Shahzadi (Migration)

[2023] AATA 1194

Shahzadi (Migration) [2023] AATA 1194 (3 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Asma Shahzadi

VISA APPLICANT:  Mrs Samina Khalid

REPRESENTATIVE:  Mr Abdul Hamid Ajiz (MARN: 9788683)

CASE NUMBER:  2213367

HOME AFFAIRS REFERENCE(S):          BCC2022/2279266

MEMBER:Christine Cody

DATE:3 May 2023

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 3 MAY 2023 AT 8:15AM

CATCHWORDS
MIGRATION – VISITOR (CLASS FA) VISA – SUBCLASS 600 (VISITOR) – TOURIST STREAM – GENUINE TEMPORARY ENTRANT – INCENTIVES TO RETURN OR REMAIN – REVIEW APPLICANT’S PHYSICAL AND MENTAL HEALTH – VISA APPLICANT’S HUSBAND AND SCHOOL-AGED CHILDREN IN HOME COUNTRY – HUSBAND’S BUSINESS AND SAVINGS, AND REVIEW APPLICANT’S FINANCIAL SUPPORT AND OFFER OF BOND – REVIEW APPLICANT’S INCONSISTENT EVIDENCE ABOUT RELATIVES IN AUSTRALIA, TRAVEL TO HOME COUNTRY AND INFORMATION GIVEN TO MEDICAL PROFESSIONALS – DECISION UNDER REVIEW AFFIRMED

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211(a)

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 August 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review applicant is the visa applicant’s sister, and she is an Australian citizen.[1]

   [1] Her passport biopage was provided.

2. The visa applicant applied for the visa on 20 June 2022. 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 Tourist stream.

3. 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.

   The Department

4. According to the application form and supporting documents:

   ·     The visa applicant is 44-year-old married woman who was born and lives in Lahore, Punjab. She would like to visit her sister who is unwell. The proposed period of stay is from 14 June 2022–6 September 2022 with additional entry from 1 December 2022 to 15 January 2023.

   ·     Her non-accompanying members of the family unit are as follows:

   o   Muhammad Khalid, spouse

   o   Ojala Khalid, 17-year-old daughter

   o   Muhammad Zaid, 14-year-old son

   ·     Her contacts in Australia are her sister and her brother-in-law, Abdul Hamid Ajiz (the review applicant’s husband). He is a migration agent who represented the visa applicant before the Department, and the review applicant in the review.

   ·     Funding details: The visa applicant stated: ‘My sister and brother-in-law are sponsoring my visit and will be responsible for local travel, accommodation and meals stay. My husband is also supporting my visit and PKR’s 1,541,520 are available at my disposal in our bank account.’

   ·     She has no history of travelling abroad (as set out in her letter). A previous visitor visa application was also refused.

5. The review applicant was born in 1972 and is married. She was first granted a UF-309 (Partner Provisional) visa on 23 December 2011, she arrived in Australia on 20 January 2012, and was granted a BC-100 (Partner) visa on 6 August 2013.

6. The visa applicant’s husband provided an affidavit/undertaking dated 28 May 2022:

   ·     He confirms that his wife is applying for a visitor visa to see her sister who is suffering from severe leg and back pain and recovering from recent surgical procedures.

   ·     He will be providing financial support.

   ·     He and the visa applicant have a joint bank account with sufficient funds which will be available to the visa applicant for any required expenses.

   ·     He will ensure that the visa applicant will return within the validity of her visa period whilst he will remain with their 2 children in Pakistan.

7. The visa applicant’s affidavit/undertaking dated 28 May 2022 provides the same information as stated above by her husband.

8. Other documents relating to the visa applicant include:

   ·     Bank AL Habib Limited joint bank account statement in the names of the visa applicant and her husband for the period 1 January 2022 to 7 June 2022, with a certificate of balance (7 June 2022) providing that the balance is PKR 1,541,520.90.

   ·     Pakistan National ID card for the visa applicant issued 19 January 2022 (expiry 19 January 2032).

   ·     Family registration certificate for the visa applicant’s husband issued 9 January 2022 showing the details of the visa applicant and their children.

   ·     Family registration certificate for Muhammad Nadeem Babar (the applicants’ brother) issued 17 October 2021 showing that the applicants are siblings along with 3 brothers: Muhammad Nadeem Babar, Muhammad Zahir Uddin Babar, Muhammad Zamir Ud Din Babar, and their father is Nazir Ahmad Babar.

   ·     Certificate of polio vaccination dated 24 January 2022.

9. A letter from the agent dated 19 June 2022 stating that he invites his sister-in-law to Australia, noting his wife is sick with sinus, lower back L4, L5 and depression, and that she has not seen her family since the COVID-19 pandemic, and she feels lonely and depressed. They will be responsible for all the costs and are prepared to offer a bond. He believes that her sister’s visit will help his wife, and they will ensure she abides by the conditions of her visa.

10. A letter from Dr Marina William of NAS Advanced Medical Centre dated 25 May 2022 outlined the review applicant’s medical history, summarised as follows:

    ·     She has recently undergone surgery on 10 May 2022 and requires assistance with her ADLs and IADLs. This is exacerbated by lower back pain that is being managed by orthopaedics and physio but is currently ongoing and affecting her ability to get out of bed, go to the toilet, dress/undress and go up and down her stairs at home.

    ·     She has been under multiple treatment and management modalities for her chronic illness.

    ·     She is currently looked after by her husband but his leave has run out and he is going back to work leaving the visa applicant alone at home. His health issues have also been exacerbated due to physically caring for his wife which he can no longer do due to worsening arthritis.

    ·     Dr William believes that this will be detrimental for the review applicant’s deteriorating mental health and will exacerbate her pre-existing depression and anxiety which have been stable at this stage.

    ·     Dr William believes that the review applicant would benefit immensely from having her sister’s support both for her physical condition and mental health issues.

11. The review applicant also provided a statutory declaration dated 16 June 2022:

    ·     She is suffering from “depression, sinus surgery and lower back pain”.

    ·     She will be responsible for all the visa applicant’s expenses such as local travel, accommodation and meals in Australia.

    ·     She will ensure that the visa applicant abides by the conditions of the visa.

    ·     She is prepared to pay a bond for the visa applicant’s visa.

    ·     She will ensure that the visa applicant returns to her country within the validity of the visa period.

    ·     She requests that the visa applicant’s visa be granted so that the visa applicant can visit her and assist in her recovery from sickness.

    Delegate refusal

12. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that a genuine visit only was intended. The delegate provided reasons including:

    ·     The delegate noted that the applicant is unemployed and is therefore not receiving a regular income. The delegate considered the applicant’s economic situation and found that their circumstances demonstrated that they had limited personal and financial incentives to return to their home country at the end of their proposed stay.

    ·     The delegate acknowledged that the applicant had provided some financial documents, and whilst they considered this evidence, ultimately attached less weight as the funds were deemed to be insufficient and could be withdrawn anytime. The delegate concluded that this evidence was not of itself sufficient evidence of incentive to return to their home country. It was also noted that although the review applicant indicated that she will provide financial support, there is only a statutory declaration and no evidence of funds provided from her.

    ·     The delegate further remarked that the applicant did not provide any evidence of their international travel to countries which share a comparable set of immigration laws or framework as is established in Australia, and therefore provided little indication of their future compliance with visa conditions.

    · The delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of the visa, and therefore find that she did not satisfy cl 600.211 of the Migration Regulations 1994.

13. There are no non-disclosure certificates on the Department File.

    The Tribunal

14. The review applicant provided an application for review, passport identification page, and a copy of the notification and Department Decision Record.

15. On 12 April 2023, the review applicant was invited to attend a hearing on 27 April 2023. She was requested to provide any documents she sought to rely upon, and she was invited to provide information. Her responses to each question (provided 20 April 2023) are set out in italics:

    The Tribunal will be considering in this review whether the visa applicant meets cl.600.211 of the Migration Regulations 1994 which requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    1.     Full name and date of birth, dates of arrival of any other of your close relatives

    (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephew)
    who have come to or visited Australia within the past 10 years.
    No one came to Australia within the past 10 years.

    2. Full name and date of birth, dates of arrival / visit of any other close relatives
    you have sponsored or invited to visit Australia within the past 10 years.
    No one

    3. Updated information about the visa applicant’s employment and financial
    situation in their home country.
    Visa applicant is housewife and does not work. Please see attached bank statement…

    4. Any other information relevant to the visa applicant’s activities or commitments
    or relationships in their home country that would encourage them to return at
    the end of a visit.

    My husband Muhammad Khalid works as a Sales Manager at Business2Business
    Solutions. I have 2 children, Zaid Khalid and Ujala Khalid, who are currently studying in
    Pakistan. Zaid Khalid currently studies in year 9 and Ujala Khalid is in year 11. Majority
    of my family including my brothers, Nadeem Babar, Muhammad Zahir ud din Babar, are
    in Pakistan. I have my kids and husband in Pakistan, who have their earnings and
    studies set there, and because of these ties I will be returning back to Pakistan. I assure
    Administrative Appeals Tribunal that I will abide by the conditions of visitor’s visa
    (subclass 600). My sister Asma Shahzadi is prepared to lodge surety bond for my

    visitor’s visa (subclass 600).

    5. Any information relating to any previous visa held by, or visa application made by, the visa applicant.

    I previously applied for visa subclass 600 along with my two children. We were coming in

    their school holidays but unfortunately my visa application for subclass 600 was refused.
    Than I applied again for visa subclass 600 without my children which was refused on 25
    August 2022 (Application ID 1070653650), which was refused and it is before the tribunal now.

    6. Any information concerning any other travel by the visa applicant outside their present country of residence.

    None

16. With the agent’s letter of 20 April 2023 the review applicant also provided a bank statement in the joint names of the applicant and her husband showing the movement in and out of funds during the period 2022–April 2023 as well as a bank certificate for that account; and 2 letters of support from doctors:

    ·     Letter from Dr Anthony Johnson, respiratory and sleep physician dated 29 March 2023 which advised that the review applicant has severe, chronic asthma and that Dr Johnson would support her sister’s application to care for her.

    ·     Letter from Dr Marina William of NAS Advanced Medical Centre dated 17 April 2023, which contains almost identical information to the letter of 25 May 2022 with the following additions: she has gone in for revision and requires regular reviews for sinus cleaning by her ENT specialist; recently she has been hospitalised with ICU stay due to renal failure and respiratory compromise secondary to anaphylaxis which she is being investigated for; she was recently diagnosed with COPD and is on maximum treatment and her coeliac disease is not under control and she is struggling to consume nutritious meals that are coeliac friendly. She will benefit immensely from having her sister’s support both for her physical condition and mental health issues.

17. Previous assurances were repeated in the letter relating to the offer of a bond, providing financial support to the visa applicant and ensuring that the visa applicant would comply with conditions.

18. The review applicant appeared before the Tribunal on 27 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu, Punjabi and English languages.

19. Upon entering the hearing the Tribunal received further documents. These included a file report dated 19 April 2023 from the review applicant’s psychologist, Saima Khan. Ms Khan notes that the review applicant attended appointments from 20 September 2022 until 19 April 2023[2] under a GP Mental Health Plan, and that the review applicant is currently presenting with symptoms of major depressive disorder and generalised anxiety disorder. It discusses her personal circumstances and indicates that she has suffered distressing events, most recently not falling pregnant including through IVF. It is stated that her husband’s adult children from his first marriage do not accept her, and she feels since she has arrived in Australia (after her marriage to her current husband/agent) in 2011, she has felt lonely with limited social networks.

    [2] An incorrect year, 21 March 2022 (should have been 2023) was in the letter.

20. It is also stated:

    Ms Shahzadi reported prior to the outbreak of COVID -19 pandemic she would visit her family overseas regularly. However over the past few years she has not been able to visit due to a decline in her health and the COVID-19 pandemic outbreak. Hence her symptoms of depression has become worse. 

    … Ms Shahzadi has reported she does not have any other family residing in Australia and she does not have any close friends who she can ask for assistance from. Ms Shahzadi would like her sister to visit her, not only to assist with caring for her, but also to assist with reducing her loneliness.

21. The psychologist concludes that a visit from her sister would be beneficial.

22. The Tribunal was also provided with bank statements for the review applicant’s husband’s business showing a balance of $3000 in April 2023, another account with almost $2000, evidence of property ownership by the review applicant’s husband, and evidence of the review applicant’s salary as a purchasing officer (paid $150–$200 per week): the review applicant told the Tribunal that she works 8 hours per week purchasing spices for restaurants.

23. Evidence from the hearing is discussed further below.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.

26. In the present case, the visa applicant seeks the visa for the purposes of a family visit, including with her Australian citizen sister. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

27. 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)). It was confirmed at hearing that the visa applicant has not previously visited Australia.

28. 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 600.611(3):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

29. Conditions 8501 – adequate arrangements for health insurance, 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia and 8558 – cannot stay more than 12 months in any 18-month period may also be imposed.

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

31. The Tribunal considered the oral evidence of the review applicant (supported by that of the visa applicant) which was consistent with the written evidence: that the visa applicant has an incentive to return home (her family members: her son is in Year 9 and daughter in Year 11. Her husband is a sales manager in a computer company), there will be sufficient funds to support a visit, the visa applicant would not seek to work or study in Australia and that she would comply with any other conditions imposed; she just wants to care for her sister in Australia.

32. The Tribunal has sympathy for the review applicant and her physical and mental health conditions and it accepts the diagnoses provided by medical professionals. However, the Tribunal does not place weight on the evidence and assertions made by either the review applicant or visa applicant, nor the submissions of the agent, when assessing whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, nor to comply with the conditions (if imposed) that she would not seek another visa or would seek to stay longer in Australia. In this regard, the Tribunal notes as follows:

    Inconsistent and changing evidence about relatives in Australia

33. When the application was lodged in mid-2022, the agent had indicated in his letter that the review applicant had not seen her family for a long time which was contributing to her depression. Dr William also stated at that time that a visit from her sister would have a very good effect on both her physical and mental condition. 

34. The Tribunal noted the information provided prior to the hearing on 20 April 2023 (including that no close relatives have ever applied or come to Australia in the last 10 years), however when the Tribunal asked the review applicant about her relatives, the responses were different. The review applicant said that she has 3 brothers and 1 sister. When asked if they had ever applied to come to Australia, her evidence was as follows:

    ·     Her brother Mohammad Zamir Uddin Babar is here as his wife Ayesha Ahmed has a skilled visa and they arrived in March 2023 with their 2 children (her nieces/nephews).

    ·     Her brother Mohammad Zahir Uddin Babar has a son Harif Hasam Uddin Babar, who arrived in Australia about 5–6 months ago on a student visa, aged about 20 years.  

    ·     Her aunt and uncle came to Australia in about 2017/2018 and their 2 daughters are here following their marriages; one of them has been here 15 or 16 years and the other one 5–6 years.

1. The Tribunal put to her that it had significant concerns that this was inconsistent with what she had represented to the Tribunal on 20 April 2023 in providing responses to the Tribunal’s request for information; the response to information stated that no relatives had come to Australia in the last 10 years, but it appears that she has relatives living in Australia. The Tribunal gave her a number of opportunities to explain why she had made such representations:

   ·     He initially said she said that she has not made these representations for any specific reason, there is no reason, it is her fault.

   ·     At one stage she said that she understood the question to be asking whether she had sponsored anyone. The Tribunal put to her that the request for information (question 1) does not say this.

   ·     At another stage she said that when she prepared this document she got confused and she thought that this information was required for the time of lodgement. The Tribunal put to her that the request for information does not ask for a response at the time of lodgement (and her response does not suggest that she was referring to past tense). The Tribunal asked how the document was completed and she said that it was done in her presence by her migration agent. The Tribunal asked whether her agent knew about her relatives’ presence in Australia and she said yes.

   ·     At another time she said she thought the questions asked just about blood relatives and about those who travelled on visitor visas. Again, the Tribunal put to her that this is not what the request for information (question 1) said.

2. The visa applicant confirmed that her relatives live in Australia including the review applicant, her brother and his wife and children, and one of her nephews. She initially said also her aunt lives there, but then the agent interrupted and said the aunt didn’t live there and the visa applicant agreed and said that the aunt doesn’t live there but her children do. 

3. The agent said that it was all his fault, he thought the question was asking for time of application information. The Tribunal does not accept this submission as the request for information does not refer to time of application, the response does not suggest it is responding at time of application, the relevant clause refers to a current (not past) intention,  and the review applicant herself said this was her fault.

   The visa applicant’s visit to Pakistan in November 2022

4. At hearing the Tribunal asked about the visa applicant’s ability to go back to Pakistan to see her relatives and in her evidence she said that she had gone back to Pakistan with her husband late last year. She then asserted that she got sick on the plane and suggested that she may not be able to travel again.

5. The Tribunal had concerns that this visit was not revealed to the medical professionals, as discussed below.

   The recommendations of medical professionals based on incorrect evidence

6. The Tribunal expressed concern that the review applicant had provided a letter from her psychologist dated 19 April 2023 which, given her evidence above, indicated that she had not been forthcoming with her psychologist. Although she told the Tribunal that she returned home to see her family in Pakistan in November 2022, she had since had 3 sessions with her psychologist who wrote in her report that the review applicant had not been able to visit her family in Pakistan due to COVID-19 and that this had caused her symptoms of depression to become worse. Given she had gone to visit her family in Pakistan, this could not be true. 

7. Further, the psychologist’s letter stated:

   Ms Shahzadi has reported she does not have any other family residing in Australia and she does not have any close friends who she can aske for assistance from. Ms Shahzadi would like her sister to visit her, not only to assist with caring for her, but also to assist with reducing her loneliness.

8. Given she told the Tribunal that she does have relatives in Australia, including her brother and her aunt/uncle and /or their daughters, this indicates that what the review applicant reported to her psychologist was simply not true.

9. Further, the updated letter from Dr William dated 17 April 2023 makes no mention at all that the applicant has either travelled overseas in November 2022 nor that she has relatives in Australia.

10. Concerning the psychologist’s letter, the review applicant initially said that she had not seen her for a while; the Tribunal does not accept this given that the letter is dated 19 April 2023 and it states she saw her that very day, as well as in February and March 2023.  The Tribunal noted that none of the recent letters from professionals (Dr William and the psychologist) indicate that she has recently spent time with her sister in Pakistan, nor that she does have relatives in Australia.

11. The agent submitted this was all an honest mistake. The Tribunal is not prepared to accept this submission.

12. The Tribunal considers that there has been a deliberate representation throughout the application that the review applicant is alone (save for her husband) and vulnerable and sick in Australia and has no one and has not seen her family. However, she travelled to visit her family back in Pakistan a few months ago, and she has relatives in Australia. The Tribunal is not prepared to accept her assertion that she does not receive support from relatives in Australia. The Tribunal has significant concerns with the review applicant’s credibility.

    Proposed length of visit compared to the evidence

13. Further, the review applicant said that the siblings did not have a mother growing up and so this is why the visa applicant would only propose coming for a very short period of time. Previously she had applied to come with her children, but because that was refused and she would be coming alone, she can’t leave them by themselves over there. The Tribunal put to her that this was inconsistent with the application form where she has stated that she wanted to come for 3 month and 6 weeks; the Tribunal put to her that this is a long time. She said that this was what was proposed previously when the children were coming with her; the Tribunal put to her that this was the proposal in the current visa application when the children were not coming with her.

    In summary

14. The Tribunal has considered that the review applicant is prepared to offer a bond and that the visa applicant’s husband and children (and other family members) remaining in Pakistan are an incentive for her to return, however this does not overcome its concerns. It is also prepared to accept that the visa applicant would obtain insurance; however due to the credibility concerns arising from the above evidence, it is not prepared to accept that, if other conditions were imposed such as no stay beyond 18 months or no further substantive visa application, that she would comply with these conditions.  However, even if such conditions were not imposed, the Tribunal is not satisfied that the visa applicant intends a genuine temporary visit as asserted by the review applicant (and the visa applicant).

15. 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

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

    Christine Cody
    Member