1508719 (Migration)

[2015] AATA 3851

1508719 (Migration) [2015] AATA 3851 (6 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nadia J SABET

VISA APPLICANT:  Mr Salah Jumaah Sabit AL-BEHADILI

CASE NUMBER:  1508719

DIBP REFERENCE(S):  BCC2015/1616589

MEMBER:Linda Symons

DATE:6 December 2015

PLACE OF DECISION:  Sydney

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 06 December 2015 at 3:20pm

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 17 June 2015 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 to the Department of Immigration and Border Control (the Department) for the visa on 4 June 2015. 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 she was not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  

5. The review applicant appeared before the Tribunal on 27 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 his sister and her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).

11. The records of the Department indicate that the visa applicant has previously visited Australia as the holder of a Visitor visa. He arrived in Australia on 25 October 2012 and departed on 18 November 2012. There is no evidence before the Tribunal to indicate that he did not comply with the conditions of that visa.

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

13. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for the visa applicant’s visit to Australia. The review applicant gave evidence that the visa applicant will stay with her while he is in Australia. She stated that he is financially well off and can pay for his travel to Australia and his expenses in Australia. She stated that he own a house, two blocks of land, savings and a company that is worth a lot of money. She stated that he did not work or study on his last trip to Australia and has no intention of doing so if granted this visa.  

14. The visa applicant gave evidence that he owns and runs a money transfer company and also owns a clothing shop. He stated that he owns a house, two blocks of land, a money transfer company and savings. He stated that he has savings of 503 million dinar in one bank account and US$763,000.00 in another bank account. He stated that he has no debts. He stated that he earns between US$18,000.00 to US$20,000.00 a month and can afford to pay for his travel to Australia and his expenses in Australia. He stated that his brother Khalid works for him and will look after his businesses while he is in Australia. He stated that he did not work or study on his last trip to Australia and has no intention of doing so if granted this visa.  

15. The review applicant has provided the Tribunal with copies of the visa applicant’s supporting documents together with English translations. These documents include a real estate Deed, a Company Registration Certificate and Bank Statements. The English translation of one of the Bank Statements indicates that on 4 November 2015 the sum of 60,000.00 dinar was withdrawn from the bank account but the bank balance increased. The Tribunal raised this as an issue during the hearing. Following the hearing, the Tribunal was provided with further copies of the Bank Statements including the untranslated documents which indicate that the mistake was made in the English translation of the document. 

16. During the hearing, the Tribunal discussed with the visa applicant the security situation in Iraq. He stated that the situation in Baghdad, where he lives, is alright. He stated that there are problems with Islamic State in Mosul and Ramadi which are far from Baghdad.

17. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length of his proposed stay in Australia. The review applicant gave evidence that the last time the visa applicant came to Australia he applied for a three months visa but only stayed for 20 days. She stated that he is likely to do the same this time as he needs to return to his work. The visa applicant gave evidence that he knows he can apply for a three months visa but is unable to stay longer than a month to a month and a half because of his work. When asked what his incentives were to return to Iraq, he responded that his work in Iraq is his incentive to return there.

18. The Tribunal has also considered other relevant matters. The review applicant gave evidence that her father passed away on 28 August 2015 and she wants the visa applicant to come to Australia and support her during this difficult time.

19. The review applicant also gave evidence that the visa applicant has travelled to other countries besides Australia including Turkey, China, the United Arab Emirates and Jordan. The visa applicant gave evidence that he has travelled to China, Turkey and Jordan many times to buy goods for his shop. 

20. The review applicant gave evidence that her occupation is home duties, her husband is unemployed and they are on Centrelink benefits. She stated that she cannot afford to lodge a security bond but that the visa applicant is able to do so. She stated that on the last occasion he visited Australia he deposited the sum of $15,000.00 as a security bond.

21. Having considered all of the evidence, the Tribunal places considerable weight on the visa applicant’s immigration history in Australia. The Department’s records indicate that he has visited Australia once before and left before his visa expired. The Tribunal accepts that the visa applicant’s financial commitments in Iraq will provide a strong incentive for him to return to Iraq. The Tribunal is of the view that the lodging of a security bond by the visa applicant will also provide an incentive for him to comply with the conditions of his visa.

22. For the above reasons the Tribunal is 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 met.

    DECISION

23. 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.

    Linda Symons
    Member