Naveed (Migration)

[2019] AATA 2424

Naveed (Migration) [2019] AATA 2424 (18 June 2019)

Corrigendum

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ayesha Naveed

VISA APPLICANTS:  Mr Shahid Naseer Bajwa
Mrs Amtul Waseem
Mr Ahmed Naseer Bajwa

CASE NUMBER:  1804177

DIBP REFERENCE(S):  BCC2017/4118373

MEMBER:Ian Garnham

DATE OF DECISION:  18 June 2019

DATE CORRIGENDUM

SIGNED:7 August 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The date “13 June 2019” on the first page of the decision record should be replaced with  “18 June 2019”.

Ian Garnham
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ayesha Naveed

VISA APPLICANTS:  Mr Shahid Naseer Bajwa
Mrs Amtul Waseem
Mr Ahmed Naseer Bajwa

CASE NUMBER:  1804177

HOME AFFAIRS REFERENCE(S):          BCC2017/4118373

MEMBER:Ian Garnham

DATE:13 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 June 2019 at 3:53pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – ethnicity – Ahmadis – persecuted minority group in Pakistan – wealthy and privileged status – family’s travel history – significant omission of information in the applications – applicants’ previous migration history – credible witnesses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration on 12 December 2017 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 6 November 2017. 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 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). 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 Departmental (DOFA)[1] delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because the reasons (incentives) that the applicants provided for returning to Pakistan were not outweighed by the possible disincentives to remain in Australia. 

[1] Department of Family Affairs

5.    The review applicant appeared before the Tribunal on 13 March 2019 to give evidence and present arguments. The 1^st visa applicant gave evidence to the tribunal by conference telephone.  The Tribunal also received oral evidence from the sponsor’s husband, Naveed Ahmed Bajwa.   

6.    The review applicant was not represented in relation to the review. 

7.    Before the hearing the review applicant presented a submission dated 03 March 2019 and various documents to the tribunal.   

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

CONSIDERATION OF CLAIMS AND EVIDENCE

9.    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. The review applicant’s relevant background is as follows; the review applicant is a 36yo national of Pakistan who married in January 2006.  She first came to Australia in September 2015 with her husband as a secondary applicant for his subclass 189 Skilled – Independent (permanent) visa.  She has departed Australia in the following periods and returned to Pakistan; 15/10/2015 – 21/09/2016 and 03/11/2018 – 28/01/2019.

2. In the present case, the visa applicants seek the visas for the purposes of visiting their daughter/sister (the review applicant and sponsor) and her family who are living in Australia.         

3. 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.

2. In this case none of the three visa applicant’s has previously travelled to Australia. 

3. The visa applicants are all part of the review applicant’s family; her 69yo father (the 1st visa applicant), 67yo mother (2^nd visa applicant) and her 30yo brother (3^rd visa applicant).  The other members of this family are a sister who lives with her husband in Lahore and another sister who married a Canadian national and has lived there for approximately 3 years.  All three of the visa applicant’s live together in Sahiwal in the Punjab, Pakistan. 

4. According the review applicant’s submission the visa applicants’ international travel is limited to her parents once visiting India and her brother has also done so on two occasions.  In addition; the 1^st visa applicant has travelled to Canada for 5 months in October 2016 and visited his daughter who now lives there.  I note a copy of the 1^st visa applicant’s multiple entry Canadian visa issued on 08/09/2016 and expiring on 10/07/2021 has been provided by the applicants.[2]

   [2] At F: 131 (AAT)

5. The review applicant’s husband gave evidence that his parents (who are also of Ahmadi ethnicity) have visited their family on at least 3 occasions (in the period, September 2014 – May 2017) and that they have always complied with their visa conditions.  I found the review applicant and her husband to be highly credible witnesses and accept this information to be correct.[3]  I acknowledge and recognise that this travel represents compliant travel by the review applicant’s husband’s family and also that his family are in similar circumstances to the visa applicants.              

cl.600.211(b):

[3] At F: 121 (AAT)

1. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the subclass 600 visas would be subject. 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.

2. The review applicant’s parents are in their late sixties and I consider it is highly unlikely that they would seek to work or engage in long-term study if they were to come to Australia.  In contrast, the review applicant’s 30yo brother is an entirely different prospect.  The review applicant advised the tribunal that the 3^rd visa applicant has legal qualifications this is why he has taken over the title of his parents properties and managing their agricultural business.  In his application form it is stated that the family owns land (now transferred into the name of the 3^rd visa applicant) throughout the Punjab and collectively it is worth over $3 million AUD.

3. I note that the 3^rd visa applicant now holds all of the family assets, presumably on trust for his parents.  I recognise that these are significant assets that generate income, but also acknowledge as identified by the delegate that these assets are transferable and that if the applicants were to come to Australia permanently the assets could be liquidated.      

4. With the applications extensive documentation was provided to establish the land ownership.

5. With respect to the condition regarding further substantive visa applications (8503), I also consider it highly unlikely that the parents of the review applicant would seek a further substantive visa other than a protection visa.  Once again, the 30yo 3^rd visa applicant is not in a relationship in India, as such, he would be susceptible to the possibility of seeking to access residence through a variety of pathways if he was to choose to do so.

6. Similarly, because of their Ahmadi ethnicity all of the visa applicants could potentially seek protection visas if they were in Australia.  This prospect is discussed further below.     

cl.600.211(c):

1. The tribunal has also considered all other relevant matters.

2. The delegate acknowledged that it is widely recognised that Ahmadis are a persecuted minority group in Pakistan.  This is not disputed by the review applicant and her husband.  However, in response the review applicant told the tribunal that there is no history of her family seeking asylum and that she is confident that all of the visa applicants would return to Pakistan.  Part of the reason for this is that they are wealthy and privileged people by Indian standards, their status, protects them from persecution to a large extent.  In any event, it would be wrong for a decision maker to exclude all Ahmadis from being considered as genuine temporary visitors based purely on their ethnicity.

3. In this case, as I have discussed at paragraph 17 above, the review applicant’s husband’s family have visited he and the review applicant a number of times.  The in-laws of the review applicant provided a proximate example of Ahmadi family members who have not sought protection upon travelling to Australia as tourists.

4. I also discussed with the applicants, the commonly used strategy of granting a visa to an individual or couple when considering multiple family member applications.  This is because the close family members who remain in the home country provide further incentive for the travelling family members to return home.

5. In this case I discussed this prospect with the review applicant and the 1^st visa applicant.  The review applicant said that if her parents and brother cannot come together; her parents should come first because of their age, and if only one of her parents is able to come, it should be her father because he has proved he is able to travel alone by his trip to Canada.  The 1^st visa applicant said that he wants to come to Australia with his wife because they are old and should travel together.

6. For reasons that shall become apparent, I do not consider that any of the applications should be reconsidered by DOFA on this occasion.  However I do consider that this family will again apply for visas to visit Australia and it is not correct for decision makers to blithely refuse applications based on the applicant’s ethnicity or race alone.   But for the following errors in all three applications, and because of the credibility and genuineness of the applicants, in the absence of these errors I would have directed that at least one of the visa applications be reconsidered by DOFA on this ocassion.

7. The review applicant’s husband stated he prepared all three visa application forms.  All three applications contained significant omissions of information with respect to all three applicant’s previous migration history.

8. Firstly, in all three applications, in response to the question; Has the applicant ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?  In all three cases the response was no; and in all three cases this response is incorrect. 

9. The review applicant’s husband, after notification of the errors provided amended information seeking to correct the errors.  He said that the incorrect information was an honest mistake and was made due to some confusion and miscommunication.  The corrected information was as follows:

   ·  The 1^st visa applicant was refused a visa application for the United States of America (USA) in 2013.[4]

   ·  The 2^nd visa applicant was refused a visa application for the USA in 2013.[5]

   ·  The 3^rd visa applicant was refused a visa application for the USA in 2015[6]

   [4] At F: 160 (DOFA)

   [5] At F: 14 (DOFA)

   [6] At F: 15 (DOFA)

10. I accept that in this case the applicants were unrepresented and as I have discussed above the review applicant and her husband were genuine and credible witnesses.  Nevertheless, because they were aware that due to their ethnicity these applications would be subject to significant scrutiny I find it surprising that this information was not included in the original application.  Furthermore it became apparent at the hearing that the applicants had also not included further information concerning previous visa applications by the visa applicants.  This information is as follows:

    ·  The 2^nd visa applicant also applied for a Canadian visa in 2016, when the 1^st visa applicant also did, and her application was refused.

11. All of this information was or should have been well known to the review applicant and her husband, especially when the initial corrections were made.  For this reason I hold significant concerns that an element of wilful blindness attached to the original applications in a hope that this information would not be discovered.  The further omission of information, after the corrections had been made, and was discovered at hearing, has led me to a conclusion that if further applications are made, for any of the visa applicants, they should be made afresh and include all the relevant information.

12. Having said this it is important that further decision makers consider any such applications on their merits and do not rely on the omissions in these applications as a basis for refusal of any subsequent applications.  This is because in all other respects the applications were sound, and, as I have previously stated the review applicant and her husband were genuine and credible witnesses.               

13. 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

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

Ian Garnham
Member