1906828 (Migration)

[2021] AATA 2614

1906828 (Migration) [2021] AATA 2614 (14 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906828

MEMBER:Rosa Gagliardi

DATE:14 May 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 14 May 2021 at 2:32pm

CATCHWORDS
MIGRATION - Visitor (Class FA) visa - Subclass 600 (Visitor) - Sponsored Family stream – not a genuine temporary entrant – applicant’s senior age – poor health, economic and security situation in Syria – family ties in Syria – history of travel to Lebanon – strong incentives to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 5 February 2019. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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 (Cth) (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/sponsor appeared before the Tribunal on 4 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant overseas.  The Tribunal also took evidence from the sponsor’s son in [Australia].  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter and family in Australia.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

   Background

10. The applicant is [an age]-year-old widow from Damascus, Syria.  She is living in her own home with a son, his wife and children.   The household also includes the family of a son who is currently missing, believed to have been kidnapped and gaoled in 2013.  It was claimed at hearing that the applicant cares for the family of her missing [son].  The sponsor has submitted a copy of a letter sent to her by the Australian Red Cross – Letter of involvement – Australian Red Cross’ restoring Family Links, dated [April] 2021, reflecting that the sponsor’s family sought assistance to locate the sponsor’s [brother].  The sponsor explained that her brother was going to work 7 or 8 years ago when he was accosted and taken away.  They had not heard from or of him since that time.

    cl.600.211(a)

11. 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)).

12. The applicant travels to Lebanon to visit her sisters who are citizens of that country frequently and the Tribunal has had regard to the evidence pointing to numerous visits to Lebanon, after which time the applicant returned to her home and family in Syria.  It was reiterated to the Tribunal on several occasions by the applicant and sponsor and her son[that] had the applicant had any difficulties in living in Syria she could easily have moved permanently to Lebanon close to her sisters without difficulty.  However, she never chose to take up this option as her life in Syria was settled.

13. The Tribunal places some weight on this record of travel but as put to the applicant at hearing, the conditions in Lebanon were not comparable to those in Australia.  The incentive to move from a war-torn country to one that experienced significant challenges economically and otherwise, would not have been compelling.

    In 2020, Lebanon endured multiple crises, including a massive explosion in Beirut’s port, an economic collapse, rising political instability, and the Covid-19 global pandemic, all of which endangered residents’ basic rights. The Lebanese political class failed to adequately address any of these crises, some of which were of their own making.

    The Lebanese Pound has lost 80 percent of its value since October 2019, eroding people’s ability to access basic goods, including food, shelter, and healthcare. The Covid-19 pandemic compounded poverty and economic hardship.

    The economic crisis and the Covid-19 pandemic severely affected the medical sector, endangering the ability of hospitals to provide life-saving care. Electricity blackouts became widespread, lasting up to 22 hours per day in the summer.

    On August 4, a massive blast in Beirut’s seaport devastated the city killing almost 200 people, injuring more than 6,000, and leaving 300,000 people without shelter. Prime Minister Hassan Diab’s government resigned shortly thereafter. Saad Hariri was nominated to be the country’s prime minister on October 22, nearly one year after he resigned from the post amid popular protests.

    Lebanese security forces, including army personnel, internal security forces, and the parliament police, have used excessive force on several occasions against demonstrators, especially following the country’s October 17, 2019 uprising—often with impunity. Lebanese authorities continued to investigate and prosecute individuals for peaceful speech and refer civilians to military courts.

    Women and children still face discrimination under the religion-based personal status laws, and child marriage and marital rape remain legal. Unlike men, Lebanese women cannot pass their citizenship to their children and foreign spouses.

    There are approximately 1.5 million Syrian refugees in Lebanon, of whom about 78 percent lack legal status, an increase from the previous year. The situation of migrant domestic workers, who are subject to the restrictive Kafala (sponsorship) system and are excluded from labor law protections, has worsened amid the economic crisis and Covid-19 pandemic.[1]

    [1] Human Rights Watch, World Report 2021, Lebanon Events of 2020, World Report 2021: Lebanon | Human Rights Watch (hrw.org), accessed on 3 May 2021.

14. Given the circumstances in Lebanon and the Tribunal’s assessment that there would not be a high motivation to move to that country by the applicant permanently, the Tribunal is unable to place significant weight on the applicant’s travel history.  This is particularly so as she has not travelled to a country like Australia where health services and the standard of living are generally high. 

    cl.600.211(b)

15. 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)).

    ·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.

16. As put to the applicant at hearing, the Tribunal is satisfied that the applicant given her age is not coming to Australia to work.  Principally she has been a homemaker her entire life and also undertakes sewing for relatives and friends from her home.  The Tribunal also accepts that the applicant is similarly not intending to come to Australia to commence a lengthy (or brief) course of study.

17. At hearing the Tribunal asked the sponsor how her mother had been surviving for a such lengthy period given her husband had passed away some 20 years ago, and she was not earning an income.  The sponsor stated that her son who lives with her has been supporting her and the sponsor sent her financial gifts as they were working in Australia.  The applicant was not renting so her financial needs were contained.  When her husband passed away, the house she shares with her family members was transferred over jointly to the applicant and the sponsor’s brother. 

18. Asked if the applicant had any other assets apart from the home she resides in, she responded that she did not.

19. The Tribunal was also interested to know who supports the wife and children of [her son], who is now missing.  The sponsor responded, and the applicant confirmed, that the applicant’s other son provides support to the family who has been without a bread winner.  Asked the occupation of the applicant’s son in Syria, the sponsor stated that he worked as an employee in a [shop]. The sponsor also sent financial gifts to assist the occupants of the applicant’s household, as a whole.

20. The Tribunal noted that the applicant had provided evidence of her savings at the time of application, but these had not been translated and that therefore the Tribunal was unable to ascertain the applicant’s current (or otherwise) savings.  Another [Bank] statement has been submitted reflecting transactions from [July] to [September] 2018, which is in English.  This demonstrates that as [September] 2018, the applicant held [amount] Syrian Pounds in savings, which is the equivalent to roughly AUD [amount] in today’s currency. 

21. The sponsor was truthful in stating that it was likely that the applicant, her mother, had now exhausted her savings.  From the evidence it appears that the applicant is reliant on the salary of her son who is also supporting his own family, the applicant, and his missing brother’s wife and family.  As an employee in a [shop], the Tribunal is not satisfied that his earnings would enable the applicant, and the other members of the household, to live a worry-free existence in terms of being able to meet their basic needs.  The Tribunal accepts that the sponsor in Australia is able to send some funds, but she also has her own family’s commitments.  She stated at hearing that she earned up to [amount] annually as a support person for disabled children, her husband worked as [an occupation], and she received government subsidies for a son who is in a wheelchair, and for another son who was still at school. 

22. Overall, the Tribunal is not satisfied that the applicant’s financial circumstances in Syria, particularly when coupled with the overall economic outlook in that country, represent an incentive for the applicant to return to her home country.  The Tribunal places some adverse weight on this matter.  This is particularly so in light of the country information which shows that the economy in Syria, for a multitude of reasons is in serious difficulty, not least because of the security situation.

23. At hearing the sponsor asserted that the situation in Syria had improved tremendously and the applicant lives in a safe area.  She emphasised that now the situation had improved and “the livelihood over there is excellent”.  She stated that her mother was not affected by the circumstances that led to her brother going missing as that had occurred some 7-8 years ago.  The Tribunal is not reassured that the country information supports the contention that the applicant is unaffected by the situation in Syria currently, particularly in terms of food security and access to health services.

24. As put to the sponsor and the applicant the Australian government has warned its citizens not to travel to Syria at all [2]. Similarly, a recent United States travel advisory states, among other things:

    The Centers for Disease Control and Prevention (CDC) has issued a Level 4 Travel Health Notice for Syria due to COVID-19, indicating a very high level of COVID-19 in the country…

    Syria has experienced active armed conflict since 2011.  No part of Syria is safe from violence.  Kidnappings by armed groups, unjust arrests and/or detentions, the use of chemical warfare, shelling, and aerial bombardment of civilian centers pose significant risk of death or serious injury.  The destruction of infrastructure, housing, medical facilities, schools, and power and water utilities has also increased hardships inside the country…

    Terrorist groups are active in Syria.  Parts of Syria have experienced recent increases in incidents of bombings, IEDs, and assassinations…

    The Syrian government has also been implicated in the enforced or involuntary disappearance of more than 100,000 citizens, including medical and humanitarian workers, journalists, human rights activists, political opposition, and additionally those suspected of affiliation with these groups and their family members…[3]

    [2] accessed initially on 3 May 2021.

    [3] US Department of State, Syria Travel Advisory, 21 April 2021, Syria Travel Advisory (state.gov), accessed initially on 3 May 2021.

25. While the Tribunal is prepared to accept that the applicant herself is not of interest to the government or other state/non-state actors in Syria, as was her son, the Tribunal on the basis of the above, finds it difficult to accept that a woman going into the latter years of her life would find such an environment comfortable.

26. Further:

    In 2020, civilians in Syria faced another year confronting stark challenges and abuses, first and foremost at the hands of the Syrian government and other authorities, despite a discernible decrease in violent conflict.

    With the unprecedented depreciation of the national currency, the imposition of further international sanctions, and crises in neighboring countries, the Syrian economy went into freefall for much of 2020. For ordinary Syrians, this translated into an inability to procure food, essential drugs, and other basic necessities. As a result, more than 9.3 million Syrians have become food insecure and over 80 percent of Syrians live below the poverty line.

    Meanwhile, human rights abuses in government-held territory continued unabated. Authorities brutally suppressed every sign of re-emerging dissent, including through arbitrary arrests and torture. Authorities also continued to unlawfully confiscate property and restrict access to areas of origin for returning Syrians.

    The decade-long war has decimated the country’s economy and healthcare system, significantly complicating efforts to respond to and mitigate the Covid-19 outbreak, even in areas where active fighting has receded. Despite official numbers being low, doctors and nurses in government-held areas cast doubt upon the accuracy of these official statistics and estimate that hundreds of thousands have been infected with coronavirus. Overwhelmed hospitals turned patients away, and severe shortages of personal protective equipment contributed to large numbers of deaths. The pandemic also exposed existing fissures in the country, including the discriminatory distribution of essential medical supplies.
    
    Until March 2020, when a ceasefire was put in place, the Syrian-Russian military alliance continued its offensive on Idlib governorate, the last anti-government foothold in Syria. Since 2019, the alliance has targeted civilians and civilian infrastructure in the northwest in indiscriminate attacks, resulting in thousands of deaths and at least one million newly displaced people. The offensive also meant that the region was ill-prepared to deal with the pandemic. With over 50 percent of the health infrastructure destroyed, and hundreds of thousands without shelter and unable to practice social distancing, the region is increasingly at risk of a devastating outbreak.

    The United Nations Security Council’s closure of the sole authorized border crossing from Iraq to northeast Syria in January, due to a veto threat from Russia, and restrictions applied from government-held areas on the delivery of humanitarian aid, resulted in severe shortages of medical supplies and a dwindling number of hospitals capable of responding to the coronavirus pandemic in the region.

    The difficulties with cross-border aid grew in July when the council closed one of two authorized crossings for UN aid deliveries from Turkey into northwest Syria. Now there is only one authorized crossing, resulting in bottlenecks and delays.

    Meanwhile, the fate of thousands kidnapped by the Islamic State (ISIS), primarily in the northeast, remains uncertain. While the Kurdish-led Syrian Democratic Council (SDC), announced the creation of a civilian working group to trace and locate those who have been disappeared by ISIS, no significant progress has been made, and the US-led Global Coalition to Defeat ISIS remains largely absent on this issue.[4]

    [4] Human Rights Watch, World Report 2021, Syria Events of 2020, accessed initially on 3 May 2021.

27. Given the applicant’s limited access to income, the Tribunal is particularly concerned about 80 per cent of Syrians living below the poverty line, which does not accord with the sponsor’s claims that livelihoods in Syria were excellent. 

28. The Tribunal also put to the applicant and sponsor the findings of the Food and Agriculture Organization of the United Nations (FAO) regarding the food insecurity issues facing every day Syrians currently:

    The food security situation deteriorated in the Syrian Arab Republic in 2020, with the number of people facing acute food insecurity rising from 7.9 million in 2020 to a staggering 12.4 million (60 percent of the population) in 2021.  This is the result of multiple shocks, including the protracted conflict and insecurity, mass displacement, the impact of the COVID-19 pandemic, fuel shortages, devastating wildfires and other climate-induced shocks.  This has severely degraded livelihoods, and the depreciation of the Syrian currency has led to a significant loss in purchasing power and reduced the value of remittances.

    A sharp increase in the cost of inputs and their limited availability on the market has threatened domestic crop production, and vulnerable farmers are not earning enough to recover their investments.  This is limiting development in the agricultural sector, and if dependence on cereal imports grows further, particularly in the context of increasing prices, households will find it even more difficult to meet their food needs.  In January 2021, the average price of the food basket was 222 percent higher than in January 2020.[5]

    [5] Food and Agriculture Organization of the United Nations, Syrian Arab Republic, Humanitarian Response Plan 2021, Syria | Humanitarian Response Plan 2021 : FAO in Emergencies, accessed initially on 3 May 2021.

29. The sponsor stated that her mother’s circumstances should not be viewed only in the context of the country information.  The Tribunal concurs that each applicant’s circumstances must, in fairness, be viewed individually.  Given the applicant is living in a household where there is only one bread winner, the Tribunal is not convinced that the applicant is immune from the circumstances affecting everyday civilians, including access to healthcare, food and other necessities.

1. It was argued at hearing that the applicant continues to wait for her son who is missing to return and that she is connected to her home area in Damascus because every time someone comes out of prison, she is able to ask about her son and whether they had news of him.  In Australia she would be cut off from such information.  Nonetheless, the Tribunal notes that the Australian Red Cross is now involved in an attempt to locate her son, and she need no longer be on the ground trying to rely on word of mouth about his whereabouts.  A more structured mechanism is now in place through the Australian Red Cross to obtain information about her son.  While the Tribunal does not doubt that the applicant wants to be close to where her son went missing to hear news firsthand, the need for her to do so has now diminished.

2. It was also argued at hearing that the applicant was very close to her grandchildren in Syria, and in particular, had a sense of responsibility to care for the wife and children of his son who had gone missing.  The Tribunal does not have any doubt that the applicant is close to both sons’ families and that she provides emotional care and support for them.  Nonetheless, she is now in her later years and her capacity to physically care for children will also diminish over time.  The Tribunal considers that it would be preferable for her family in Syria to know that their elderly mother/grandmother was in a safe country where any medical issues that might arise can be reliably taken care of. 

3. The Tribunal finds that given the country information, it is difficult to be satisfied that the applicant would return to a war-torn country where infrastructure and health services have been decimated, when she could be looked after by her daughter in Australia.  While the Tribunal places some weight on the applicant’s affective bonds in Syria, the Tribunal considers that the circumstances of the country are such that her family overseas would have peace of mind that she was being optimally looked after in a stable and secure country, if the applicant could maintain an ongoing presence in Australia.

   cl.600.211(c)

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

5. The sponsor emphasised that as an Australian citizen who had been in the country now for some 7 years it was her right to sponsor her mother to Australia.  The Tribunal has taken into account that the sponsor also stated that she and her family of three children had been in Australia for 7 years and were law abiding.  The Tribunal has no doubt the family’s members are good citizens.  The Tribunal has heard that it is difficult for the whole family to go and visit the applicant in Syria because the sponsor’s son is confined to a wheelchair and services in Syria, particularly gaining access and movement, makes life for someone in

   
   

   [Mr A]’s condition very difficult. 

6. The Tribunal also appreciates that it would impose a significant cost for the entire family to travel overseas.  The sponsor also stated that she could not leave her [age]-year-old son alone due to his disability, even though [Mr A] stated that he was quite independent.  Furthermore, the Tribunal notes that [Mr A], were he to be in great need, could also rely on his other siblings.

7. The Tribunal has a great deal of sympathy for the sponsor and her family as they have faced much tragedy.  The sponsor came to Australia as a refugee as they were resettled by the UNHCR.  They were resettled in Australia because [Mr A] was in a protest during the revolution against the government in 2011 and was shot.  His spinal cord was affected, and he became a paraplegic confined to a wheelchair.  They came to Australia for [Mr A] to be medically cared for.  [Mr A] stated that in Syria his grandmother had always looked after him.  His family relocated to Lebanon for two years and his grandmother had been able to visit.  It had now been 7 years and [Mr A] wanted to see his grandmother again. 

8. The sponsor also stated that she wanted her mother to able to join the family to partake in a religious festival and to attend her son’s graduation ceremony.  She wanted her mother to come for 3-6 months and then she would return to Syria.  Furthermore, the sponsor wanted her mother to be able to visit Australia regularly, on a three yearly, or so, basis.

9. The Tribunal has heard the statements of the applicant’s Australian family and accepts that they are highly desirous of seeing the applicant.  Nonetheless, it is the applicant’s intention that the Tribunal is required to assess, and as difficult as it may be for her to leave behind her sons’ families, the Tribunal considers that to secure the applicant’s safety in Australia would represent a major incentive to remain in Australia.

10. The sponsor also gave undertakings that she could pay a bond for her mother and that she was not at all interested in forfeiting any such bond.  Furthermore, she would also pay for her mother’s quarantine in Australia.  The Tribunal accepts the sponsor’s willingness to pay a bond but given the seriousness of the situation in Syria, is not satisfied that any such bond would motivate the applicant not to remain in Australia beyond the terms of the Visitor (Sponsored Family) visa.

    Conclusion

11. 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

12. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Rosa Gagliardi
    Member