1513689 (Migration)

[2016] AATA 3730

1513689 (Migration) [2016] AATA 3730 (8 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Youligin Oraha

VISA APPLICANT:  Ms Torez Mano Zaia Oraha

CASE NUMBER:  1513689

DIBP REFERENCE(S):  BCC2015/2371641

MEMBER:Rachel Homan

DATE:8 April 2016

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 08 April 2016 at 1:02pm

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 31 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 13 August 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. The delegate in this case refused to grant the visa on the basis that the visa applicant did not meet cl.600.211.

4. The review applicant appeared before the Tribunal on 8 April 2016 to give evidence and present arguments. The review applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

   Visa application

8. According to information provided in her visa application, the visa applicant is a 56-year-old Iraqi national, presently residing in Hay Sommer, Baghdad. The visa applicant stated that she had never been married or in a de facto relationship. The visa applicant identified a mother, also residing in Hay Sommer. The visa applicant’s father and two of her sisters reside in the United States. A third sister resides in Germany. The visa applicant has two sisters and one brother presently residing in Australia, including the review applicant. The visa applicant stated that she had been employed in the position of principal at a school for boys in Baghdad for 21 years. The visa applicant declared that she had never previously been in Australia and had not had an application for entry or stay in Australia refused or cancelled. The visa applicant indicated that she wished to visit Australia for a period of one month to visit her relatives in this country and to do some travel.

9. The visa applicant was sponsored for the visa by the review applicant, who is a 53-year-old Australian citizen.

10. Amongst the documents submitted with the visa application were copies of the visa applicant’s current and previous Iraqi passports. The visa applicant’s previous passport, which expired in June 2015, contains exit/entry stamps for recent travel to Lebanon, Turkey and the United States, as well as B1/B2 visas for the United States, issued in January 2011 May 2012 and January 2014.

11. Also submitted were a certified copy of an employment certificate in the English language, indicating that the visa applicant had been employed as Principal and English teacher at The Distinguished High School for Boys, Baghdad Iraq, from 1994 until the present time; an account summary for a bank account in the visa applicant’s name held by Bank of America, showing a closing balance of over US$130,000; and evidence of the visa applicant’s ownership of a condominium in San Diego, California.

    Review application

12. At the time she applied for review, the review applicant submitted to the Tribunal copy of the delegate’s decision record. No further evidence was submitted to the Tribunal prior to hearing.

13. On the day of the hearing, the review applicant submitted to the Tribunal a copy of a new United States B1/B2 visa issued to the visa applicant on 23 March 2016, valid for one year; and a booking confirmation for travel to Chicago via Istanbul on 14 April 2016, returning to Baghdad on 6 May 2016. At the Tribunal hearing, the review applicant told the Tribunal that the visa applicant was planning to travel to the United States the following week, together with her mother, to attend her niece’s engagement.

14. The review applicant provided an account of the visa applicant’s family composition, employment history, financial position and travel history that was consistent with the documents contained on the Department’s file. The review applicant told Tribunal that she had not seen the visa applicant for 23 years and was unable to travel to Iraq herself owing to family commitments in Australia. The review applicant told the Tribunal that the visa applicant wished to spend a short period of time in Australia to see her relatives here and would most likely be travelling in the June school holidays, if the visa were granted. The review applicant told the Tribunal that the visa applicant would stay with her and they had plans to visit other relatives in Queensland and Victoria during her stay.

15. The review applicant told the Tribunal that the visa applicant resides in an apartment in Baghdad owned by their mother. The visa applicant is unmarried and has primary responsibility for their mother’s care. The visa applicant has an aunt living next door and an uncle and cousins living in the same street.

16. The review applicant confirmed that the visa applicant had been employed as a teacher and school principal for many years. The visa applicant and her mother also own a private tutoring business at which the visa applicant teaches English after school hours. The review applicant confirmed that the visa applicant owns a condominium in San Diego and has savings there. The review applicant told Tribunal that their father resides in the condominium.

17. The review applicant told the Tribunal that the visa applicant regularly travels to the United States to spend time with her sisters and father. One of their sisters resides in Chicago and their other sister and father reside in San Diego. The review applicant told the Tribunal that the visa applicant had also travelled to Turkey and Lebanon to reunite with family members who were unwilling to travel to Iraq.

18. The Tribunal noted that all of the review applicant’s siblings and their father had left Iraq. The review applicant told Tribunal that most of her siblings had left Iraq in the 1990s or the early 2000s because they had married partners who resided overseas. The review applicant told the Tribunal that the visa applicant and her mother have a close extended family in Iraq, including the protection of an uncle who resides nearby. The Tribunal asked the review applicant why her mother and sister had chosen to remain in Iraq when everyone else had left. The review applicant responded that her mother and sister felt settled in Iraq, were part of a community and active members of the Catholic church. The family also owned property and a business which would be lost if the visa applicant and her mother left Iraq.

19. The Tribunal discussed with the review applicant country information contained in the DFAT Country Report for Iraq, dated February 2015[1], which indicates that conflict continues in central, western and northern Iraq. Since early 2013, sectarian violence has escalated in the central, northern and western provinces of Iraq. In 2014, 12,300 were killed and 23,000 were injured; the worst violence since 2006 – 07 when casualty rates of 3,000 to 3,500 per month were recorded.

    [1] CISEC96CF1160 Iraq - 13/02/2015

20. Violent crime has significantly increased since the beginning of 2013. Militia have used extortion and kidnapping to raise funds. Violence, including attacks and threats against cafes and alcohol stores in Baghdad, has also been prevalent in recent years. Such crimes have had either criminal or religious motivations, though often, militia groups have used religious arguments to justify criminal acts.

21. Iraq continues to struggle with the economic legacy of 30 years of war and sanctions. Growth is hampered by: political and security conditions; weak government and economic institutions; an underdeveloped private sector; unproductive industries; and outdated infrastructure. Corruption, political and sectarian patronage and nepotism affect many aspects of life, from securing employment to the granting of contracts.

22. The Tribunal explained to the review applicant that this information could suggest that the prevailing security and economic conditions in Iraq would discourage the visa applicant from returning home at the end of her permitted stay in Australia. The review applicant responded that the visa applicant and her mother felt relatively secure in Baghdad. They resided in a secure building which had several security guards. They also had drivers to take them to school and to other locations. The review applicant denied that her mother and sister had experienced any difficulties arising from their religion.

23. The review applicant told the Tribunal that the greatest incentive for the visa applicant to return to Baghdad was the presence of their mother there. The review applicant noted that the visa applicant would not be travelling with their mother to Australia and that their mother would be cared for by their aunt whilst the visa applicant was away. The review applicant noted that the visa applicant and her mother had travelled together on several occasions to the United States and always returned home. The review applicant also told the Tribunal that she was willing and able to pay a security or bond if one were requested.

24. The review applicant’s representative made brief oral submissions towards the end of the hearing noting that the visa applicant had had multiple opportunities to seek protection overseas including in the United States where she has property, savings and close relatives but had always returned to Iraq. The visa applicant was proposing to travel to the United States the following week with her mother and, if there had been any concerns for her safety, she could seek protection there. The visa applicant had always returned to Iraq because she had no need to seek protection.

    Findings

25. The Tribunal found the evidence given by the review applicant to be frank, open and credible. Her evidence in relation to the visa applicant’s circumstances and proposed visit was consistent with the documentary evidence before the Tribunal.

26. The visa applicant has not previously been granted an Australian visa nor has she made any application for an Australian visa prior to the present application. The Tribunal is unable, therefore, to draw any inference from the visa applicant’s Australian immigration history.

27. In considering whether the visa applicant intends to comply with the conditions which would be attached to a visitor visa if one is now granted to her, the Tribunal notes that there are a number of circumstances which may discourage the applicant from returning home at the end of her permitted stay, as required by condition 8531. In particular, the Tribunal has given careful consideration to the country information regarding the economic and security situation in Iraq at the present time. The review applicant acknowledged the general situation in Iraq, commenting that she and many of her relatives were unwilling to travel to there. The Tribunal accepts, however, the evidence that the visa applicant and her mother have access to appropriate security arrangements and have not experienced any personal difficulties, including any difficulties arising from their religion.

28. The Tribunal has placed significant weight on the evidence of the visa applicant’s recent and proposed travel to the United States. The Tribunal finds that the United States has living conditions which are comparable to those available to the visa applicant in Australia. The visa applicant’s ties to the United States are, in several respects, greater than her connections to Australia. Amongst other things, the visa applicant owns property and has savings in the United States. The visa applicant is at the time of this decision in possession of a valid visa to visit the United States and has booked a return flight for travel to the United States. The visa applicant has travelled to the United States on several occasions in the past five years including with her mother. The Tribunal is satisfied that were the visa applicant genuinely concerned for her security or safety in Iraq, she would have sought to extend her stay in the United States and sought protection there. The fact that the visa applicant has consistently returned to Iraq is a strong indication, in the Tribunal’s assessment, that the visa applicant intends to do the same following a visit to Australia.

29. The Tribunal is satisfied that the visa applicant has accommodation and employment, is financially secure and is a member of a close community, which includes her extended family and church, in Iraq. The Tribunal further finds that the presence of the visa applicant’s mother in Iraq constitutes a strong incentive for her to return home at the end of a visit to Australia given that her mother does not propose to travel to Australia at the same time.

30. Having considered all of the evidence and circumstances, the Tribunal is satisfied that the visa applicant intends to return to Iraq at the end of the proposed visit. There is nothing in the evidence before the Tribunal to indicate that the visa applicant would fail to comply with any of the other conditions which would be attached to a visitor visa if one is granted. As a consequence, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purposes of a family visit.

31. The Tribunal finds that the requirements of cl.600.211 are met.

    DECISION

32. 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.

    Rachel Homan
    Member