1614006 (Migration)

[2016] AATA 4826

1614006 (Migration) [2016] AATA 4826 (21 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Alaa Junidi

VISA APPLICANTS:  Mr Abdulrahman Junidi
Mrs Joumana Badran

CASE NUMBER:  1614006

DIBP REFERENCE(S):  BCC2016/2447646 and BCC2016/2447666

MEMBER:John Billings

DATE:21 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 21 December 2016 at 11:40am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 – cl.600.211 – Genuine temporary entrants – Family ties to Syria – Not affected by the war – Family support for new parents – Incentive to return outweighs incentive to remain – Land purchase

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 600.211

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 11 August 2016 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants, Mr Junidi and Ms Badran, are a married couple.  They are nationals of Syria.  They applied for the visas on 22 July 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas, on the basis that Mr Junidi and Ms Badran did not meet cl.600.211.  In particular, the delegate considered that Mr Junidi and Ms Badran had insufficient family and other ties to Syria for the delegate to be satisfied that they genuinely intend to stay temporarily in Australia.  The delegate noted that there was no evidence that they had travelled outside Syria before.  The delegate was concerned that the proposed duration of the visit was not consistent with the stated reasons for travel.  (The visa applications indicate the proposed length of stay to be “[u]p to 12 months”).  The delegate referred to country information about the war in Syria.  

5. Mr Alaa Junidi (Mr Junidi’s son) is the review applicant.  He is the 29 year-old son of Mr Junidi and Ms Badran.  He applied for review on 1 September 2016. 

6. Mr Junidi’s son appeared before the Tribunal on 28 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, Ms Annalise Ammoun and, by telephone, from Mr Junidi and Ms Badran.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7. Mr Junidi and Ms Badran are aged 59 and 53 years respectively.  They have four sons.  Their other three sons are in Syria.  Their ages are 31, 25 and 22.  None of them are married.  Mr Junidi has been a teacher but for many years has been a lawyer with his own practice.  He is approaching retirement.  Mr Junidi is currently managing 10 or so cases that are before the courts in Syria.  Ms Badran is a teacher and nowadays gives private lessons to school students on a casual basis.  Mr Junidi and Ms Badran own property in Homs which is not occupied now.  Mr Junidi used to have an office there.  For the past four years they have lived in Tartus.  Two years ago they bought property in Tartus.  Before the bought that property they rented accommodation in Tartus.  The two older of their sons in Syria are undertaking military service.  The youngest son is in the final year of a nursing course at university in Latakia.  When he is not attending the university he lives with the family in Tartus.  Mr Junidi’s elderly mother spends some time living with him and Ms Badran but she also spends time living with other family members. 

8. Mr Junidi’s son (the review applicant) came to Australia in 2009 holding a Student visa.  He was subsequently granted a temporary and later a permanent Partner visa.  This year Mr Junidi’s son was granted Australian citizenship.  He is employed as a cabinet maker.  His wife, Ms Ammoun, is aged 23 years.  She was born in Australia.  Her parents and siblings, who are younger than her, live here.  Ms Ammoun too has a number of relatives in Syria.  Mr Junidi’s son and Ms Ammoun have both visited relatives in Syria in recent years. 

9. Ms Ammoun is due to give birth to her first child - Mr Junidi’s and Ms Badran’s first grandchild – with a matter of days.  They do not think they can visit Syria with a baby and instead want Mr Junidi and Ms Badran to come to Australia.  The material submitted to the Tribunal includes evidence about her pregnancy and about her physical and psychological state in the context that Mr Junidi and Ms Badran may not be permitted to come to Australia and so be unable to support her.  The material also includes medical evidence stating that Ms Ammoun’s mother has a “complex medical history”.  That evidence was submitted to explain that Ms Ammoun cannot at this time rely on the usual support she might expect from her mother. 

10. The stated intention of Mr Junidi and Ms Badran has been to visit Australia for up to 12 months to be with the family at the time of the birth but also so that Mr Junidi can visit a brother he has in Melbourne; Ms Badran can visit a brother she has in Perth; and Mr Junidi and Ms Badran can see places including Sydney and the Gold Coast.  The Tribunal was told that according to custom it would be more than a month after the birth before Ms Ammoun could leave the home.  The Tribunal also heard that Mr Junidi’s son would not qualify for any time, or any significant amount of time, off work until Easter next year.  Subsequent to the hearing, Mr Junidi’s son wrote to the Tribunal to say that while the preference is that his parents be permitted to visit Australia for 12 months, he and they would rather they be granted a shorter time (six months) than that they not be granted visas at all. 

11. The Department’s files include relevant pages from Mr Junidi’s and Ms Badran’s passports; certificates in relation to Mr Junidi’s profession and his ownership of a car and real estate in Syria; bank statements; written statements in support of the application; and submissions by their former migration agent.  Material including statutory declarations and the above mentioned medical and related evidence concerning Ms Ammoun and her mother was submitted to the Tribunal. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether cl.600.211 is met. This 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.

14. In the present case, Mr Junidi and Ms Badran seek the visas for the purpose of visit to their son and other family members here. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231. 

15. 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)).

16. 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.

17. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

18. All witnesses impressed the Tribunal as credible witnesses.  They did not seek to overstate points to their advantage or understate points to their disadvantage.   For instance, Mr Junidi and his son frankly told the Tribunal that if Mr Junidi and Ms Badran were not in Syria to care for his mother then one of his siblings would do that.  They also said that in Mr Junidi’s absence other lawyers would be able to manage the small number of cases he has.

19. Mr Junidi and Ms Badran have not previously held a visa for Australia and so the criterion in cl.600.211(a)) is not relevant in this case.  The Tribunal heard that Mr Junidi and Ms Badran have never travelled outside Syria.  Mr Junidi’s son said that there had not been the occasion for them to do so, apart from in 2011 – the year he married Ms Ammoun.  The visa applications they made in order to attend the wedding were not successful.  Mr Junidi’s son was not sure about the reasons for the decision to refuse visas.

20. Mr Junidi has not only his son in Melbourne but also a brother in Melbourne.  His brother has a large family.  Ms Badran has a brother in Perth.  Her brother has a small family.  As mentioned, Mr Junidi and Ms Badran have three other sons in Syria, the youngest of whom is still a student.  Mr Junidi has three brothers and a sister in Syria.  His mother is there.  Two of his siblings are in Tartus and one is in Latakia.  Ms Badran’s mother and father live in Syria.  She also has a brother who lives between Tartus and Homs and two step-sisters.    

21. Mr Junidi told the Tribunal that he has a small amount of money.  When he turns 60 he will be eligible for a pension.  He said that he is able to manage the legal cases he has without having to travel to unsafe regions of the country.  If he were absent from the country for up to 12 months, other lawyers could manage the cases for him.  Apart from his mother and other family in Syria, Mr Junidi has friends there.  He told the Tribunal that Syria is his country and he would not be able to adapt to life in Australia if he were to be here for a longer time.  Mr Junidi said that he just wants to visit his son and daughter-in-law at (or about) the time of the birth, stay for a few months, then return to Syria.  Ms Badran said in effect that her children (that is, most of them) her parents and other family in Syria are her incentive to return. 

22. The Tribunal discussed general information about the war in Syria and the Department’s statistics regarding the rate of non-return on the part of Syrian citizens granted Visitor visas[1].  The Tribunal must of course consider the individual circumstances.  Mr Junidi and Ms Badran have two sons engaged in military service, but there is no evidence that Mr Junidi and Ms Badran or their other family members have been directly affected by the war.  The response given to the general information was, in essence, that the part of Syria where Mr Junidi and Ms Badran now reside – which is on the coast, in the western part of the country - is not a dangerous area and that it is a long way from where the main fighting is going on.  

    [1]

23. The Tribunal, satisfied as it is about the credibility of the witnesses, accepts this response, while noting country information about the extremely grave situation in Syria and that millions of Syrians have fled since 2011 or been internally displaced.  The Tribunal also notes that while Tartus is in a relatively secure government-controlled part of the country, there are reports of serious acts of terrorism committed there in May and September this year[2].

    [2] See, for instance, DFAT Country Report Syria 2015; UNHRC at and >

    Mr Junidi and Ms Badran have close family members living in Australia, soon to include their first grandchild.  They are at or near retirement age.  As the delegate noted, they have assets that could be transferred (if they were determined not to return to Syria).  The Tribunal is nevertheless satisfied that they have an incentive to return to Syria that outweighs any incentive they would have to remain in Australia.  The main ties they have are their three sons and other family there.  The Tribunal considers that even though their property and professional interests could be transferred the existence of those interests provides some support for their stated desire to return to Syria.  (The Tribunal mentions that the address that appears in the visa applications is not in Tartus but in Homs, a city in Syria that has been far more exposed to harm than Tartus.  The Tribunal was told that the Homs address is the address for the purposes of ID documents.  The property certificate submitted to the Department, on the other hand, is for property in Tartus, confirming the oral evidence that Mr Junidi and Ms Badran have moved there and acquired property there). 

24. War in Syria has meant that millions of Syrian nationals have left or been attempting to leave the country.  Each case must of course be considered on the basis of its individual circumstances.  In the present case the Tribunal is satisfied that Mr Junidi and Ms Badran genuinely intend to stay temporarily in Australia for the purpose for which the visa would granted - to visit one or more Australian citizen relatives - and that they would comply with the conditions not to work here, not to study or train for more than three months here, and not to remain beyond the visa period. 

25. For the above reasons the Tribunal finds that the requirements of cl.600.211 are met.

    DECISION

26. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    John Billings
    Senior Member