1509490 (Migration)

[2015] AATA 3591

1509490 (Migration) [2015] AATA 3591 (9 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dany Alchammas

VISA APPLICANT:  Mrs Mouna Yacoub

CASE NUMBER:  1509490

DIBP REFERENCE(S):  BCC2015/1364302

MEMBER:Suzanne Carlton

DATE:9 November 2015

PLACE OF DECISION:  Adelaide

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 09 November 2015 at 3:40pm

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 26 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 for the visa on 12 May 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 the delegate was not satisfied that the applicant only intended to visit Australia.

5. The review applicant appeared before the Tribunal on 9 November 2015 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting the oldest of her two sons here in Australia, the review applicant.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. 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)).

10. As the visa applicant has never been to Australia, this factor does not apply.  I do note that in 2006, the visa applicant travelled to Europe with a friend and appears to have complied with the conditions of her Schengen visa. 

11. The review applicant entered Australia on a skilled nominated visa in 2013.  He appears to be in compliance with all relevant visa conditions.

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 (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 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. The visa applicant is a 65-year old Syrian woman. She lost her husband to an illness in 1996.  She and her husband had two sons, one of whom she lives with and the other is the review applicant.  Neither son is married.

14. The visa applicant, her son and her siblings (together with their families) all live in the Tartous area of Syria.  The Tribunal conducted its own research and found that the Tartous area is relatively calm and safe.  There is a Russian military base in nearby Latakia, which has been there for many years.  The region is strongly supportive of the Syrian president. 

15. Despite the development of the conflict in Syria, Tartous has managed to maintain its pro-government stronghold and to remain free from violence or attack.

16. The visa applicant does not work and involves herself with her garden and socialising with friends and family. Her younger son runs both a farm and a building supply business on the land adjacent to their home.  The visa applicant herself recently successfully underwent a hip replacement surgery in a local hospital.

17. The Tribunal accepts the evidence that the applicant does not speak English and thus would neither seek to work or to engage in study whilst in Australia.  The Tribunal is also satisfied that the applicant is aware of condition 8503 – that she cannot apply for another visa, other than a protection visa, whilst onshore.

18. Condition 8531 and the risk of the applicant applying for a protection visa is what is at issue before the Tribunal. 

19. The review applicant presented to the Tribunal as a credible witness of high integrity.  The Tribunal accepts his explanation that he has researched the alternative pathways to bring his mother here as a resident if that is what she wishes to do in the future.  He has given evidence that there is no indication from her that she would like to live in Australia.  Rather, relocating at her age away from her home and the vast majority of her family does not appeal to her. Should she change her mind, Mr Alchammas has indicated that he would apply for a contributory parent visa to bring her out.

20. To that end, Mr Alchammas raised the concern that should his mother not comply with the terms of her visitor visa, it would likely prevent him from sponsoring her on a contributory parent visa at some point in the future.  Additionally, should he choose to sponsor a partner from overseas at some point in the future, similar problems would arise.

21. The Tribunal put to Mr Alchammas that whilst Tartous is currently safe, that could change due to a number of factors, which were discussed.  Mr Alchammas agreed with this proposition but did not consider that there were any changes to the area in the foreseeable future that would mean that it would no longer be safe for his mother to return.

22. Finally, he said that to travel into or out of Tartous, she could fly from Latakia or drive to Beirut and leave from there.  Areas of violence such as Homs and Damascus could thus be avoided.

23. While the Tribunal accepts that a return to Syria would be an unlikely proposition for many visitor visa holders to Australia, the Tribunal has relied on the demonstrably good reputation and veracity of the review applicant and his undertakings that his mother will comply with all visa conditions.

24. To the extent that there is any risk that she will not so comply, I consider that this risk can be addressed by the imposition of a bond.

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

26. 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.

    Suzanne Carlton
    Member