Panahi (Migration)

[2021] AATA 2991

Panahi (Migration) [2021] AATA 2991 (12 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Farzana Panahi

VISA APPLICANT:  Mrs Fatima Alizada

CASE NUMBER:  1908864

DIBP REFERENCE(S):  BCC2019/172793

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 July 2021 at 11:01 am (WA time)

DATE OF WRITTEN RECORD:                23 July 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

· cl 600.211 of Schedule 2 to the Regulations

Statement made on 23 July 2021 at 1:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary stay in Australia – property ownership in Afghanistan – sponsor expecting a child – strong family connections in Afghanistan – previous visits to other countries – financial resources to support the visit – Afghan security situation – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [11.01 am]

1. MEMBER:  On 23 January 2019 your mother applied for a visitor visa to come to Australia.  I am satisfied that she is related to you as your biological mother.  The decision-maker from Immigration who is called a "delegate" refused your mother's application on 20 March 2019.  On 10 April 2019 you, as the review applicant, on behalf of your mother, applied to this tribunal for that decision to be reviewed.   I have read the decision in preparation for our first hearing date.  These seem to be the key reasons that the delegate refused the application.

1. The delegate noted that your mother had indicated the presence of family members that would remain in Afghanistan during the proposed visit, namely her mother. The delegate acknowledged that family members may offer some inducement to return to Afghanistan but was not satisfied that the presence sufficiently demonstrated that your mother intended a genuine temporary stay in Australia.  The delegate noted that your mother had indicated that she owns land and property in Afghanistan.  The delegate placed limited weight on this land and property ownership as an incentive to return to Afghanistan because land and property is easily transferable as an asset and that could potentially be sold or leased from within Australia.

1. I do note, and this is the tribunal making comments, it appears that there was no question or doubt as to her actual ownership of the land and property.  That has formed part of my decision-making assessment in this matter.

1. The delegate had considered your mother's personal circumstances in Afghanistan that may encourage her to remain behind in Australia.   At that time, being time of decision on 20 March 2019, recent reports from the Department of Foreign Affairs and Trade indicated that Afghanistan was currently experiencing civil disruption including war, lawlessness and political upheaval.

1. The delegate accepted that your mother may not be directly affected by this civil unrest, but reports indicated that the entire country is affected by civil disruption.   Given such information the civil unrest in Afghanistan at the time the delegate considered that your mother may be encouraged to remain in Australia after the expiry of any visa.   The delegate noted that you were then pregnant with your second child and whilst the delegate was sympathetic to your medical condition and circumstances, the delegate considered you would be able to take advantage of services available to you here in Australia to assist at that time.

1. The delegate acknowledged that these factors may not in themselves be significant but on balance found that the combination of the factors leads to a conclusion that your mother's expressed intention to visit only temporarily was not genuine.  So, they seem to be the reasons.

1. I remind myself that I have to make my own decision and I am not obliged to follow any of the reasoning of the delegate.   In making this decision I have given careful consideration to everything that was provided to the department in the first place and everything that has been provided to the tribunal.  I have considered the evidence that you and your husband gave on the last occasion and your arguments as to why the visa should be granted.

1. On considering the application as if I were the original decision maker from the beginning.  I must follow the same law and the same regulations that the delegate was required to.   I invited you to participate in a hearing because I was not able to decide on what I had before me, so I needed to hear from you and if necessary, any witnesses.   I consider that I have given you opportunity to give evidence and present arguments relating to the issues. I have given our representative opportunity to give submissions during the hearing.

1. Whilst preferable that the hearing would have occurred fact to face, for the hearing itself the next best arrangements were put in place.  I did not detect any prejudice to you because of the fact that the hearing was not conducted face to face.  Of course, this morning unfortunately, there were logistical issues or IT issues, meaning that we could not talk via video and we have talked by telephone.  Nevertheless, I still have to make sure that you have received a fair opportunity to give evidence and present your arguments.  My view is that you have.

1. The law is found in Part 600 of Schedule 2 to the Migration Regulations, in particular Clause 600.211 is particularly important because that tells me as a tribunal, I need to be satisfied that your mother genuinely intends to stay temporarily in Australia. She must genuinely intend to stay temporarily for the purpose for which a visitor visa can be granted. Of course, this is a sponsored application.

1. A visit in the sponsored family stream is to visit specified family or to visit for non-business or non-medical purposes.  I am satisfied that you are, and also your husband and children, are specified family.  There is no evidence before me that your mother has any business or any intention to conduct any business in Australia and there is no evidence before me that she has medical conditions for which she would seek treatments in Australia.

1. The issue as to purpose of the travel does not appear to have been in issue for the delegate.  So subjectively considered, I am satisfied the intended purpose of the visit is a purpose for which a visa can be granted in this stream.  I have to also consider if your mother has been to Australia before and whether she substantially complied with the conditions of the most previous substantive visa or bridging visa.  It follows that because she has never been to Australia before, I cannot give weight to the fact of her compliance but in the same token I am not going to make an adverse assessment by reason of the fact she has never been to Australia and able to prove the fact of her compliance.

1. I need to consider if she intends to comply with conditions if the visa were to be granted.  The conditions would be that she not study for more than three months, that she not work and, of course, that she leaves before the expiry of the visa.  It is that last consideration that is particularly important in this particular matter.

1. We had the first hearing on or about 31 May and, as I have said, I received evidence from you and your husband.   I am going to take some time just to summarise some of the submissions and some of the documents that I have considered.

1. There was a submission of 24 October 2019 from your representative.  She addressed the relevant criteria.  There was a response to the refusal decision and these points are important that your mother had provided evidence of  her strong connection to her home in Afghanistan.  She had provided evidence of property ownership and strong emotional ties to her own mother.   She has made a number of trips outside of Afghanistan, being to Iran and Iraq to visit religious sites.  I am satisfied that she has visited Iran and Iraq.

1. Your representative made some submissions about the extent to which Afghan citizens have come to Australia and made claims for protection and how the tribunal should fairly deal with that in relation to this particular application.  She makes a point that the assumption that visitor visa holders from Afghanistan pose an unacceptable risk of overstaying is not supported.  There is statistical information included.  I have noted that but there is no need for me to summarise that.

1. She also made the point to the department policy at that time in regard to assessing genuine temporary entrant requirements and she rightly says that there are many factors that need to be considered.  She acknowledged that the security situation in the country of origin is a consideration but there is no indication that this consideration alone should be given more weight than numerous other factors.

1. Generally speaking, I think that is correct.  However, it is a matter of the extent of weight to be given in circumstances where there are indications that a country has particularly serious security issues, as Afghanistan does.

1. She then addresses some of the key criteria being whether the applicant had complied substantially with conditions. She makes the same point that I have, that she has never previously visited Australia, but she has been to Iran, Iraq and Pakistan.  As I have said, I already accept that.  She pointed out that you had been to Afghanistan a number of times to visit your mother and that because of the fact you now have two children with your husband, making the journey as a family is more difficult and expensive.  I think that is a point well made.

1. Your representative addressed the intention to comply with conditions to which the visa would be subject.  I think she is right when she says that there would be no indication or reason that your mother would, at her age in life, would wish to undertake any study in Australia and I discount that as a consideration.

1. Particularly important to me is or were, the personal circumstances of your mother.  She had provided evidence of this.  She is a widow.  She lives in a rural area of Afghanistan, cares for her mother.  There were some photographs provided to illustrate to some extent your mother's life in Afghanistan.  It was acknowledged that you mother does not have employment but on the other side of the ledger, your mother's responsibilities to care for her own mother are a significant factor.  The fact that your mother has her own home was also highlighted.

1. The submissions also address that during the time when the Taliban were most recently in control of Afghanistan, being 1996 until 2002, the family - or your mother's family - was forced to flee to Iran but as soon as the danger from the Taliban was believed to have gone they did return to Afghanistan.   That is a question that I have particularly pondered over in light of the recent country information indicating that the Taliban are gaining increasingly a hold by reason of the withdrawal of allied troops in Afghanistan.  So that is something I have particularly had to consider.

1. Your representative addressed the personal circumstances of your mother in her home country.  She made the point that your mother is somewhat insulated from the general conditions in Afghanistan, she is an elderly lady who has never worked outside of the family home.  The financial situation of your mother is generally comfortable, and she is well respected.

1. Your representative sought to make the point that those seeking to migrate from Afghanistan are, to an overwhelming extent, younger men motivated by a combination of frustration at lack of economic opportunity and the security situation.  I also note that your mother, well you have a sister that is living in Germany.

1. Your representative addressed your credibility.   I have not identified any particular credibility issues in relation to when I spoke to you last occasion. 

1. In concluding her submissions, your representative made the following points; that there was no question that Afghanistan is a troubled country but that this issue could not be or cannot be the only and/or overwhelming criteria for making a decision regarding the application.  I accept the submission that all applications have to be considered on their own merits, taking into account all of the information and supporting documentation provided by an applicant.  I consider that in  this particular matter that is the approach that I have taken. 

1. There were some documents provided prior to the hearing.  That included a visa with stamps, a further visa, a visa to visit Pakistan.  That was back on 31 January 2019 and allowed for travel up to 30 July 2019.   There was a statutory declaration from yourself which I have duly noted.

1. In that statutory declaration, the following were key points from me; one is that the area, Mazar-i-Sharif is not impacted by the insecurity and violence that affects so many other parts of Afghanistan and that your mother is free to move around whenever she wishes to.   She then makes the point - or you make the point - that when the new temporary parent visa was introduced into Australia in April - being April 2019, shortly after the visa was refused you had asked her if she would like to apply for a contributory parent visa.  She had said to you that she does not want to come to live in Australia for a long period of time, she is committed to looking after her own mother.  I raised that with you during the hearing and I will talk about that further soon.

1. There was a statutory declaration from a Dr Deznowicz perhaps more in the line of character reference or support, a letter from an Eklima Nadir Shah, vice president of the Ozcan women's volleyball team since 2015.  I acknowledge your involvement with the sport of volleyball.  There were some further submissions of two pages leading into the hearing.  They were dated 20 May 2021.   She makes a number of points that were made in the first submission.

1. Three was reference to a tribunal decision in Shefaju [2019] AATA 6021 delivered 3 October 2019. I have taken time to familiarise myself with that particular decision. Of course, I am not bound by any other tribunal decision, but I had noted the approach taken by the member in that particular matter in balancing out the weight in that particular matter that can be accorded to country information. Of course, at that particular point in time things were also particularly serious but perhaps not to the same degree they are now and I think that the approach taken by that Member was the correct on.

1. There were photos of two women.  One with some goats or sheep - perhaps sheep - with a date, I think it is 18 May 2021.  The purpose of these photos was to verify, I  guess, the particular location, the relationship or connection between the two women, the younger of the two women I accept is your mother because her face is included on other documents and it is the same person.  I am satisfied about that.  There are also pictures of who I accept is your mother, with other people and children.

1. There was quite a bit of information provided, being links to various articles in relation to violence, perhaps terrorism in the Mazar-i-Sharif province.  Whilst I have not looked at all of those, I can accept that there have been issues in that particular area.  I have noted the evidence that you gave and the evidence of your husband.  I am not going to summarise that evidence at this stage, but I do acknowledge that it is largely reflected in the submissions and also in the statutory declaration that I have already referred to.

1. Your representative provided me with some oral submissions at the end of that hearing to confirm that you had sought some guidance or advice in relation to seeking - or the possibility of seeking - a contributory parent visa.  It seems from the evidence provided that was back in 2019.  Of course, there is no application on foot at the moment and I was told that your mother did not want to pursue the contributory parent visa as being a main reason.

1. She pointed out yet again, that what we do hear in some areas of Afghanistan is horrific, but it is not across the board necessarily and people do go backwards and forwards between different districts.  She pointed out to me that Australia, in relation to your mother, would not be a place for her to settle as an elderly Afghani woman who does not speak English.

1. I adjourned.  We found a new date to come back, being today.  In the interim I instructed staff to write to you to seek further documents being copies of bank statements, for bank accounts held personally or jointly with your husband for the period 1 January 2021 to the present.  The reason I sought that is so that I could be satisfied as to your financial health to be able to support your mother for a period of time but also in relation to helping her with flight arrangements and so forth.  Based upon the evidence you have provided I am satisfied that you are in a position to do so.

1. I sought documents concerning receipt of rental income by your mother in relation to leases for property owned by her.  Some evidence was provided.   I will discuss that in a moment.   I also sought some evidence about you seeking that advice.

1. There were fresh documents provided which were translated on or about 20 June 2021.  I did look carefully at these documents.  The copies of originals were provided.  One document is as follows; it purports to be a lease agreement between a person Khudadad who affirms and declares that he has leased agricultural land with an area of 14,000 square metres, thereby producing two crops, one being rice and one being wheat.  The owner of the land is Ms Fatima, daughter of Sakidad, a native resident of Jang Agli(?) village.  The land produces 210 kilos per year, which is made up of certain grain.  The person pays the rent annually to your mother or a representative.  The term of the lease is for a period of five years.

1. To the extent able, I have carefully looked at the documents for evidence that they are bogus.  I have not been able to detect anything to suggest they are bogus.

1. There was evidence of an email being sent to you on 24 October 2019 from an address I accept is your representative.  Much of that has been redacted for reasons that I had anticipated in the letter, being confidential communications.  The title of the email, rather, is "Eligible sponsors for the sponsored parent visa".  The email indicates that on the morning of 24 October 2019 there had been a conversation about that particular issue with yourself.  Based upon that I am satisfied there had been discussions or considerations about the possibility of your mother entering Australia for perhaps a protracted period of time on a parent visa.  It did not proceed.

1. I had looked at the country information as of today.  The effect of it is to say that with the departure of international military forces there is an increased risk of attacks.  The security situation in Afghanistan is extremely dangerous.  It says that the Australian Embassy in Kabul has closed, has moved to a non‑resident model.

1. When I looked at the Smart Travel Advice there was a map of Afghanistan and I noted that Mazar-i-Sharif is right up the very top - or the north of the country, perhaps within maybe 100 or 120 kilometres of the Uzbekistan border.  To the west is Turkmenistan perhaps 400 or 500 kilometres.  To the east is Tajikistan, but on my calculations based upon my understanding of the concentration of the Taliban, particularly areas around Tarankol and so forth, that that area is perhaps 1000 kilometres away from Mazar-i-Sharif.  I cannot discount that where your mother comes from is potentially a significant risk but I think that that particular area is of a lower risk than areas say around Kabul.

1. Your representative made the point that those at risk are more likely to be people of influence rather than just citizens who are going about minding their own business of which your mother would be one.  I think that I can, as a general note, accept that proposition.

1. I also considered a document described as the "Mid-term Review of Australia's Regional Strategy for Afghanistan and Pakistan".  That was released in July of 2020, so it is dated to some extent, but I have considered that also.  So that was all of the information and all of the evidence that I considered.  It is very clear to me that your mother, at her age, would not come to Australia with an intention of working and I accept that she would comply with that condition.  It is even more unlikely that she would come to Australia with an intention to study at all and I can accept that she would comply with that condition.  

1. I cannot be satisfied as to your mother's substantial compliance with conditions of the most previous substantive visa or bridging visa and that is because that consideration is not activated because she has never been to Australia before.  I do give consideration to her visits to other countries, apparently without issue.

1. I am satisfied that the purpose for which the visitor visa can be granted is a purpose for which it can be granted in the sponsored family stream.  There is no indication of any business or any medical purposes.  The issue really is does your mother genuinely intend to stay temporarily for the purpose for which a visitor visa can be granted. 

1. I have given careful consideration to all of the evidence.  I had noted the evidence in the department's file from the time of the initial application.  The weight of the evidence indicates to me that your mother does have ownership of some property at least of which is leased out to others.  I am satisfied about that information.  I am satisfied your mother - and her mother - that they live together, live an unassuming life together in Afghanistan.  I am satisfied that your grandmother is still alive.  I am satisfied that at her age she would require the care and support of others and particularly her own siblings, being you mother. 

1. Your own sister lives in Germany.  I have been satisfied of that and of the fact that it would be difficult for her to return to Afghanistan herself, particularly at the moment.

1. I think it is right to say that country information should not be treated as in itself a determinative factor alone unless, of course, it is the situation that an applicant is well and truly imbedded in the key areas of danger, the motivation to not return would obviously be significant but I am prepared to accept that in the particular area that your mother comes from  that those considerations at the moment at least, are not as significant as perhaps around Kabul or other areas, but I must give weight to that country information and I think overall Afghanistan is not a place to be.

1. But I have got to look at everything, or the total picture and my overall assessment is that it is more likely than not that your mother would have the intention of returning to Afghanistan prior to the visa expiring.

1. I had to give some careful consideration as to whether, by your credibility or your attitude, there was any indication that you would not accept the responsibility of being a sponsor and what that involves my assessment of you is that I do not assess you as being open to that.  I think that you would accept the responsibilities and ensure that your mother would go home.

1. So, having weighted everything individually and cumulatively, I am satisfied that your mother does genuinely intend to stay temporarily for the purpose for which a visitor can be granted.  For that reason, my decision is to remit the application back to the Immigration Department for reconsideration of your mother's application.

   END OF ORAL DECISION   [11.41 am]

   Michael Judd
   Member