live.

21. The country information at paragraph 9 contains consistent and unambiguous information about the dangerous and unstable situation in Karachi (and Pakistan more generally), and the continuing discrimination, harassment and persecution of people of the Ahmadi faith in Pakistan.  When this information is viewed in light of the visa applicants’ individual circumstances, and particularly the fact that none of their children or grandchildren are in Pakistan, the Tribunal remains unconvinced that the visa applicants would comply with condition 8531, which would require that they must not remain in Australia after the end of their permitted stay. 

22. Although the Tribunal carefully weighed the visa applicants’ individual circumstances, the Tribunal considers that the factors outlined at paragraphs 9 to 10 cumulatively outweigh the factors that lend support to the notion that the visa applicants genuinely intend to stay temporarily in Australia for the purpose of a family visit and sightseeing.  Accordingly, the Tribunal could not be satisfied that the visa applicants would not overstay their visas, thereby breaching condition 8531 (which the visa applicants’ visas would be subject to, as outlined above).

23. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted, and finds that the requirements of cl.600.211 are not met.

    DECISION

24. The Tribunal affirms the decisions not to grant the visa applicants Visitor (Class FA) visas.

    Di Hubble
    Member