AL-JUBOORI (Migration)

[2018] AATA 2490

AL-JUBOORI (Migration) [2018] AATA 2490 (15 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr ALI IMAD HASAN AL-JUBOORI

VISA APPLICANT:  Mr ZAID IMAD HASAN AL-JUBOORI

CASE NUMBER:  1721855

DIBP REFERENCE(S):  BCC2017/2633482

MEMBER:Roslyn Smidt

DATE:15 June 2018

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 15 June 2018 at 1:17pm

CATCHWORDS

Migration – Visitor (Class FA) – Subclass (Visitor) – Genuine temporary entrant – Sponsored family stream –   Visit brother – Plans to migrate on skills grounds in the future –  Medical professional – Wishes to undertake the Australian Medical Review Centre course – Incentives to return – Wife and child in Iraq – Ongoing employment in Iraq – Understanding of visa conditions – Decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.212

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 31 August 2017 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 25 July 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 in his view the current political, security and economic conditions provided a strong disincentive for him to return to Iraq and that his family ties and employment in Iraq did not overcome this problem.

5. The review applicant appeared before the Tribunal on 13 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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

   BACKGROUND

7. The visa applicant originally indicated that he wished to visit Australia for a period to 6 months in late 2017 to visit his brother (review applicant) and to attend a 10 week clinical bridging course at the Australian Medical Review Centre.  At the hearing the review applicant and the visa applicant stated that he was not seeking a stay of 3 months to attend the same course and to visit his brother. The visa applicant will fund his travel and expenses from his savings. The review applicant will provide him with accommodation during his stay.

   Evidence from the review applicant

8. The review applicant is an electronic engineer was granted a visa on skills grounds in 2012. He has since become an Australia citizen. After arriving in Australia he worked until he obtained a scholarship to complete a PHD at the University of NSW. He is currently completing his thesis.  He has recently married.

9. At the hearing the review applicant said that his parents and two of his brothers reside in Iraq. Their father is a chemist and both of his brothers are medical doctors. The review applicant, his wife and son, who was born about 8 months ago, live with his parents and maternal grandmother. Another brother is currently studying in the USA.  He said that none of his family members had yet visited him in Australia, but he would like to arrange this at some time in the future.

10. The review applicant confirmed that the visa applicant currently works at al Hilla Hospital. He said that until March 2018 he also worked at a pharmaceutical company, but he left this job to concentrate on preparing for the course he wishes to undertake in Australia. 

11. The review applicant stated that the visa applicant would like to migrate to Australia at some time in the future using his qualifications and skills as a doctor. In order to do apply he needs to obtain recognition of his qualifications and skills and the course he wishes to attend is part of his process.  The review applicant explained that the course was not the final step in obtaining recognition as his brother would also need to pass an examination. The next possible opportunity for taking this examination is not until 2020. 

12. I noted that the visa applicant’s application had been refused because the delegate was concerned that he would remain in Australia when the visa expired mainly because of the current political and economic situation in Iraq.  The review applicant said that he and his brother were aware that he must leave before his visa expired and that he could not apply for any visas while in Australia and his brother had no intention of remaining in Australia beyond the time permitted on his visa. In the first place, his wife and young child would remain in Iraq and he wanted and needed to return to be with them and provide with support. Secondly, he was considering following in the review applicant’s path and applying to migrate on skills grounds and was making arrangements to gain recognition of skills so he could lodge an application. He did not want to jeopardise the possibility of migrating legally in the longer term by breaching the conditions on his visa. Thirdly, the review applicant said that he understood that he might face consequences in relation to future sponsorship for family members to come to Australia and his brother would not do anything which would cause problems for him. He added that he would be happy sign any undertaking or to pay a significant bond to support his brother’s visitor visa application.

13. I advised the applicant that if his brother failed to comply with the conditions on his visa this would mean that he (the review applicant) would face restrictions on his ability to sponsor other family members to visit him in Australia and was likely to make it very difficult for the visa applicant and other family members to obtain visitor visas in future. I also advised him that while it was correct that his brother could not apply for most visas while he was in Australia he would be able to apply for a protection visa and this was clearly a significant concern for the delegate given the problems which Iraq had faced in the past and continued to face today. The review applicant said that the area in which his family lived was currently stable and nobody in his family had faced problems in recent years. He was adamant that his brother would not seek protection if he was granted a visitor visa. 

    Evidence from the visa applicant

14. The visa applicant has provided evidence of his employment as a doctor at al Hilla Hospital in Iraq, of savings of over $20,000 US and of his enrolment in the Australian Medical Review Centre. He has previously visited Saudi Arabia, India, Malaysia, the UAE and Turkey for work or for vacations.

15. At the hearing he said that his wife is also a medical doctor and works at a different hospital in Baghdad. He confirmed his current employment and his employer’s agreement that he could take leave without pay to travel to Australia to undertake the AMRC course. He also confirmed that he planned to apply to migrate to Australia on skills grounds if his qualifications are recognised. He said that the course was the first step in this process and that he hoped to return to Australia next year to undertake the required exams which were the next step in the process. He said that he was aware that if he was granted a visa he must leave Australia before it expires or there would be consequences for the review applicant and he and other family members would have problems obtaining future visas for Australia. In addition he wanted and needed to return his wife and young child in Iraq as they needed his support.

16. I noted that the delegate had refused his visa application because she was concerned that he would not return to Iraq mainly because of the political and economic situation there. I observed that this suggested that she was concerned that he might apply for protection while in Australia. The visa applicant said that he was not facing problems in Iraq and had no intention of applying for protection or remaining in Australia after his visa expired.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. In the present case, the visa applicant seeks the visa for the purposes of attending a 10 week course and visiting his brother. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

19. 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 visa applicant has not visited Australia previously and therefore cannot be assessed against his criterion.

20. 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.

21. The applicant plans to be in Australia for 12 weeks, 10 of which he will spend attending a course. He will be accommodated by his brother while in Australia and has demonstrated that he had sufficient funds to fund his travel and support himself during his visit. He has a relatively well-paid position to return to in Iraq. I am satisfied that he will not work or engage in study or training of more than 3 months during his proposed three months stay in Australia and therefore satisfied that he will comply with conditions 8101 and 8201.

22. Condition 8503 refers to entitlement and does not require compliance.

23. With regard to conditions 8531 the visa applicant’s wife and baby will remain in Iraq also has ongoing employment in his profession, both of his which provide a strong incentive for him to return to his homeland.  The visa applicant has longer term plans to apply to migrate to Australia using his skills. He was honest about his plans and is currently taking the steps necessary to reach this goal. He stated that he would need to return to Australia next year to sit for an examination which is required for recognition of his skills and indicated that he did not wish to jeopardise the possibility of migrating to Australia using his skills.  He stated that he understood that he could not remain in Australia beyond the three months of his proposed stay. He was clearly aware, at least in general terms, that there could be significant consequences for the review applicant and other family members if he failed to comply with the conditions of his visa and spoke convincingly about his desire to avoid these possibilities. With regard to the possibility of seeking protection he said that was not experiencing any problems in Iraq and had no intention of applying for protection in Australia. I found the visa applicant’s evidence regarding his intention to be generally forthright and convincing. I am satisfied that he will comply with condition 8531 and will not remain in Australia after the end of his permitted stay.

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

25. For the above reasons 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

26. 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.

    Roslyn Smidt
    Member