1917125 (Migration)

[2020] AATA 6069

1917125 (Migration) [2020] AATA 6069 (14 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917125

MEMBER:Nathan Goetz

DATE:14 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2020 at 5:47pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine intention to stay temporarily for purpose of visa – previous compliant travel – extended family, properties and pension in home country – another adult child’s protection visa and Australian citizenship not disclosed – country information about security situation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), 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 Immigration 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 30 April 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 Tourist 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. On 8 May 2019 the delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211.

5. On 28 June 2019 the review applicant applied to the Tribunal for a review of the refusal decision.

6. On 14 September 2020 the review applicant appeared at the Tribunal by telephone to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Iraq, and oral evidence from the review applicant’s sister by telephone from Iraq. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages when the visa applicant gave her oral evidence.

   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. The visa applicant is a widowed woman who claims Iraqi citizenship. She lives in Iraq. In the visitor visa application form, she declares no family in Iraqi. She discloses one child who lives in Australia. This is the review applicant. The review applicant entered Australia on an offshore partner visa application and became an Australian citizen in 2003.

9. In the present case, the visa applicant seeks the visa for the purposes of family visit. This is a purpose for which a visa in the Tourist stream may be granted.

10. 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)).

11. The visa applicant previously travelled to Australia on a visitor visa. This visa was sponsored by the review applicant. The visa applicant arrived on 7 November 2012 and departed Australia on 29 January 2013. There is no evidence that the visa applicant breached any conditions attached to this visitor visa.

12. 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)). Because there has been no requirement from the Department that the visa applicant is sponsored in the Tourist stream 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

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

14. On 25 August 2020 the review applicant was invited in writing to attend a Tribunal hearing. She was requested to complete a hearing response form. The invitation also asked the review applicant to provide the following information to the Tribunal:

    ·Full name and date of birth, dates of arrival of any other of your close relatives (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephew) who have come to or visited Australia within the past 10 years.

    ·Full name and date of birth, dates of arrival / visit of any other close relatives you have sponsored or invited to visit Australia within the past 10 years.

    ·Updated information about the visa applicant’s employment and financial situation in their home country.

    ·Any other information relevant to the visa applicant’s activities or commitments or relationships in their home country that would encourage them to return at the end of a visit.

    ·Any information relating to any previous visa held by, or visa application made by, the visa applicant.

    ·Any information concerning any other travel by the visa applicant outside their present country of residence.

15. The letter directed that this information, and any documents or other information you consider relevant, no later than 7 days prior to the hearing, that is by 7 September 2020.

16. The Tribunal did not receive the completed hearing response, nor the above requested information prior to the Tribunal hearing. The review applicant did respond to indicate that she may have difficulty appearing at the Tribunal hearing due to work commitments and authorised her husband to give evidence on her behalf. The Tribunal wrote back and advised her that this would not be possible as she was the review applicant. The response from the Tribunal reiterated that the review applicant would need to complete the hearing response form. That response was not provided to the Tribunal prior to hearing.

17. When the review applicant appeared at the Tribunal on 14 September 2020, she was asked why she had not completed the hearing response form or provided answers to the Tribunal’s questions. The review applicant said that she did not see the questions or understand that she needed to provide a response. This issue came about because the visa applicant needed an Arabic interpreter to give oral evidence, and no interpreter had been arranged because the hearing response had not been returned, and the question about whether an interpreter is required is asked in the hearing response form.

18. The Tribunal was able to organise an Arabic interpreter after the hearing was postponed for a short time. The Tribunal also directed the applicant to provide the information requested in the hearing invitation in writing. The review applicant did so and provided the following response before the hearing resumed:

    ·     [Applicant name], born on [Date], country of birth Iraq, all my sister [Ms A] came to Australia via study visa in 2012 and left in 2020

    ·     [The applicant], she was granted a visitor visa in 2011 for 6 months she arrived late 2011, and left Australia in February 2012 (stayed for 3 months)

    ·     She is a retired [Occupation] since 1999, she owns properties in Iraq, which were shown with her application to the immigration department.

    ·     I have 4 siblings I'm Iraq, my mother takes care of her grandchildren over three, and she has no intent to stay permanently in Australia

    ·     Yes, as above she did visit Australian in late 2011 and left early 2012

    ·     No other information regarding this question

19. The review applicant told the Tribunal that she and her husband completed the visitor visa application form. The Tribunal asked why the form did not disclose that that the visa applicant had non-accompanying family members in Iraq. She said the failure to detail this was a mistake. She provided the Tribunal with the names and dates of birth of her siblings. She told the Tribunal that none of her siblings apart from her sister [Ms A] had previously travelled to Australia. She told the Tribunal that [Ms A] was granted a visa to study and came to Australia. She left Australia in 2020 and is now back in Iraq. The Tribunal asked whether that was the only visa her sister held while in Australia. The review applicant said that her sister got permanent residency and is now an Australian citizen. The Tribunal asked how her sister obtained permanent residency. She told the Tribunal that she applied for it and was not sure what type of visa this was.

20. The Tribunal asked the review applicant how she knew that her sister travelled to Australia on a student visa. She said that her sister told her this. The review applicant said that while her sister was here, she applied for permanent residency before her student visa expired. The Tribunal asked what her sister told the review applicant about this, and the review applicant said she did not recall.

21. The review applicant told the Tribunal that her mother’s ties to Iraq were the presence of her children, and extended family. The Tribunal noted that the review applicant’s sister was an Australian citizen and, in the event, that she returned to Australia, the visa applicant would have two children in Australia. The review applicant noted that there would be three siblings remaining in Iraq.

22. When asked why the visa applicant had applied for a visitor visa for 6 months for a visit, the review applicant said that the intention would be for her mother to only stay for 3 months as she did on her last visitor visa. The review applicant said that the visa applicant would live with her in her home during her stay, and that the review applicant would meet all her mother’s living expenses during her stay.

23. When asked about her mother’s property ties to Iraq, the review applicant said that the visa applicant owns a number of properties in Iraq. She owns a house that she lives in with her son and she thinks that her mother owns some land as well as a rental property. The review applicant said that the visa applicant receives a pension as a retired [Occupation]. The Tribunal asked why the review applicant did not provide documentary evidence about this pension. The review applicant said that she was not asked this question.

24. The Tribunal asked the review applicant whether her mother or any siblings had experienced harm in Iraq. The review applicant said that the whole situation was not good, noted the presence of terrorists, but that things have now improved in Iraq. The review applicant said that her mother had not experienced any harm personally and she was not aware of her siblings personally experiencing any harm in Iraq. The Tribunal asked the review applicant, given what she had said about the previous difficulties in Iraq, and noting that Iraq is not the most stable place to be in, why her mother would return at the end of her visit to Australia. The review applicant said most of the visa applicant’s children are there.

25. The visa applicant told the Tribunal that she has five children, and one is presently in Australia. The visa applicant said that she had property in Iraq. She had land and a house that she rents out. That was not the house she lived in with her son and his family. She told the Tribunal that she would return to Iraq at the end of her propped trip. The Tribunal asked the visa applicant why she would not stay in Australia once she was here. The visa applicant said that if she could stay in Australia, she would like that very much. She loves Australia and had a daughter there. It would be very good. The Tribunal asked her if she wanted to stay permanently in Australia, she said that she was coming for a visit. If she could stay in Australia, then she would stay, but if she was not allowed to stay, she would return to Iraq. The Tribunal clarified with the visa applicant that it was asking about her intentions. She repeated that she was coming for a visit.

26. The Tribunal asked the visa applicant about her daughter who was an Australian citizen but was currently in Iraq. The visa applicant said that her daughter [Ms A] came to Australia as a student. When asked how her daughter remained in Australia at the end of her student visa, the visa applicant said that her daughter applied to remain in Australia. When asked on what visa her daughter applied to remain in Australia, the visa applicant said she did not understand what the Tribunal was asking.

27. The Tribunal asked if [Ms A] was staying with this visa applicant in Iraq. She said yes. The Tribunal asked to speak to [Ms A] and [Ms A] came to the telephone.

28. [Ms A] confirmed that she came to Australia on a student visa in 2013. She told the Tribunal that she found Australia to be a very good country and applied to stay forever. The Tribunal asked what type of visa she applied for, and [Ms A] responded that it was a protection visa. At the time, the circumstances in Iraq were not good and there were many problems. The Tribunal asked whether [Ms A] had told the review applicant that she had applied for a protection visa. [Ms A] indicated maybe and yes. She said it was a long time ago. She was thinking about applying for protection but was not sure. [Ms A] said that she had experienced harm in Iraq but not directly. She was a single mother. That was one of her reasons for applying for protection. The other reason was that there was conflict in Iraq with ISIS, and there was no racism in Australia.

    FINDINGS AND REASONS

29. The Tribunal acknowledges that the visa applicant has previously travelled to Australia and that there is no evidence of non-compliance with past visa conditions. However, this travelled occurred prior to the visa applicant’s daughter travelling to Australia and applying for a protection visa. The Tribunal acknowledges that the visa applicant is an older lady who has the presence of adult children in Iraq. The Tribunal also acknowledges that the visa applicant has some property ties to Iraq, but is concerned that those property ties are not as extensive as claimed by the review applicant, given that the visa applicant said that she did not own the house she was living in which was in conflict with the evidence provided by the review applicant.

30. The Tribunal has considered the present security situation in Iraq. According to the 17 August 2020 Australian Department of Foreign Affairs and Trade Country Report on Iraq (at 2.54) the security situation. while varying according to location, is highly unstable and fluid. Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom. Targets include government security forces, government offices, diplomatic missions, coalition and Iraqi military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure.

31. The Tribunal has considered the above information and, when coupled by the concerns that the Tribunal has about the fact that the visa applicant’s daughter [Ms A] applied for a protection visa in 2015, and the fact that the evidence provided by the visa applicant and review applicant about [Ms A]’s migration was vague, the Tribunal is not persuaded that the visa applicant genuinely intends to stay temporarily in Australia.

32. The Tribunal really struggles to accept that the visa applicant and review applicant have been forthcoming with the Department and Tribunal in their evidence. It is curious that the details of the visa applicant’s children would be omitted from the visitor visa application form, and even more curious that the visitor visa application discloses the presence of one child only in Australia and omits the child who came to Australia and was granted a protection visa. The concern that the Tribunal has about this omission is coupled with the concerns that the Tribunal has about the review applicant’s failure to provide details as requested about any family that had previously travelled to Australia until the Tribunal directed that she did so at the hearing.

33. The Tribunal does not accept that the failure to provide the information requested by letter on 25 August 2020 was an oversight. The applicant did in fact respond to this letter, as she indicated that her husband may give evidence on her behalf. The Tribunal does not accept that she did not read the rest of the letter. Instead, the Tribunal suspects that the review applicant did not respond to the letter as requested because she was concerned that her sister had applied for a protection visa, and worried that this may impact on her mother’s present visitor visa application.

34. The review applicant provided information about her Australian citizen sister after the Tribunal indicated that this would be required before the Tribunal continued with the hearing. The review applicant subsequently provided this, but described her sister as coming to Australia on a student visa and departing in 2020. A fair reading of this suggests that [Ms A] held only a student visa and subsequently left. However, as outlined above by [Ms A], that is not the case. She had in fact applied for a protection visa. Department records indicate that this was granted in 2015. The Tribunal does not accept that the review applicant was not aware of this, or somehow forgot, and knew only that her sister applied for a visa that made her a permanent resident. Equally the Tribunal does not accept that the visa applicant was not aware that one of her daughter’s applied for a protection visa in Australia. The Tribunal found [Ms A] to be vague about whether she had in fact told her sister in Australia that she applied for protection. The Tribunal suspects that the reason for this vague evidence was because [Ms A] was not sure whether her sister had told the Tribunal that she and her sister had discussed the protection visa.

35. Given that [Ms A] had told the Tribunal that she applied for a protection visa, and that she may have discussed this with her sister in Australia, the Tribunal adopted the s.359AA procedure and raised its concerns with the review applicant. The inconsistent evidence suggested that the review applicant and the visa applicant were not witnesses of truth about the claimed lack of knowledge of [Ms A’s] protection visa application. The review applicant responded that her sister did not say that she did tell the review applicant about the protection visa. She said that ‘maybe’ she did. The review applicant could not remember the classification of the visa. All she could remember that it was a permanent residency visa. The Tribunal has considered this response but is not persuaded by it. When considered in the visitor visa application form made no mention of the presence of [Ms A] in Australia, the Tribunal is satisfied that the review applicant knew very well what type of visa [Ms A] had been granted to remain permanently in Australia.

1. The Tribunal ponders the reason why the protection visa application made by [Ms A] was hidden from the Tribunal by both the visa applicant and the review applicant. On one hand, it may be that the sole reason for this omission was because both the visa applicant and review applicant were worried that the disclosure of this fact may have an adverse impact on the visa applicant being granted a visitor visa. On the other hand, it may have been omitted because the visa applicant herself intends to travel to Australia and apply for a protection visa to remain in Australia permanently. When the Tribunal considers both inferences, given all of the above, it comes to the conclusion that the reason for withholding the information about [Ms A] lodging a protection visa is because the visa applicant does not have a genuine intention to enter Australia temporarily for a family visit.

2. The Tribunal accepts that the visa applicant will not study or work while in Australia. However, the Tribunal is not satisfied that the visa applicant will depart Australia at the end of her visitor visa once she arrives in Australia. She has some ties to Iraq, but those ties do not, in the Tribunal’s view, outweigh its concerns about what the visa applicant will do once she arrives in Australia. While the visa applicant has travelled to Australia and departed previously, that was before a protection visa application was granted for her daughter in 2015. The Tribunal does not accept that the situation in Iraq has meaningfully changed since 2015 as to overcome its concerns about the visa applicant’s intentions travelling to Australia.

3. 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

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

   Nathan Goetz
   Member