2214906 (Migration)

[2023] AATA 3507

2214906 (Migration) [2023] AATA 3507 (11 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sam Issa

CASE NUMBER:  2214906

MEMBER:Nathan Goetz

DATE:11 September 2023

PLACE OF DECISION:  Melbourne

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

DIRECTION:  The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) (the Act) in relation to this review that information must not be published by the Tribunal that would identify that the review applicant applied for a protection visa.

The Tribunal is satisfied it is in the public interest that this material is not published because a number of provisions in the Act restricts publishing material that identifies protection visa applicants, e.g., ss 91X, 431 and 501K).

Statement made on 11 September 2023 at 11:26am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – genuinely intends to stay temporarily in Australia – visa applicant visiting his son – limited travel history outside of Syria – circumstances of the present security situation regarding Syria – incentives to stay in Australia – family migration history – 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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.

2. The review applicant was represented in the review by an Australian legal practitioner.

   CRITERIA FOR THE VISA

   600.211 

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  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; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)  any other relevant matter.

   BACKGROUND

3. The visa applicant identifies as a male citizen of Syria where he is currently located.

4. On 22 June 2022 the visa applicant applied for the visitor visa. He applied for the visitor visa at the same time as his wife, Ms [A], who identifies as a female citizen of Syria presently located in that country.

5. 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 visa 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 (Cth) (the Regulations).

6. On 19 September 2022 the delegate refused to grant the visa applicant the visitor visa on the basis that the visa applicant did not satisfy cl 600.211 of Schedule 2 to the Regulations. That same day, the delegate refused to grant the visa applicant’s wife the visa on the same basis.

7. On 10 October 2022 the review applicant applied to the Tribunal for review of the decision refusing to grant the visa applicant a visitor visa. The review applicant is the visa applicant’s son. That same day, the visa applicant’s wife also applied to the Tribunal for review of the decision concerning her visa application.

8. On 22 August 2023 the Tribunal wrote to the visa applicant under s 360(1) of the Act and invited him to appear at a Tribunal hearing scheduled for 10:00am on 8 September 2023. The visa applicant’s wife was also invited to appear at a Tribunal hearing at the same time. As both the visa applicant and his wife had applied for visa applications to come to Australia together, the Tribunal determined that it was appropriate to hold the Tribunal hearings together.

9. On 8 September 2023 the visa applicant and his wife appeared at the Tribunal hearing by telephone. The Tribunal determined that an appearance by telephone was appropriate given that the visa applicant and his wife were in Syria and the review applicant was located outside of Victoria. The review applicant’s representative also attended the Tribunal hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

10. The visa applicant’s wife’s review is the subject of a separate decision record: AAT 2214907.

    CONSIDERATION OF EVIDENCE

11. In the visa application form, the visa applicant declares that he was born in Syria on [date]. He is a citizen of that country and no other country. His usual country of residence is Syria and he lives in [city].

12. The visa applicant declared that he has not previously travelled to Australia and has not previously applied for a visa to Australia.

13. The visa applicant identifies his spouse as [Ms A], who was born on [date]. She is the visa applicant’s travelling companion to Australia.

14. The visa applicant identified the following ‘non-accompanying members of the family unit’ who would not be travelling with him to Australia. They are:

    ·     Mr [B], who was born on [date] in Syria. He is the visa applicant’s son. He is an Australian citizen whose usual country of residence is Australia and is the review applicant.

    ·     Ms [C], who was born on [date] in Syria. She is the visa applicant’s daughter. According to material the review applicant provided to the Tribunal, she is a citizen of Syria and resides in that county. At the Tribunal hearing, the Tribunal was told this was correct.

    ·     Ms [D], who was born on [date] in Syria. She is the visa applicant’s daughter. According to material the review applicant provided to the Tribunal, she is a citizen of Syria and resides in that country. At the Tribunal hearing, the Tribunal was told this was correct.

    ·     Mr [E], who was born on [date] in Syria. He is the visa applicant’s son. According to material the review applicant provided to the Tribunal, he is a citizen of Syria and resides in [Country 1]. At the Tribunal hearing, the Tribunal was told that this son was a permanent resident, but could not explain what the basis of the permanent residency was. The Tribunal was told that he did not speak to his brother for nearly three years and does not have a good relationship with him.

    ·     Ms [F], who was born on [date] in Syria. She is the visa applicant’s daughter. According to material the review applicant provided to the Tribunal, she is a citizen of Syria and resides in [Country 2]. At the Tribunal hearing, the Tribunal was told that it was a business visa and her husband had a business there. The review applicant said he knew this because they talk to her every day and her husband is his friend.

    ·     Mr [G], who was born on [date] in Syria. He is the visa applicant’s son. According to material the review applicant provided to the Tribunal, he is a citizen of Syria and resides in [Country 3]. At the Tribunal hearing, the Tribunal was told that he was a permanent resident in that country and was presently in Syria visiting and his permanent residence related to his studies.

    ·     Ms [H], who was born on [date] in Syria. She is the visa applicant’s daughter. According to material the review applicant provided to the Tribunal, she is a citizen of Syria and resides in [Country 4]. At the Tribunal, the Tribunal was told that this residency was related to her husband’s business.

15. The visa applicant indicated that he was applying for the visitor visa in the tourist stream and the purpose of visiting Australia was a family visit. The visa applicant declared that a significant date that the visa applicant needed to be in Australia was 25 July 2022. His planned departure date is 20 October 2022. The visa applicant declared that his stay in Australia would be funded from his own savings. His son Mr [B] will pay for airfare and accommodation. At the Tribunal hearing, given the time that had passed, the Tribunal was told that the visa applicants wished to visit Australia at any time.

16. The visa applicant declared that he had a contact in Australia, namely his son Mr [B] who is the review applicant. The visa applicant identified his son’s residency status as an Australian citizen. Included with the visa application form was the review applicant’s Australian citizenship certificate confirming that the review applicant acquired Australian citizenship on 15 February 2022.

17. The review applicant’s migration history is as follows:

18. On 28 August 2006 the review applicant was granted a visitor visa to come to Australia. He arrived in Australia on [date] September 2006 and departed Australia on[date] November 2006. That visa expired on[date] December 2006.

19. On 30 May 2007 the review applicant was granted a temporary partner visa. On [date] June 2007 the review applicant arrived in Australia holding that visa. On [date] February 2008 that visa ceased.

20. On 13 June 2008 the review applicant applied for a combined spouse visa. On 9 February 2011 that visa was refused. The review applicant applied to the Tribunal for review of the decision. On 17 November 2012 the Tribunal affirmed the refusal [decision]. The review applicant requested that the Minister exercised powers under s 351 to substitute the Tribunal decision. On 8 March 2013 that request was finalised as not being considered.

21. On 16 December 2015 the review applicant was granted a protection visa.

22. The review applicant provided a statutory declaration dated 17 June 2022 which was attached to the visa application form. The review applicant declared that he had not seen his parents since he left Syria in 2007 and that his parents had not seen the review applicant’s wife or daughter, who was born on [date]. The review applicant is currently undergoing treatment for his [Body part 1] and requests further [Body part 1] surgery. The review applicant would like for his parents to spend time with him and his family while he undertakes surgery. The review applicant claimed that his parents intend a genuine short stay visa and will return to Syria prior to the expiration of the visitor visa. The review applicant wrote that his parents had adequate incentives to return to Syria including an unmarried sister, personal property and a pension.

23. The review applicant provided another statutory declaration dated 30 August 2023 to the Tribunal. Concerning his own migration history, he detailed that his relationship with his ex-wife broke down in 2008 and the couple divorced in 2009. Given the prevailing conflict in Syria, he applied for a protection visa in 2011 and was granted the visa in 2015. He wrote that he married his current wife in 2015 and the couple have two children from the marriage. His parents have never met his wife, or his two daughters and the review applicant would like his parents to spend time with him and his family while he undertakes [Body part 1] surgery.

24. The visa applicant declared in the visitor visa application form that he would not undertake a course of study in Australia. He also declared that he had never been removed, deported or excluded from any country, has never overstayed a visa in any country, has never not complied with any visa conditions or departed outside an authorised period of stay, and has never had a visa refused. The visa applicant acknowledged that if condition 8503 was imposed on his visa, it would limit his ability to remain in Australia beyond the authorised period of stay, agreed to leave Australia before the expiration of the period of stay of the visa, and understood the visitor visa does not permit the visa applicant to work in Australia.

25. The visa applicant indicated in the visitor visa application form that he was retired as of 10 October 2012. The review applicant’s statutory declaration identifies that the visa applicant was previously a [occupation].

26. The Tribunal has had regard to the DFAT Country Information Report on Syria dated 23 October 2017. According to that report (at 2.18) ‘the security situation in Syria remains extremely dangerous. Large-scale military operations involving small arms, artillery and airstrikes continue in many parts of the country. The UN continues to receive credible reports of the use of barrel bombs and chemical weapons by the government and ISIL has committed many atrocities, including using chemical weapons. Airstrikes continue to kill and injure civilians and to damage infrastructure across Syria, including schools and hospitals.’

27. ‘DFAT assesses that, while security conditions may differ across the country depending on who controls any given area and whether it is contested, overall the situation remains highly volatile. All civilians are vulnerable to physical harm caused by deliberate targeting, politically motivated or sectarian-related detention and indiscriminate violence. DFAT assesses that the authorities may view individuals who have left Syria with suspicion (at 2.24).’

28. In response to the above extracts which the Tribunal read at the Tribunal hearing, the visa applicant said that he would return to Syria because he had a house, car and other property there. He said that he had left Syria and returned once before in 1982.

29. At the Tribunal hearing, the review applicant was asked how his circumstances which lead to him being granted a protection visa would be different to his father’s circumstances. The review applicant said that at the time he applied for the protection visa in 2011, the situation in Syria was very bad but now the situation is different. The review applicant was asked whether he had travelled back to Syria and he said that he had not. He told the Tribunal that his failure to return to Syria for a visit was not because it was unsafe, but because he was busy with married life, had surgery and needs to further surgery, as well as having a new baby who is aged [age]. He told the Tribunal he was keen to go to Syria for a visit. He told the Tribunal that since 2016 Syria has been all good, and that he has friends who come and go without a problem. The Tribunal explored why, if Syria was safe from 2016 until the COVID pandemic closed the borders, the review applicant had not returned to that country for a visit during that period. The review applicant said that it was because of his business that he did not travel during that period.

30. It was submitted at the Tribunal hearing that the visa applicant had sufficient incentives to return to Syria and not remain in Australia, that he would comply with conditions that attached to the visa. Incentives included financial familial and emotional.

31. It was also submitted that the security situation as discussed in the DFAT Country Information Report was limited to the north of that country, that there had been no reported incidents of violence where the visa applicant resides.

    FINDINGS AND REASONS

32. 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.

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

    Whether the visa applicant has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

34. The delegate decision record does not detail that the visa applicant has not previously travelled to Australia. The decision record is silent about this consideration.

35. The visa applicant declared that he had never previously travelled to Australia. There is no evidence to undermine this assertion. Therefore, the visa applicant has no Australian migration history to demonstrate previous compliance of visa conditions to determine whether the visa applicant does, or does not, genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

    Whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)).

36. The delegate decision record does not detail the conditions which would be imposed on the visitor visa if granted. The decision record is silent about this consideration.

37. 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

    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.

38. At the Tribunal hearing, the visa applicant and his wife indicated that they understood the visa conditions and agreed to abide by them. While the Tribunal accepts that in the event that the visitor visa is granted, he would not work in Australia or study in Australia, the Tribunal is not persuaded that the visa applicant would comply with Condition 8531 for reasons detailed in the Tribunal’s consideration of other matters.

    All other relevant matters (cl 600.211(c)).

39. The Tribunal has considered the visa applicant’s limited travel history outside of Syria. Apart from a trip to Lebanon in the early 1980s, there is no recent travel history to demonstrate that the visa applicant has departed Syria and returned to that country.

40. Further, the visa applicant has experienced violence in Syria, namely a kidnapping where he was held until a ransom was paid. The Tribunal struggles to accept that in those circumstances, the visa applicant would not use his first available opportunity to travel outside Syria to remain in Australia permanently and refuse to return to that country at the end of any period authorised on the visitor visa.

41. The Tribunal has also had regard to the fact that despite the submissions made concerning the present security situation in Syria, the DFAT Country Information Report has not been updated to suggest that the security situation is as safe as suggested to the Tribunal. The Tribunal is confident that if there was any material change in the security situation in Syria, the DFAT Country Information Report would have been updated to reflect this. The Tribunal is satisfied that the current security situation is that detailed in the most recent DFAT Country Information Report. The Tribunal is satisfied in the circumstances of the present security situation regarding Syria, the visa applicant will not return to that country at the end of his proposed visit to Australia.

42. Additionally, the Tribunal is not persuaded that the only reason that the review applicant has failed to travel to Syria to see family are those suggested to the Tribunal. The Tribunal is not satisfied that those reasons would stop the review applicant travelling to that country to introduce his wife and child to his parents. The Tribunal is satisfied that the failure of the review applicant to travel to Syria is because the review applicant has concerns about his safety and that of his Australian-based family if they returned to Syria for a visit.

43. The Tribunal accepts that there are economic, property and familial ties to encourage the visa applicant to return to Syria. However, those ties do not, in the Tribunal’s assessment, outweigh the visa applicant’s incentives to travel to Australia and refuse to return to Syria.

    CONCLUSION

44. For the reasons given above, the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be issued.

1. Therefore, the visa applicant does not satisfy cl 600.211 of Schedule 2 to the Regulations.

   DECISION

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

   Nathan Goetz
   Member