Mohadissa (Migration)

[2020] AATA 5991

Mohadissa (Migration) [2020] AATA 5991 (13 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kaneez Mohadissa

VISA APPLICANTS:  Mrs Masooma Shoukat
Mr Shoukat Ali

CASE NUMBER:  1932511

HOME AFFAIRS REFERENCE(S): BCC2019/4964260 BCC2019/4964139

MEMBER:Adrienne Millbank

DATE:13 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 13 November 2020 at 4:48pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – strong personal ties to Australia – genuine temporary stay criterion – immigration history of the visa applicants’ family – instability in Quetta – anxiety and depression – exaggerated ill-health – strong incentive remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 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 6 November 2019 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 are nationals of Pakistan, of Hazara background, living in Quetta. The first-named visa applicant is 55 years old. The second-named visa applicant is her 65-year-old husband.

3. The review applicant is their 32-year-old daughter, who first arrived in Australia in 2010 on a Partner (Subclass 100) visa. The review applicant’s husband arrived by boat from Afghanistan in 2001, claimed asylum and was granted a permanent Protection (Class XA) (Subclass 202) visa in 2006. The review applicant and her husband are Australian citizens, and have four living children, born in Australia, aged approximately seven, five, three and one. A son born in Australia in 2011 died shortly after birth.

4. The visa applicants applied for the visas on 3 October 2019. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the visa applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream. At the time of application, the visa applicants stated they intended a visit of up to six months, from 20 October 2019 to 20 April 2020. At the time of decision, they stated that they intend to come as soon as possible, and stay up to six months.

5. 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.

6. The delegate refused to grant the visas on the basis that the visa applicants did not meet cl.600.211. The delegate was not satisfied that the visa applicants genuinely intended to stay temporarily in Australia.

7. The decision records the concerns of the delegate that: the visa applicants intended to travel together; no immediate family member would remain in Pakistan; the visa applicants have family links in Australia; and they had no employment to return to. The delegate acknowledged that the second-named visa applicant owns a house in Pakistan but noted that this could be sold. The delegate acknowledged the visa applicants have travelled to other countries, including Iran and Iraq, but gave this travel limited weight, given their lack of family ties in those other countries.

8. The delegate was conscious of the immigration history of the visa applicants’ family in Australia, and the instability in Quetta. (As noted, the review applicant’s husband arrived by boat from Afghanistan, and claimed asylum. The review applicant arrived on a partner visa. A cousin of hers also arrived on a partner visa. The review applicant’s brother came to Australia in 2013 on a Student visa, and subsequently claimed asylum.)

9. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

10. On 21 November 2019 the review applicant, through her representative, requested priority processing due to her compelling circumstances of having young children and a new baby born on 29 October 2019, suffering ill-health, and needing the support of her parents. That request was refused on 11 December 2019, on the grounds that the review applicant’s situation was not significantly different from those of other applicants. In January 2020 the Tribunal received a letter from a clinical psychologist advising that the review applicant had been receiving psychological support for anxiety and postpartum depression; and in   January 2020 the Tribunal received a letter from her general practitioner, stating that she was suffering from a depressive disorder that had worsened since the birth of her daughter in October 2019, and supporting priority processing. On 29 January 2020 the Tribunal advised the review applicant that it had decided to give priority to her application.

11. On 26 October 2020 the review applicant was invited to attend a hearing scheduled for 10 November 2020. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

12. On 27 October 2020 the Tribunal received a request, through the review applicant’s representative, for an in-person or video hearing, for the reason that ‘the case is very sensitive and involves significant emotional factors that cannot be justified over the phone hearing’. The Tribunal agreed to the request. On 30 October 2020 the Tribunal invited the review applicant to attend the hearing by video conference. On 30 October 2020 the representative confirmed to the Tribunal that the review applicant was able to participate in a video hearing; however, the visa applicants were not, because they lacked technical knowledge. The representative requested the visa applicants be contacted via telephone. The Tribunal agreed with this request.

13. The review applicant appeared before the Tribunal on 10 November 2020, by MS Teams Video, to give evidence and present arguments. The Tribunal also received oral evidence, by telephone, from the visa applicants in Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

14. The review applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

15. A further submission from the representative, and other documents, which the Tribunal has considered, were received by the Tribunal on 11 November 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

18. In the present case, the visa applicants seek the visas for the purposes of visiting their daughter and caring for their grandchildren. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

19. 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)).

20. The visa applicants have not previously held substantive or bridging visas in Australia. Previous applications for Visitor visas were refused in 2012 and 2015.

21. 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 three 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.

22. The first-named visa applicant is a self-described unemployed housewife. The second-named visa applicant retired in February 2014. The Tribunal accepts their stated intentions not to work or engage in study or training in Australia, and to comply with conditions 8101 and 8201. The Tribunal accepts the representative’s submission that the visa applicants understand that they will not be able to apply for substantive visas other than protection visas while in Australia. The Tribunal accepts that the visa applicants do not intend to apply for substantive visas, other than protection visas, while in Australia, and that they therefore intend to comply with condition 8503. For the reasons discussed below, the Tribunal considers the visa applicants likely to apply for protection visas, and therefore that they intend to remain in Australia longer than the stay that would be permitted on visitor visas. To the extent that the visa applicants intend to apply for protection visas while holding substantive visas, the Tribunal accepts that they intend to comply with condition 8531.

23. The Tribunal has considered all other matters relevant to the visa applicants’ genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. (cl.600.211(c)).

24. At hearing, the review applicant confirmed that her husband came to Australia from Afghanistan by boat and claimed asylum, that she married in Quetta and came to Australia on a partner visa. She confirmed that her cousin also came to Australia on a partner visa. She advised that her cousin also lives in Melbourne, has young children, and they see each other monthly. She confirmed that her brother, 25 years old at the time of decision, came to Australia on a student visa and subsequently lodged an application for a protection visa. She advised that her brother lives with her; that he attended high school before being granted a protection visa; and that he is not employed.

25. The review applicant claimed, in written submissions and at hearing, that she needed her parents to support her around the time of the birth of her children. Written statements of support, dated from 2012 to 2019, were provided by general practitioners, a community health counsellor, a midwife, and a psychologist, attesting that it would be beneficial to the review applicant to have the support of her parents around the times of the births of her children. The Tribunal put to the review applicant at hearing that her youngest child is one year old; that from the photos provided, her children are healthy and happy; and that the need for her parents’ presence has passed. The Tribunal pointed out that regarding the review applicant’s claimed ill-health, the most recent medical evidence was a ‘Health Summary Sheet’ provided by Dr Prakash from Thompson Road Medical Centre in Cranbourne, Victoria, issued on 12 February 2020. This shows that the review applicant was diagnosed with post-traumatic stress disorder following the death of her first-born in 2011; that when she was examined in June 2017 there was ‘nil significant’; that in July 2019 she was diagnosed with Gestational Diabetes; and that in January 2020 she was diagnosed with depression. Evidence was also provided that the review applicant was diagnosed, in 2019, with pelvic arthropathy pain, associated with childbirth. At hearing the review applicant stated that she suffers from incontinence, and has been advised not to lift heavy loads.

26. The Tribunal asked the review applicant what medication and treatment she is receiving. The review applicant stated that she was prescribed anti-depressants, but doesn’t take them because she is breast feeding. She stated that she has been diagnosed with dermatitis. She stated that she is run-down and that her parents’ support would provide respite from her childcare responsibilities so she could go to the doctor more often. She claimed that she suffers from isolation, with no-one to help her. She claimed that her brother provides no help or assistance at all, because he is a male, and her husband also is of little use because he is a male. The Tribunal asked the review applicant what use, in that case, her father would be. She stated that her father would take the older children to school and pre-school, help with shopping, and organise outdoor activities for the children, while her mother helped her indoors.

27. Following the hearing, on 11 November 2020, the Tribunal received a medical certificate issued on 10 November 2020 by Dr Shahroze Khan, of first Health Medical Centre in Hampton Park, Victoria, certifying that the review applicant’s brother ‘is receiving treatment for Severe lower back disc disease’, and ‘is unable to do any manual work’.

28. The Tribunal accepts that the review applicant was traumatised by the death of her first-born; that she has suffered from anxiety and depression and ill-health associated with childbirth; that she wants to spend time with her parents; and that her parents would support her in caring for her children, their grandchildren. The Tribunal is not convinced, however, that the review applicant has received and receives ‘no help’ in caring for the children from her husband and brother, the children’s father and uncle, notwithstanding her brother’s bad back. The Tribunal is further not convinced, in light of the number of support letters showing she has been able to access health and support services, and because her (female) cousin lives in the same city, that the review applicant has ‘no-one to help her’. Given the lack of corroborative contemporary medical evidence, the Tribunal does not accept that the review applicant’s depression ‘is worsening’. The Tribunal considers the review applicant’s ill-health has been exaggerated for the purpose of the visa applications.

29. In a statutory declaration signed on 2 November 2020, the review applicant declared that her parents are genuine visitors and would ‘maintain’ all their visa conditions. She declared: ‘They do not have an asylum seeker claim and their life is not at risk in Pakistan’, and: ‘They will return to Pakistan before the visa expiry’. In affidavits sworn on 5 November 2020, the first and second-named visa applicants also declared that they are genuine visitors; that they have no asylum seeker claims; that they will not apply for protection visas in Australia; that they will return to Pakistan before the expiry of their visas; and that they will ‘maintain’ the conditions of their visas.

30. Evidence was provided that the visa applicants travelled to Iran and Iraq, for three to four weeks each time, in 2016, 2017 and 2018, and that they travelled to Iran, Iraq and Syria in 2020. The representative advised that this travel was for religious purposes. At hearing the second-named visa applicant stated that he had travelled in the past to other countries, including Singapore, Malaysia and India, and had ‘always come back’. The Tribunal accepts that the visa applicants have not sought to remain in other countries that they have travelled to, but does not take this to show they will not seek to remain in Australia, where they have strong family connections.  

31. Evidence was provided that the first-named visa applicant held, as at 2 November 2020, the sum of AUD6,146.84 in her bank account in Quetta. The second-named visa applicant stated that he has been the victim of fraud, and the contents of his bank account have been transferred into his wife’s account. The visa applicants stated at hearing that they have funds sufficient for their travel and living expenses; that they have no plans to travel within Australia, and their daughter and son-in-law would provide accommodation and financial support if needed. In light of the evidence indicating the visa applicants have limited financial resources, the Tribunal is not convinced by their claim that they will return to Pakistan within the validity of visitor visas, so as to ensure they will be issued visitor visas in the future, enabling them to travel frequently to visit their family in Australia.

32. The Tribunal asked the second-named visa applicant why he sent his son to study in Australia, and what studies his son completed. The second-named visa applicant stated that he sent his son to Australia because of the high level of discrimination against Hazaras in Quetta’s education institutions, and because of ‘target killings’. He stated that his son attended secondary school in Australia, but did not continue studying ‘after he applied for protection visa’. Given the visa applicants’ son stopped studying after he applied for or obtained a visa enabling him to stay, the Tribunal did not find the claim that he genuinely intended to stay temporarily for the purpose of study when he came to Australia, convincing.

33. The second-named visa applicant stated that the situation for Hazaras in Pakistan has settled down since 2013, when his son left, and, as noted, that he and his wife do not intend to apply for protection visas in Australia. He argued that he has a house in Quetta that has been recently renovated, which he would not have spent money on had they intended to leave; that he is involved as a volunteer in his local community; that his ‘livelihood’ is in Pakistan (he would not receive his pension if he leaves the country permanently); and that he and his wife do not want to leave their home country, at their age. The first-named visa applicant stated that they have extended family and friends, where they live, in Quetta. The Tribunal accepts that the visa applicants have recently renovated their house in Pakistan, and that they have extended family and other connections in Quetta. The Tribunal notes however that the visa applicants’ house could be sold; that they could apply, as refugees, for financial support in Australia; and that all of their immediate family is in Australia.

34. Regarding the visa applicants’ claim that the situation in their home country has improved since 2013, the Tribunal accepts that the security situation in Pakistan might have improved, but notes the Department of Foreign Affairs and Trade (DFAT)’s latest Country Information Report, dated 20 February 2019, describes Pakistan as a country where:

    protracted terrorism, vulnerability to natural and humanitarian disasters, ethnic and religious tensions, and periodic military interruptions of civilian rule undermine stability and serve as significant push factors for internal relocation and external migration,

    and that, in regard to Hazaras living in Pakistan, the report advises that they continue to be ‘at risk of violence, societal discrimination and security threats’.

35. The Tribunal considers the presence of visa applicants’ children and grandchildren in Australia provides a strong incentive for the visa applicants to remain in this country. The Tribunal also considers they are aware that Australia’s asylum system provides a pathway for them to live in a more stable, wealthy country.

1. The Tribunal has considered the evidence and arguments regarding the visa applicants’ incentives to return to their home country, and finds these incentives to be outweighed by the incentives they have to remain in Australia.

2. 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 visa is granted, and finds that the requirements of cl.600.211 are not met.

   DECISION

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

   Adrienne Millbank
   Member