1601877 (Migration)
[2016] AATA 4765
•28 November 2016
1601877 (Migration) [2016] AATA 4765 (28 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1601877
MEMBER:Louise Nicholls
DATE:28 November 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Statement made on 28 November 2016 at 6:14pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The visa applicant, [named], is a citizen of the Palestinian Authority and is [age] years of age.
She is seeking a tourist visa to visit her brother, [named] who is an Australian citizen and the review applicant. The visa applicant applied for the visa [in] November 2015. She provided;
·A copy of a wedding venue receipt for a wedding planned for [a date in] May 2016 in Sydney.
·A statutory declaration made by the review applicant [in] November 2015.
·A certificate from [an agency] regarding the visa applicant’s [welfare account] balance. ([October] 2015)
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was concerned that the unstable security, political and economic conditions in Gaza would act as a strong disincentive for the applicant to return to Gaza at the end of the proposed visit. The delegate also noted that the visa applicant had previously applied to change her status when she last visited Australia.
This is an application for review of a decision made by a delegate of the Minister for Immigration [in] December 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The review applicant appeared before the Tribunal on 28 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s daughter, [named], and from the visa applicant by conference telephone from Gaza. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant, visa applicant and [her daughter] gave evidence about their personal histories, the purpose of the proposed visit, the visa applicant’s and family’s migration history and the current security and humanitarian situation in Gaza.
The review applicant was represented in relation to the review by his registered migration agent. She did not attend the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
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 Tourist stream.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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.
Background
The visa applicant is [age] years of age and lives in Gaza in the Palestinian Authority. She is a Christian Palestinian as are other members of the family. She is a retired [occupation] and her husband passed away about 20 years ago. She lives in Gaza City in an apartment block in which her [child] owns one apartment and she owns a neighbouring apartment.
She has [number] adult children living in Gaza; [number and genders specified]. She also has [number] adult [children] living in Australia. She also has [specified siblings] living in Australia.
The review applicant is [age] years of age and he is an Australian citizen. He is married with two adult [children]. He works at [his employer] and his wife is an [occupation]. He and his wife own a 4 bedroom home in Sydney. The review applicant has travelled outside Australia many times but has not visited his sister in Gaza. He first came to Australia about 15 years ago.
Purpose and Duration
In the present case, the visa applicant seeks the visa for the purposes of visiting her brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222. She originally hoped to attend [a family] wedding which was held in May 2016 but now seeks to visit for Christmas 2016.
The review applicant gave evidence that the visa applicant proposes a visit of about one month and she would stay at his home in Sydney during the visit. She stated that she has sufficient funds for the visit and would also be assisted by her [children] and her siblings.
Compliance with conditions of last substantive visa
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)).
The visa applicant obtained a [temporary] visa [in] June 1997. She arrived in Australia [in] November 1997 and obtained a bridging visa [in] January 1998. She departed Australia [in] September 1999. The review applicant and visa applicant gave evidence that she was highly distressed after the death of her husband and applied to remain in Australia. The review applicant also stated that Gaza was in a war situation at the time and it was not safe for her to return.
The visa applicant stated that she had stayed in Australia for about 2 years because she had just lost her husband. She also married her [child] off during the period of her stay in Australia. She could not remember the type of visa she had applied for during the visit but stated she did not appeal the decision to refuse that visa.
Travel and migration history.
The review applicant gave evidence he had travelled overseas many times but has not visited Gaza. The visa applicant stated she enjoys travelling and has recently travelled to [specified countries].
The review applicant and [the visa applicant’s daughter] gave evidence that they had not sponsored any other visitors to Australia.
Intention to comply with conditions and other relevant matters
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.
The Tribunal has also considered all other relevant matters (cl.600.211(c)).
The visa applicant gave evidence, which the Tribunal accepts, that she worked as [two occupations] for [her employer] for over 40 years before her retirement. When she retired she was given a [welfare] benefit which she has used to buy property and support her retirement. She lives in an apartment block owned by her [child] who is [an occupation].
She stated she is able to support herself and has a good income and enjoys comfortable living standards.
The Tribunal accepts that the visa applicant is retired with a large family and does not intend to work or study in Australia.
Situation in Gaza
The review applicant and the visa applicant claimed that the situation in Gaza was relatively stable at the moment. The visa applicant stated that she is permitted to travel to Israel twice a year and that she visits Jerusalem and other holy sites for religious festivals. However, as discussed with the review applicant and visa applicant at hearing, the country information suggests that citizens of Gaza face many hardships which significantly affect their lifestyle and security. When this was put to her, the visa applicant stated that the residents of Gaza were used to these restrictions and manage to conduct their lives in spite of these problems.
The Cairo Institute for Human Rights Studies (CIHRS) reports
Meanwhile, the Gaza Strip remained under siege for the eighth year in a row, completely cut off from all directions. The siege has catastrophic humanitarian implications and forestalled the possibility of reconstruction after the attack on Gaza in 2014. Some urban centers in the West Bank, especially Ramallah, the de facto capital of the Palestinian Authority (PA), continue to maintain a sort of ersatz economy thanks to funds from international donors, which finance an important part of public services, and the network of civil society organizations. Amid this, the most vulnerable communities in Palestine, especially in Area and in cities and villages around the separation barrier and settlements, continue to face daily provocations and insults from settlers and occupation soldiers, including restrictions on movement and threats to life and safety, which gravely infringe basic human rights.
….In the Gaza Strip, Palestinians have been sapped by the ongoing siege, the lack of any reconstruction more than a year after the attack, and the failure to meet their fundamental needs like electricity and clean water.[1]
[1] "Human Rights under Siege: Human Rights in the Arab Region Annual Report 2016", Cairo Institute for Human Rights Studies (CIHRS), 10 November 2016, CIS38A80122629
The UK Home Office also notes in its latest report on the security situation in the Occupied Palestinian Territories noted that
2.1.12 The seven-year blockade by Israel, coupled with the access-restricted areas along its border forces the Palestinian people living in Gaza to live in a perpetual state of humanitarian crisis. The humanitarian situation in Gaza deteriorated significantly during 2014. Israel’s ‘Protective Edge’ military offensive in the summer of 2014, which resulted in the deaths of more than 2,000 inhabitants of Gaza, of which over 1,400 were civilians, damaged or destroyed thousands of civilian homes, as well as severing power generation and water supplies, and damaging other civil infrastructure (see Humanitarian Situation in the Gaza Strip).
….2.1.25 Israel limits the passage of Palestinians through the Erez crossing into Israel to “exceptional humanitarian cases” and is unpredictable. As a result, Palestinians in the Gaza Strip are unable to go to the West Bank, including East Jerusalem, or further afield. Heavy reliance is therefore placed on the Rafah crossing between Gaza and Egypt which is subject to frequent closures. In 2014, Rafah was closed for 207 days or 57% of the year.[2]
[2] Country Information and Guidance; Occupied Palestinian Terrritories (OPTS) Security and Humanitarian Situation June 2015
The UN Secretary General reported in March 2015 that:
‘Humanitarian conditions in Gaza continue to be compounded by the limited availability and accessibility of utilities, including potable water and electricity. Before the 2014 escalation, some 90% of Gaza’s water from its coastal aquifer was considered undrinkable without treatment. Most areas experienced power cuts of 12 hours a day and they increased to 18 hours daily after the conflict and the attack by Israel on the Gaza power station. Economic recovery remains stagnant, resulting in high unemployment, food insecurity and reliance on food aid, with 830,000 people receiving food aid from UNRWA. That has consequences for the health of the Gazan population — even prior to the recent escalation, 35.8% of pregnant women and 33.7% of infants were suffering from anaemia.
At least 1,000 persons injured in the 2014 war will suffer permanent disability. In addition to their particular health and psychological needs, those people remain in need of specific equipment that is unavailable in Gaza owing to the continued blockade. Children constitute 30% of those suffering from a disability as a result of injuries sustained during the war. Over 1,500 children have reportedly become orphaned, with thousands of others traumatized by the latest violence.
The health system is in disarray. According to the World Health Organisation (WHO), some 17 hospitals and 56 public health centres were either destroyed or sustained damage during the hostilities. Damage inflicted on health institutions, the prevailing shortage in essential drugs and the lack of spare parts for certain medical equipment have reduced the availability and accessibility of health services. For example, outpatient services decreased by 14.75%, intensive care unit capacity decreased by 21.42% and the availability of basic laboratories was reduced by 12.74%.[3]
[3] 55 UN Secretary General, Human rights situation in the Occupied Palestinian Territory, including East Jerusalem*, 5 March 2015 paragraphs 38-41
The Tribunal does not accept that the situation in Gaza is stable and does not accept that the restrictions and privations are easily managed. Whilst there is a ceasefire currently in place, the Gaza Strip is effectively under siege. This has impacts on the economy, unemployment, food security, the provision of services such as electricity, water and emergency responses. The health system is in disarray and some 17 hospitals and 56 public health centres were damaged in the 2014 hostilities. Citizens also do not enjoy freedom of movement as there are only 3 border crossings[4]. The visa applicant referred to being able to travel to Israel twice a year, however; the country information relating to freedom of movement also indicates that restrictions are arbitrary and can take applied at any time.
Is the Tribunal satisfied that the applicant genuinely intends to stay temporarily in Australia for the stated purpose?
[4] Country Information and Guidance; Occupied Palestinian Terrritories (OPTS) Security and Humanitarian Situation June 2015 (ibid.) pp. 36-41
The Tribunal has considered the evidence and material provided to support the application. On the one hand the visa applicant has given evidence she only intends to visit Australia for one month and then intends to return to her home and her other family members in Gaza. The Tribunal has taken account of the visa applicant’s family ties in Gaza which include her [children] and her grandchildren. It also notes that she owns an apartment in an apartment block where her [child] also lives with [family]. Her [child] is [an occupation] and the evidence suggests that, in relative terms, the family are financially comfortable and the visa applicant has sufficient financial resources to support herself in Gaza and during her proposed visit to Australia.
However, the visa applicant also has strong family ties in Australia, including her [number of children] and her grandchildren as well as all her siblings. She is a widow and the Tribunal considers that her Australian family ties would also act as a strong incentive for her to remain in Australia after the end of a permitted stay.
The Tribunal has also taken account of the visa applicant’s attempt to apply for a permanent visa when she visited Australia in 1997. It notes that this attempt took place some 19 years ago at the time she had just lost her husband and thus should not necessarily outweigh other factors but it is a factor to be taken into account. It indicates that the visa applicant had an intention to remain in Australia in 1997 and 1998 and that she may now also decide it is in her best interests to remain in Australia given the poor humanitarian and security situation in Gaza.
The Tribunal considers that the humanitarian situation in Gaza is dire and that this will, together with the other matters as set out above, act as a strong incentive for her to remain in Australia after the period of the proposed visit.
Further the Tribunal notes that the visa applicant has applied for a tourist visa and not for a sponsored visit visa and thus there is no provision for the lodgement of a security bond or for sponsorship obligations to be taken into account.
Overall, whilst it is entirely understandable that the visa applicant wishes to visit her family members, the Tribunal considers that the circumstances which would encourage the visa applicant to return to Gaza are far outweighed by factors which would encourage her to remain in Australia.
Conclusion
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
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Louise Nicholls
Senior Member 28 November 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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