Abdul Amir (Migration)

[2019] AATA 5666

Abdul Amir (Migration) [2019] AATA 5666 (16 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Samer Abdul Amir

VISA APPLICANT:  Mr Hussein Abdulameer Salman HAMOOZEH

CASE NUMBER:  1808395

HOME AFFAIRS REFERENCE(S):          BCC2018/1002381

MEMBER:Jane Marquard

DATE:16 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 16 December 2019 at 1:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine intention to stay temporarily for purpose of visa – visiting young grandchildren, including newborn baby – age – lack of English language skills – no other family in Australia – sick wife, other family, settled life and significant funds in relatively safe region of Iraq – review applicant’s support of visa applicant during visit, and offer of maximum security bond – visa applicant’s previous compliance with visa for travel to Europe – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, condition 8531

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 13 March 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant is a man from Iraq who is aged 78. The review applicant is his son.

2. The visa applicant applied for the visa on 28 February 2018. 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 (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 because he or she was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

5. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

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

8. 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 applicant has not travelled previously to Australia although he has held a visa to travel to Europe and he returned from that trip in compliance with his visa.

9. 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.

10. The Tribunal has considered the purpose of the visit, which initially was to visit family and help his daughter-in-law with his two young grandchildren while she looked after a new baby. The Tribunal has also taken into account the short length of the proposed visit and the fact that the applicant is aged 78 and is not an English speaker. Considering this purpose, the proposed length of visit, his age and language, the Tribunal is satisfied that the visa applicant would not work or study in Australia, and thus would comply with Condition 8101 and 8201. Condition 8503 refers to a lack of entitlement rather than a condition so is not considered here. The Tribunal has considered Condition 8531 below along with the issue of whether the applicant genuinely intends to stay temporarily in Australia.

11. The Tribunal in considering whether the applicant would comply with Condition 8531 and whether he genuinely intends to stay temporarily in Australia has all taken into account other relevant matters (cl.600.211(c)).

12. Firstly, the Tribunal has taken into account the purpose of the visit. The review applicant told the Tribunal that his father was urgently needed to look after his two young children after his wife gave birth on 5 April 2018 (medical records provided). The review applicant was to move his factory to a new location on 3 April 2018 (a lease contract was provided). He had taken on an important project which was due to start on 25 April 2018 which he had been working on for some time. Contact details were provided for the administrator. As these times had passed before the matter reached the Tribunal, the applicant provided updated information in the form of statutory declarations. He said that his father wished to spend time with his three young grandchildren. The Tribunal notes that the visa applicant’s grandchildren, who are Australian citizens, are now aged 10, 3 and 1. The review applicant and his wife have no other family in Australia. According to the information provided by the review applicant, the eldest granddaughter met the visa applicant in 2014 and loves him very much. The Tribunal has taken into account that the applicant is a grandfather who wishes to visit three young grandchildren and his son, which prima facie indicates a genuine intention to visit for that purpose.

13. Secondly, the Tribunal has taken into account the fact that the review applicant’s mother-in-law died seven years ago and his father-in-law does not like to travel, such that she could not have her own parents visit and support her with the grandchildren. Furthermore, the review applicant’s own mother has been sick and other family members have family commitments. The visa applicant and his family have travelled to Iraq and Syria to visit their family members in 2017 (photographs provided). This does indicate that there is a need for this visa applicant specifically to visit and spend some time with his family.

14. Thirdly, the Tribunal has taken into account the fact that the review applicant is willing to place a maximum security bond on his house and factory to guarantee his father’s return at the end of his stay. Bank account details show that the review applicant has significant funds in his account. Such an intention to provide a bond relating to his own private home and business does indicate certainty on the review applicant’s part that there is a genuine intention for the visa applicant to stay temporarily in Australia.

15. Fourthly, the Tribunal has considered the fact that the visa applicant’s wife and four daughters will remain in Iraq during his visit. A marriage certificate was provided. His wife has heart and blood pressure problems and cannot travel. He also has three brothers in Iraq. The presence of these family members, particularly his wife who cannot travel, constitutes a significant incentive to return, even though the visa applicant is retired and does not have a job he will return to at the end of his visit. He does however have a pension and owns a house for which a certificate of title was provided. He also has significant funds in his Iraqi bank account as demonstrated by bank documents. According to the review applicant he is well-settled in Najaf, his home region. The visa applicant said that ‘Iraq is my country that I was born and lived in and because I am married, I have my wife, all my family, my own house and to receive my retirement wage’.

16. Fifthly, the Tribunal notes that the review applicant has sufficient funds to support his father during his stay, as demonstrated by bank documents.

17. Sixthly, the Tribunal has taken into account the character of the review applicant. He and his family are Australian citizens. He states that he works very hard and employs Australian workers. He is the Managing Director of Nasa Stones and his company was elected for the Star City job. He also has other family members in Iraq such that it would be unlikely he would prejudice the opportunity for other visits by permitting his father to overstay.

18. Finally, the Tribunal has considered the security and political situation in Iraq as the review applicant has submitted that the visa applicant’s region is safe. The Department of Foreign Affairs and Trade Report states that Southern Iraq including Najaf province is more stable than other parts of the country, although there is some inter-Shi’a violence, criminality and drug abuse. The Report suggests that tolerance of religious minorities is higher in southern Iraq than central Iraq.[1] Another independent report states that southern Iraq has largely escaped the ISIS violence and is more secure than the rest of Iraq with no armed conflict taking place in Najaf governorate.[2]

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018

    [2] European Asylum Support Office, EASO Country Guidance Iraq,  June 2019

19. The Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal is also satisfied that he would comply with Condition 8531. The Tribunal has reached these findings on the basis of the visa applicant’s age, lack of English language, the purpose of his visit, the fact that he complied with a European visa, the offer of a bond by the review applicant to secure his return, the fairly stable situation in Najaf as compared to other parts of Iraq, and the strong incentives for the visa applicant to return in particular his wife who cannot travel and his four daughters. For the above reasons considered cumulatively the Tribunal is 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 met.

    DECISION

20. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Jane Marquard
    Member