1511492 (Migration)

[2015] AATA 3920

1511492 (Migration) [2015] AATA 3920 (15 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Soleen Kaka

VISA APPLICANT:  Mrs Najeeba Al-Husseiny

CASE NUMBER:  1511492

DIBP REFERENCE(S):  BCC2015/2099060

MEMBER:Adrian Ho

DATE:15 December 2015

PLACE OF DECISION:  Melbourne

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 15 December 2015 at 5:39pm

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 4 August 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 22 July 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.

5. The review applicant and her husband appeared before the Tribunal on 15 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean and English languages.

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 her daughter. 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 mentioned by the delegate in the Department’s decision, and as is reflected in her movement records, the visa applicant was granted a visitor visa after having received a positive decision from the tribunal (differently constituted in matter 1005876) on review and made what on the evidence was a compliant visit to Australia of around 3 months to March 2011, before returning to Erbil in northern Iraq.

11. 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.

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

    Findings

13. The review applicant and her husband were frank and transparent witnesses at hearing and their evidence was consistent with written material on file and with the evidence summarised by the tribunal in its decision in matter 1005876.  The tribunal accepts they have given credible evidence.

14. The visa applicant had to appeal to the tribunal in order to be granted her previous visitor visa.  That time, as this time, the Department did not accept she intended a temporary visit.  On the evidence, she demonstrated a compliant visit nonetheless.

15. On the evidence, nothing significant has changed in her circumstances.

16. The major change since the compliant visit of 2011 has been the rise of the Islamic State, or IS, or ISIS, or Daesh.

17. Several incidents were discussed at hearing: including the 2014 capture of Mosul by ISIS and a car bomb attack at the US consulate in Erbil in April 2015.  The parties acknowledged that that car bomb attack was of concern to the security of Erbil and its residents.  The tribunal accepts that the attack likely targeted US interests and was not particularly near the family home.

18. The tribunal acknowledged to the parties that on present information, ISIS had no immediate prospects of capturing the Kurdish capital of Erbil, where the tribunal accepts the visa applicant lives with her husband and two sons.

19. The parties acknowledged that ISIS targets Shias and Christians, among others.

20. The tribunal accepts the oral evidence given that the Kurds and Christians of Iraqi Kurdistan are generally agreeable toward each other, and the major threat to the region’s residents emanates from extremist Sunni groups. 

21. The situation with regards to ISIS and the resistance to ISIS by domestic and international forces is hugely fluid.  It is not possible to anticipate what territory ISIS might gain or lose, and which populations might be affected, or over what period of time. 

22. The tribunal considers that to date Kurdish, US, and other forces have prevented ISIS encroachment into Iraqi Kurdistan and that is likely to continue insofar as the future may be predicted.

23. There is therefore a basis for the visa applicant to continue to expect and believe that the relatively stable life she has enjoyed in Erbil will continue.

24. She made her visit in 2010-2011 at a time when Iraq was already in upheaval, and she demonstrated a complaint visit. 

25. In the absence of country information clearly demonstrating that the relatively stable life enjoyed by residents of Erbil, including its Christian residents, will be threatened in the foreseeable future, the tribunal cannot identify any adverse change in the circumstances of the visa applicant and continues to give weight to the compliant visit that she made.

26. The review applicant’s willing to place a security of up to $20000 for the visa provides a modicum of additional confidence and the tribunal finds that the visa applicant intends to comply with visitor visa conditions, that she has demonstrated compliance on her last visit, and she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. She meets cl.600.211.

    DECISION

27. 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.

    Adrian Ho
    Member