Kasir (Migration)

[2022] AATA 1863

Kasir (Migration) [2022] AATA 1863 (23 March 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Shabir Hussain Kasir

VISA APPLICANT:  Mrs Bibi Hawa

CASE NUMBER:  2004564

HOME AFFAIRS REFERENCE:                BCC2019/6753690

MEMBER:  Rosa Gagliardi

DATE:  23 March 2022

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 23 March 2022 at 1:55pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – circumstances of the applicant’s home area – not satisfied that visa applicant genuinely intends to stay temporarily in 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 25 February 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The visa applicant applied for the visa on 19 December 2019. 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.

1. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl. 600.211.

1. The review applicant appeared before the Tribunal on 16 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s mother overseas, the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

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

cl.600.211(a)

1. 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 applicant, a Pakistani national, has never travelled to Australia or a similar country, although she has travelled for religious purposes to Saudi Arabia and Iraq. On the basis of this limited travel, it is difficult for the Tribunal to make an assessment about whether the applicant will abide by her visa conditions given the opportunities for a more stable and generally tranquil life into older age in Australia, as opposed to the countries she has visited.

Furthermore, the applicant has two close family members and their families living in Australia and the incentive to remain here is therefore greater than it might have been in respect of the countries to which she has travelled.

1. The review applicant told the Tribunal at hearing that his wife’s relative had visited Australia and departed as required. The Tribunal places some weight in the applicant’s favour on evidence of a relative’s compliance, however, without having the details of such a relative’s circumstances (it is claimed the relative is also from Khyber Pakhtunkhwa area), it is difficult for the Tribunal to draw any meaningful inference about the applicant’s own compliance.

1. 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:

   ·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.

1. As put to the applicant and her son, the review applicant, at hearing the Tribunal is not concerned that the applicant is travelling to Australia to work or study. The applicant has been a homemaker and given her age, is unlikely to embark on a course of study or a career. The Tribunal is, therefore, satisfied that the applicant will abide by visa conditions 8101 and 8201.

1. From the information provided, however, it would appear that the applicant and her family living in Pakistan, Khyber Pakhtunkhwa, fall into a group that could be categorised as vulnerable because of their precarious financial circumstances in the context of a particularly unstable part of Pakistan. The applicant’s husband, it was advised at hearing, was now retired but did not receive any kind of pension, though he had spent a good deal of his working life abroad in Kuwait to work.

1. At hearing the review applicant stated that his mother and father lived in their property with the families of their two sons who both have four children. Asked to advise on the sources of income, the review applicant stated that he and his brother in Australia were financially supporting their parents. It has been claimed that the review applicant’s two brothers in Pakistan are both working and had a shop. Nonetheless, the Tribunal considers that both brothers in Pakistan are responsible for the upkeep of their families in a large household, so it is unlikely that they are able to support their parents into their old age. It was claimed by the applicant and the review applicant that the family lived comfortably in Pakistan and that all was well. The Tribunal has concerns, however, that having few reliable sources of income leaves them vulnerable and exposed, particularly in times of economic hardship in the area.

1. The review applicant stated that his parents had a house they rented out and that they derived some income from this second property. In addition, they had land and it was their intention to sell one of their properties to build on that land. The Tribunal has limited evidence before it regarding the value of any property or land, even though the Tribunal is prepared to accept that indeed the applicant and her husband do own 2 houses and land. The Tribunal has difficulty, however, accepting that as put to the parties at hearing, the

Khyber Pakhtunkhwa area is tranquil and does not present a threat to the applicant’s family’s personal safety and well-being.

1. The Tribunal is not satisfied that the positive narrative put forward by the applicant and the review applicant about the situation in the Khyber Pakhtunkhwa can be relied on when viewing the country research which discusses the challenges the area continues to face because it borders Afghanistan, and due to the historical tribal hostilities and extremists’ operations in the area.1 Since 15 August 2020, when the Afghan Taliban gained control in Afghanistan, research indicates the lethality of attacks on Security Forces in Pakistan’s tribal belt has spiked.2 From 15 August 2021 to 7 January 2022, 34 attacks were executed against Security Forces killing 56 personnel. During the corresponding period preceding, 33 Security Forces personnel had been killed in 32 attacks.3

1. Operation of the Tehrik-e Taliban Pakistan (Movement of Taliban), (TTP) the largest militant group in Pakistan is also of concern. The main goal behind TTP’s establishment was to unite the various factions of the Pakistan Taliban in order to organise synchronised attacks on NATO/ISAF forces in Afghanistan. The group also carries out ‘defensive jihad’ against Pakistani military forces conducting operations in Khyber Pakhtunkhwa.4

1. Further:

On September 22, 2021, the Awami National Party (ANP), which was in Government during the KP’s (Khyber Pakhtunkhwa’s) troubled years (2008-2013), warned that a new wave of terrorism was emerging, and that it would engulf the entire country if not controlled at the present stage. “The terrorists are regrouping in Khyber Pakhtunkhwa,” ANP provincial president Aimal Wali Khan declared. He asked the Government to contain the spread of extremism and terrorism, and added that a failure to take concrete steps would send the message that the Government or state institutions were party to the violence.

There is no doubt that TTP and the Afghan Taliban are ideological twins. Indeed, during an interview with (sic) on July 26, 2021, TTP chief Noor Wali Mahsud asserted that his group had a ‘good relationship’ with the Afghan Taliban and hoped to benefit from the latter’s victories across the border. He further warned that TTP would continue its “war against Pakistan’s security forces” and declared that the outfit’s goal was to “take control of the border regions and make them independent”. This is the first time that TTP’s leadership has called for an independent state in Pakistan’s tribal areas.

However, instead of taking strong actions against TTP, despite the fact that the group had stepped up attacks in the province, the Pakistan government is trying to negotiate with the outfit with the help of the Taliban. As a result, both sides agreed on a month-long ceasefire between November 9 and December 9.

1 accessed

on 22 March 2022.
2 Institute For Conflict Management (ICM), Khyber Pakhtunkhwa: Assessment – 2022, Terrorism Assessment, Khyber Pakhtunkhwa (satp.org), accessed on 22 March 2022.
3 ibid;
4 European Asylum Support Office (EASO), Pakistan Security Situation, Country of Origin Information Report, October 2020, Country of Origin Information Report October 2020 ... Country of origin information report | Pakistan: Security Situation 6 Disclaimer This report was written according to the EASO - [PDF Document] (cupdf.com), accessed on 22 March 2022.

On December 9, however, TTP declined to extend the ceasefire with the Government, alleging that the state forces had not only failed to implement the decisions reached between the two sides but, on the contrary, had conducted raids in Dera Ismail Khan, Lakki Marwat, Swat, Bajaur, Swabi and North Waziristan, killing and detaining many fighters. TTP consequently declared, “Under these circumstances, it is not possible to extend the ceasefire.” Mufti Noor Wali Mahsud announced an end to the ceasefire and asked his fighters to resume attacks.

…

Moreover, the threat from the Islamic State (IS) is increasing. While no IS-linked fatality was reported in 2020, two IS-linked attacks were reported in 2021…

…

Efforts to buy peace with TTP continue but terrorist violence in KP is surging again, as these overtures are seen as a sign of weakness by a resurgent TTP, operating with the implicit support of the Afghan Taliban. These developments may have a cascading effect on KP, as well as on the rest of Pakistan.5

1. The review applicant stated that he and his brother had come to Australia as asylum seekers during the earlier troubled years, and that the situation in the Khyber Pakhtunkhwa was now much improved. Indeed, in response to terrorist operations, the Pakistan armed forces conducted major security operations in the country to quell attacks.6 Nonetheless, the country information shows that the resurgence of the Taliban in Afghanistan has brought with it increased risks of instability in the Khyber Pakhtunkhwa area, with the TTP gaining strength.

1. The Tribunal is conscious that it ought not make comparisons between the applicant’s circumstances and those of her sons who had come to Australia earlier by boat. Nonetheless, even if the Tribunal accepts that the applicant herself is not a target of violence, the instability in the area would translate into various consequences for her household on a day-to-day basis in terms of food security, access to a good standard of health and a stable security situation. Leaving aside the effects of COVID-19, which has had an adverse effect on many aspects of life, the Khyber Pakhtunkhwa area, according to country research, has been experiencing acute food insecurity7. The populations in the newly merged areas, in particular, have been experiencing conflict and terrorism for nearly a decade, which has affected their food and livestock production, food consumption, damaged infrastructure and markets, and further exacerbated the already fragile food security and livelihood situation for households.

1. The Tribunal has no doubt that the review applicant and his brother in Australia provide their parents with as much financial assistance as possible, but is difficult to accept that they would not be motivated to ensure the safety and good health of their mother initially, and that having access to a country where a high standard of living is enjoyed, the applicant herself is not motivated to seek a more secure environment into her old age.

1. The Tribunal has taken into account that the applicant has a husband in Pakistan and that she has two sons who together have borne eight children, including two married daughters, who have their own families in Pakistan. The Tribunal considers that these family members

5 Institute For Conflict Management (ICM), Khyber Pakhtunkhwa: Assessment – 2022, Terrorism Assessment, Khyber Pakhtunkhwa (satp.org), accessed on 22 March 2022.

6 European Asylum Support Office (EASO), Pakistan Security Situation, Country of Origin Information Report, October 2020, Country of Origin Information Report October 2020 ... Country of origin information report | Pakistan: Security Situation 6 Disclaimer This report was written according to the EASO - [PDF Document] (cupdf.com), accessed on 22 March 2022.

7 Pakistan: Acute Food Insecurity in Khyber Pakhtunkhwa January to May 2020 and Projection for June to August 2020 | IPC Global Platform (ipcinfo.org), accessed on 23 March 2022.

do represent somewhat of an incentive for the applicant to return to Pakistan. Nonetheless, having carefully considered the country information and the uncertainty of how terrorism in the Khyber Pakhtunkhwa area, in particular, will evolve, the Tribunal considers that any familial attachments are outweighed by the circumstances of the applicant’s home area.

cl.600.211(c)

1. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has considered the medical reports stating that the wife of the review applicant was struggling with a newborn and would welcome some family support from Pakistan. The Tribunal accepts that the review applicant’s wife may have benefited from the presence of the applicant after the child’s birth, nonetheless, the Tribunal considers that it is required to consider the intention of the applicant, rather than the circumstances of the review applicant. The Tribunal also does not dismiss the applicant’s desire to see all her grandchildren in Australia and to develop a relationship with them personally. These are human aspirations common to all grandparents and the refusal of this application does not mean that the application will never be able to visit Australia. Having regard to the current circumstances in the applicant’s home area, however, the Tribunal is not satisfied that she genuinely intends to stay temporarily in Australia at this particular time.

1. The Tribunal notes that the review applicant has provided the Department with his savings which are substantial, and the Tribunal accepts he and his family are in a very comfortable financial position. The review applicant emphasised that he could pay a bond to secure the visit of his mother without difficulty. The Tribunal accepts this is the case. However, when taking into account the volatility in the applicant’s home area, the Tribunal is not convinced that any amount of security would motivate the applicant to return to the fraught Khyber Pakhtunkhwa area.

1. 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

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

Rosa Gagliardi Member