Fayyaz (Migration)

[2017] AATA 283

Fayyaz (Migration) [2017] AATA 283 (22 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Saadat Fayyaz

VISA APPLICANT:  Mrs Mubashra Mubarika

CASE NUMBER:  1615175

DIBP REFERENCE(S):  BCC2016/2429660

MEMBER:Mary Cameron

DATE:22 February 2017

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 2017 at 11:57am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Genuine temporary entrant – Pakistan – Ahmadi – Security situation – No previous travel – High incidence of overstaying

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.612, cl 600.231

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 Immigration on 12 August 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2.    The visa applicant applied for the visa on 20 July 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 only intended a genuine temporary stay in Australia.

5.    The review applicant appeared before the Tribunal on 1 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Aisha Saddiqa who is the review applicant’s wife and from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting family and assisting her sister in law with the care of her young children. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9.    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)).

1. The visa applicant has never been to Australia and therefore there is no evidence of any failure to comply with the conditions of any previous visa.

2. 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.

3. There is no information before it to suggest that the visa applicant intends to work or study in Australia.

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

5. In support of the visa application the visa applicant provided a letter stating that she wishes to visit Australia for a short time to see her brother and his family. Her brother (the review applicant) is settled in Australia and is an Australian citizen. He has twin daughters who are eight and his wife is expecting another child in August 2016. As her brother is working full time it is hard for him to look after his wife Aisha and his children. The visa applicant therefore wants to visit for three months to take care of her sister-in-law during the last days of her pregnancy and a few weeks after the birth of the baby. As an eldest sister of her brother she has a very strong bond with him and his family. It is a long time since she has seen them, and it is much harder for all of them to visit Pakistan due to their commitments in Australia.

6. The applicant’s letter states that she has her husband and four children staying in Pakistan where her husband has a steady job as a welder and where they own property. Furthermore most of her husband’s family also live in Rabwah, Pakistan. Her brother will cover her expenses during her visit to Australia.

7. The review applicant’s evidence is that the visa applicant is his older sister. She lives in Naseerabad, Ghalib Rabwah, District Jhang in Pakistan with her husband and four children who are aged from five to twelve. Their parents are deceased and they have a sister who resides in Pakistan and a brother in Canada. The visa applicant has not travelled outside Pakistan. Other than the parties’ brother who lives in Canada no members of the review applicant’s immediate family have travelled outside Pakistan.

8. The review applicant told the Tribunal that he has not seen the visa applicant for more than two years when he last visited Pakistan. He told the Tribunal that the proposed visit was meant to take place while his wife was pregnant, but she has now had their third child. They still want the visa applicant to visit because their doctor’s advice is that it would help his wife’s recovery from childbirth. She has suffered some complications from the pregnancy and birth which mean that there is a lot she cannot do, especially heavy lifting. A letter from Aisha Saddiqa’a doctor dated January 2017 confirms that Ms Saddiqa would “do better with assistance so (she) can rest and recover” (Tribunal file f.23).

9. The review applicant’s wife Aisha Saddiqa gave evidence about her health problems since having her baby, telling the Tribunal that she has had several hospital admissions and that her husband has had to take time off work on occasion. She described her medical conditions, and told the Tribunal that she needs someone at home to help her recover. The situation has been exacerbated by the work pressures on the review applicant, and it has been a very stressful period for the family. The witness was distressed when providing her evidence.

10. The review applicant told the Tribunal that they plan for the visa applicant to stay in Australia for two or three months. He stated that she is working as a teacher in Pakistan so she can’t leave her job for too long. Her husband is a welder and also works as a driver. She will just come to help his wife, who needs physical and mental rest, and she will stay with them in their family home in Hampton Park. The review applicant told the Tribunal that as the older sister the visa applicant is like the mother of the family. She is very capable and is already supporting them by providing advice over the phone. 

11. The Tribunal questioned the review applicant about the arrangements the visa applicant would make for the care of her own children in Pakistan should she visit Australia, and the review applicant explained that they would be cared for by their extended family who live around them in a multi property compound. He stated that the visa applicant and her husband own three plots of land, and their home. Evidence of the visa applicant’s property ownership in Pakistan is contained on the Department’s file.

12. The Tribunal observed that the visa applicant and her family are Ahmadi, and discussed with the review applicant independent country information which is summarised below and which documents continuing discrimination, harassment and persecution of Ahmadi people in Pakistan. The Tribunal put to him that the independent country information indicates that there continue to be security threats in Pakistan as a result of terrorist, militant and sectarian groups particularly for Ahmadis, that the situation is very serious and that Ahmadis experience a high level of official discrimination, moderate societal discrimination and low levels of violence.

13. The review applicant agreed that the situation in Pakistan is dangerous in general terms, but stated that it is not necessarily so, and that it is different for a person living in Pakistan who is used to the situation there. He pointed out that he and his wife have been to Pakistan with their children and felt safe there despite being Ahmadi, though he may not have felt safe in other areas like Quetta and Karachi. Additionally his wife stayed at his parents’ house in Pakistan for nine months after their marriage to care for his parents and she did not feel unsafe. The area where they live is ninety percent Ahmadi and a bit isolated from the rest of Pakistan.

14. The Tribunal heard evidence from the visa applicant by telephone. Her evidence regarding her family, her personal circumstances in Pakistan and the reasons for her proposed visit to Australia was consistent in its detail with the evidence of the review applicant. The Tribunal asked the visa applicant whether she could comment on the difficulties experienced by the Ahmadi population in Pakistan. She told the Tribunal that as a community, yes, the Ahmadi have problems, but that in her particular area they are safe and do not have any problems because of their religious beliefs.

15. The Tribunal has considerable sympathy for the family circumstances of the review applicant and his wife. It accepts based on the medical evidence before it and the parties’ oral evidence that the review applicant’s wife Ms Saddiqa suffers from significant health problems consequent to her recent pregnancy and childbirth, and that this had created significant stress and practical difficulty for the review applicant’s family in Australia.  The Tribunal accepts that the family would significantly benefit from the presence of the visa applicant in Australia and accepts that the visa applicant’s desire to assist her brother and sister in law is a reason why she wishes to visit Australia. However the Tribunal also considers that there are factors in the visa applicant’s circumstances which are indicative that the visa applicant may seek to remain in Australia rather than return to Pakistan.

16. In considering all other relevant matters as required by clause 600.211(c) the Tribunal has taken into account the fact that the review applicant himself migrated to Australia as the holder of a Partner visa and that he has travelled back to Pakistan with his wife and children. He presented to the Tribunal as a credible witness and the Tribunal accepts his evidence that he and his family members have not been fearful of travelling to Pakistan, although they are, like the visa applicant, of the Ahmadi religion. The Tribunal considers the review applicant’s migration history to weigh in favour of the application. However the visa applicant herself has never previously departed Pakistan and the review applicant told the Tribunal that no other member of his immediate family has temporarily departed Pakistan and returned there such as to suggest a record of previous visa compliance by any members of his family.

17. The Tribunal also affords some weight to information about the continuing discrimination, harassment and persecution of people of the Ahmadi faith in Pakistan in assessing the visa applicant’s circumstances to determine whether she intends only to visit Australia temporarily. The Tribunal has taken into consideration the review applicant’s evidence that he has not himself been concerned about his safety when he has returned to visit Pakistan, although he is Ahmadi. However the visa applicant’s circumstances significantly differ from those of the review applicant for reason that the review applicant is a citizen of Australia, who has been resident in Australia for many years.

18. The Tribunal notes that the Department of Foreign Affairs and Trade Country Report regarding Pakistan dated 15 January 2016 highlights the discrimination suffered by Ahmadis in Pakistan. The report notes, amongst other things, that: a number of discriminatory laws inhibit Ahmadis right to practise their religion openly; also Ahmadis continue to face a degree of political discrimination; the Ahmadi community has reported to DFAT that Pakistani authorities have demolished and restricted access to a number of Ahmadi places of worship. In addition, 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. Since the promulgation of the 1984 legislation, physical attacks against the Ahmadi community in Pakistan have increased. According to the HRCP, eleven Ahmadis were reported to have been killed in sectarian violence during 2014. In July 2014, an Ahmadi and her two grandchildren were killed after a mob set fire to houses belonging to Ahmadis in Punjab. DFAT assesses that Pakistan's Ahmadi community is subject to a high level of official discrimination, as well as a moderate level of societal discrimination, and Ahmadis are subject to low level violence in Pakistan.

19. The Tribunal has also had regard to the Department of Foreign Affairs and Trade ‘Smart Traveller’ website which provided advice on 17 September 2016 which states; we strongly advise you to reconsider your need to travel to Pakistan due to the unpredictable security situation, including the high threat of terrorist attack, kidnapping and sectarian violence; militants may mount attacks in the lead up to and on occasions of national commemorative significance such as Pakistan National Day etc; terrorist attacks can occur anywhere at any time in Pakistan; there is a high threat of terrorist attack against places that are frequented by foreigners; on 16 September 2016 over 25 people were killed and more than 30 were injured when a bomb detonated in a mosque in Payee Khan; the Pakistan Army is currently undertaking a counter insurgency operation in the Federally Administrated Tribal Areas of northern Pakistan resulting in military action and a large number of internally displaced persons; security forces across Pakistan have been placed on high alert in response to retaliatory attacks by militants; there may be an increase in the presence of security forces and restrictions on movement at short notice; Pakistan civil aviation facilities have been targeted by terrorist groups; in June 2014 a group of terrorists attacked the cargo handling section of Jinnah International Airport in Karachi resulting in 30 deaths and gunman fired at a passenger airliner as it was landing at Peshawar Airport, killing one passenger and injuring two crew members; further attacks on aviation facilities are likely; possible targets of terrorist activity include demonstrations, political events, rallies and processions and large-scale public gatherings as they may turn violent; there is a high threat of kidnapping across the whole of Pakistan but particularly in Karachi, Balochistan, Khyber-Pakhtunkhwa and the Federally Administered Tribal areas; political and sectarian violence continues in Karachi; there has been a high death toll from violence in the city; there is an unpredictable security situation and a high threat of terrorist activity and violence.

20. Further the Department of Foreign Affairs reports indicate that persons from Pakistan are more likely than people from other countries to overstay their visa and remain in Australia. It was observed in the delegate’s decision, a copy of which the applicant provided to the Tribunal, that Departmental records indicate that the incidence of Ahmadi’s from similar circumstances as those of the visa applicant who attempt to change their status in Australia is high.

21. The Tribunal has considered the parties’ evidence that the visa applicant lives in a different area of Pakistan which has a significantly higher Ahmadi population, and she does not face the same risks as do Ahmadi people in other parts of the country. However the Tribunal has considered the country information set out above which refers to systemic discrimination against and mistreatment of the Ahmadi religious minority throughout Pakistan. This includes Pakistan’s discriminatory laws in relation to religious practices, and political discrimination against Ahmadi people. Further, as regards the security situation in Pakistan the DFAT Smart Taveller website describes an unpredictable security situation throughout Pakistan and specifies that attacks against religious sites could occur in any part of Pakistan. In the context of the evidence considered as a whole, the visa applicant’s residence in a particular area of Pakistan does not overcome the Tribunal’s concerns regarding the problems of the Ahmadi community in Pakistan and the security situation in that country.

22. The Tribunal has also considered the parties’ evidence that the visa applicant lives with her husband and four children, and her family is well settled and materially comfortable in Pakistan, and that the visa applicant has employment as a teacher. The Tribunal accepts this evidence. However the visa applicant’s personal circumstances in this regard do not overcome the Tribunal’s concerns regarding the mistreatment of Ahmadi people in Pakistan and the security situation in that country.

23. For these reasons the Tribunal considers the factors indicative that the visa applicant may seek to remain in Australia outweigh the factors indicative that she would return to Pakistan. Therefore the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa is granted.

24. 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.

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

Mary Cameron
Member