KHAN (Migration)

[2017] AATA 263

KHAN (Migration) [2017] AATA 263 (10 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr NOMAN KHAN

VISA APPLICANT:  Miss KHANSA ARFEEN

CASE NUMBER:  1606987

DIBP REFERENCE:  BCC2016/1267402

MEMBER:Rosa Gagliardi

DATE:10 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 10 February 2017 at 1:27pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Seeking to assist mother visit – Family record of visa compliance – Student brothers remained in Australia lawfully – Travel prior to marriage – Challenges facing women in Pakistan – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.211, cl 600.231, cl 600.612

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 13 May 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 23 March 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 there was insufficient evidence to persuade the decision maker that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant, the visa applicant’s brother, Mr Nhoman Khan, appeared before the Tribunal on 15 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s uncle in Australia, Mr Abid Khan, and from the visa applicant, Miss Khansa Arfeen, by phone overseas.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

   Background

10. The applicant is a single female who is 21 years of age and who lives with her mother in Karachi, Pakistan.  Her father is deceased.  The applicant has two brothers living in Australia.  She also has another brother in Pakistan and extensive extended family there.  Evidence of home ownership by the applicant’s mother has been sighted and it is claimed that the applicant’s mother also owns another property bequeathed to her by her late husband.  The applicant’s father had worked in a transport company prior to his death.  The applicant herself has no savings as she is reliant on her mother, but it is claimed that there is no need for the applicant to have her own earnings because she will be well looked after by her brothers and uncle in Australia and furthermore, the applicant’s mother provides for her.

11. It is also claimed that the applicant is engaged to be married and that her fiancé represents an incentive for her to return to Pakistan.  Asked how her fiancé felt about the applicant travelling to Australia, she stated that he was ok with it. She stated that she would be with family so he had no concerns.  In any event, she claims that she has travelled on her own to other cities in Pakistan to stay with other family members on holidays.  It was also argued at hearing when asked why the applicant had not entertained coming to Australia with her husband after she marries, that her family wanted her to visit on her own before marriage because afterwards she would belong to the family of her husband and it was not clear what her husband would want to do.

    cl.600.211(a)

12. 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)).

13. The applicant’s mother has been granted a Visitor visa for 12 months enabling multiple visits to Australia.  In addition, the applicant’s grandparents have also visited Australia and abided by their conditions to return to Pakistan.  The Tribunal places weight on the family’s compliance with Australia’s immigration laws generally. 

14. It is also not entirely relevant for the applicant to argue that given her family’s previous compliance, the Tribunal should have no reservations about her intentions.  However, the applicant’s circumstances place her outside her older family members’ situation where it was considered that they had strong personal and other commitments to ensure they returned to Pakistan.  The applicant’s young age and own personal circumstances are particular to her and not the family members who travelled to Australia previously.

15. While the applicant has not travelled outside Pakistan, this is not, of itself, of moment to the review given that the applicant has only finished school and it would not be expected that she would have travelled extensively in any event.

    cl.600.211(b)

16. 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.

17. As stated at hearing by the Tribunal, the applicant is in transition in terms of having completed her studies and not commenced other study or work to date.  She also claims to be engaged to be married some time, possibly at the end of 2017.  However, in terms of concrete plans for her future in Pakistan, these appear to the Tribunal to be somewhat vague.  Further, as highlighted at hearing the applicant’s English is also of an excellent standard and she would be work and study ready on arrival in Australia.  These factors raise concerns in the Tribunal’s mind as to whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

18. These concerns are to some extent reinforced because the applicant had attempted, at her brother’s, the sponsor’s behest, to study in Australia but her subclass 573 student visa application was refused by the department on 25 May 2015.  At hearing the applicant stated that she had become engaged to her fiancé in 2014.  This would indicate, therefore, that even though the applicant was engaged, she had contemplated travelling to Australia after the engagement up to the point the department made its decision on 25 May 2015.  This leaves the Tribunal to query the extent, therefore, to which the applicant’s fiancé represents an incentive to return to Pakistan, as she had previously been prepared to reside in Australia for a substantial period as a student despite her betrothal. 

19. When the Tribunal asked the applicant at hearing why she had not as yet married her fiancé she stated that he had to complete his studies.  Even if the Tribunal accepts that the applicant is engaged to be married, given the applicant’s past preparedness to come to Australia and study for a lengthy period away from her fiancé, this  leaves the Tribunal unable to be satisfied that the applicant may not be seeking to maintain a lengthier or ongoing presence in Australia.

20. The Tribunal does not place adverse weight on the fact that the applicant’s two brothers in Australia came on student visas and remained here.  The Tribunal accepts that both brothers gained Australian residency lawfully as they were entitled to apply for permanent visas.  Nonetheless it does indicate that some family members, at least, have shown a disinclination to return to their home country on completion of their studies.

21. As put to the sponsor and the applicant, the country information as far as Pakistan is concerned is also problematic and adds concerns about the Tribunal’s reservations about whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  At hearing the applicant stated that her family had never been impacted by terrorism and the general insecurity in the country.  Indeed the sponsor and the applicant both attempted to downplay the Tribunal’s concerns, stating that in fact the area where the applicant lives is in a “posh” part of the city. 

22. The Tribunal observed that country information showed that the areas most affected by terrorism were Balochistan and the Khyber Pakhtunkhwa Province, including the Federally Administered Tribal Areas (FATA) where the military commenced counter-insurgency and counterterrorism operations in June 2014; operations that later expanded to include areas throughout the country, including Karachi. [1] 

    [1] Pakistan 2015 Human Rights Report, updated on 14 April 2016, accessed on 9 February 2017.

23. These operations (Operation Zarb-e-Azb) which have been deemed a success have, however, come at a significant price including the suppression of ordinary human rights with little, if any, redress.  The Human  Rights Commission of Pakistan (HRCP) in its annual report released in March 2016 observed:

    The year 2015 could be flagged as one in which Pakistani state took some definitive steps to recover its lost writ in places as diverse as rugged mountainous Federally Administered Tribunal Areas (FATA) and thickly populated and crime-infested Karachi…The military crackdown on some of the militant groups sheltering in the country’s northwestern tribal areas brought terrorist attacks down by almost half…Plainly the war was not over yet.  Ending extremism required that there should be no pick and choose…[2]

    [2] Pakistan Assessment 2016, accessed on 9 February 2017.

24. The HRCP report continues that meanwhile, the genuine grievances of people across Pakistan are being brutally suppressed.  Specifically referring to Karachi (Sindh) and Balochistan:

    …while statistics suggested that things had improved in Karachi after the paramilitary operation in the country’s biggest city, little attention was paid to complaints of rights violations at the hands of the security forces…[3]

    [3] Ibid.

25. Human rights abuses have been a feature of life in Pakistan but after the crack-down by security forces these were enhanced as a lack of governmental accountability remained a problem: the most serious being extrajudicial and targeted killings; disappearances; torture; lack of rule of law (including lack of due process, poor implementation and enforcement of laws, and frequent mob violence and vigilante justice); gender inequality; and sectarian violence. [4] “Discrimination against religious minorities continued.  Corruption within the government and police, as well as rape, domestic violence, sexual harassment, honour crimes, other harmful traditional practices, and discrimination against women and girls remained serious problems.  Child abuse and commercial sexual exploitation of children persisted.  Child labor remained pervasive”.[5]

    [4] Pakistan 2015 Human Rights Report, updated on 14 April 2016, accessed on 9 February 2017.

    [5] Ibid.

26. In addition, there is a high threat of kidnapping across the whole of Pakistan, but particularly in Karachi, Balochistan and FATA.[6]

    [6] accessed on 9 February 2017. 

27. Hence, the situation in Pakistan generally, as well as that in Karachi, does not persuade the Tribunal that it is preferable to the living conditions enjoyed in Australia, particularly given the characteristics of the applicant as an as yet, single woman, without work or strong ties in Pakistan and who has attempted to travel to Australia previously.  In essence, the Tribunal does not see any reason why the ties that are claimed to hold her back in Pakistan now, are any stronger than they had been previously when she applied for a student visa.  The visa applicant is educated and given the country information about the particular risks faced by women in particular and their role in society in Pakistan, the Tribunal does not have confidence that the applicant may not attempt to change her status onshore by continuing her studies or by some other means.

    cl.600.211(c)

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

29. The Tribunal notes that the applicant has previously requested to travel to Australia to assist her uncle, Mr Abid Khan with caring for a seriously ill child.  On this occasion the applicant is seeking to travel with her mother to Australia to accompany her as this will make it easier for her mother to negotiate airports and the general stresses involved in an overseas voyage.  The sponsor argued at hearing that it was hard for him to fly to Pakistan and then accompany his mother to Australia and then back to Pakistan again.  The Tribunal has taken into account that the applicant’s mother would like assistance in travelling to Australia. The Tribunal finds, however, that the claimed purpose of the visit does not outweigh concerns about the applicant’s genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

30. The Tribunal also took on board the evidence given by the sponsor, the applicant’s brother as well as her uncle, Mr Abid Khan, at hearing, and the applicant, that she would return home after on the expiry of her visa.  In light of the multiple challenges facing Pakistan, Karachi, and women there, the Tribunal on this occasion has not been persuaded that returning to Pakistan is a genuinely held intention by the applicant. 

31. The Tribunal also appreciates that the applicant’s mother has been granted a 12 month multiple entry Visitor visa.  The Tribunal considers, however, that the applicant’s mother has different characteristics to the applicant who is only setting out on her adult life and who would be highly motivated to seize an opportunity to start a new life in a country.

32. 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

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

    Rosa Gagliardi
    Member