Al Kasab (Migration)

[2018] AATA 445

Al Kasab (Migration) [2018] AATA 445 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Saad Al Kasab

VISA APPLICANT:  Mrs Najah AL TUJJAR

CASE NUMBER:  1803153

DIBP REFERENCE(S):  BCC2017/4584300

MEMBER:Stavros Georgiadis

DATE:1 March 2018

PLACE OF DECISION:  Adelaide

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 01 March 2018 at 3:56pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Visa applicant – Review applicant’s Mother – Planning to visit family members – First visit to Australia – Travelled to other countries – Offered a bond as security against any non-compliance – Adequate funds to cover travel – Close family members overseas –

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 600.211, 600.221, 600.222, 600.611 Schedule 8 Conditions 8101, 8201, 8505, 8503

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 28 January 2018 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 3 December 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 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. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate considered the applicant did not genuinely intend to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 1 March 2018 to give evidence and present arguments.

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

   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 applicant is the review applicant’s mother. The applicant’s family is from Syria where they lived in the central area of Maysaat in the city of Damascus.  The review applicant relocated from Syria and has lived in the United Arab Emirates (Dubai) for over 14 years.  He was granted an Australia Permanent Resident Subclass 190 visa on 5 January 2015 as confirmed in the Department’s movement details. The review applicant and his wife and children have been living in Adelaide, South Australia since October 2015.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her son and his family (spouse and the 2 children) in Australia and to tour parts of wider Adelaide and South Australia. This is a purpose (visiting a close relative) for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

11. 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.600.611(2) to (4)):

    ·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.

12. The applicant has not previously travelled to Australia. There is therefore, no evidence either way of any non-compliance or compliance with prior visa conditions attached to an Australian issued visa. The review applicant told the Tribunal however, that his mother had travelled extensively outside of Syria and also outside and back to her current home in the UAE.

13. The Tribunal notes the written submissions and oral evidence that after Syria, the visa applicant lived in Germany for a number of years together with her husband and other family members.  As a consequence she learned to speak German reasonably well, better than her command of English. Her son, Ahmad Husam, was born in Germany.  She left Germany in the early 1980s. She has visited France, Spain and Austria many times. Her husband passed away in around 2008.

14. The review applicant told the Tribunal that his mother’s last visit to Austria was together with him in 2005 at which time the applicant’s brother in Vienna had invited them to attend his daughter’s wedding. The review applicant’s oral evidence is that on each occasion abroad, his mother has complied with the visa conditions imposed on her travel.  He added that his mother had discussed with him that she would ensure she complies with the conditions of her proposed visit to Australia as she wants a clear record and to not jeopardise any potential future visits to Australia by having any record of non-compliance. 

15. The visa applicant’s most recent visits to Syria were for a period of 10 days from 25 November 2014 and 4 days from 9 December 2016 respectively. The oral evidence and submissions before the Tribunal are that she had no difficulty entering and leaving Syria on each occasion and was able to return to her home in UAE where she has residency status. The review applicant told the Tribunal, when asked, that there is no reason why his mother (or indeed any member of his family) would seek a protection visa (or complementary protection) in Australia as there is no ground for this whatsoever.  The review applicant added that they are free to come and go from Syria, the airport is open for flights in and out and that the central Maysaat area in Damascus where his mother has lived is secure.

16. The Tribunal notes that the applicant is seeking up to three months (but more likely three weeks) visit to Australia. The Tribunal notes also the applicant’s offer of a bond as security to guard against any non-compliance.  The Tribunal has given weight to the circumstances that the visa applicant has numerous other close family members living in the UAE. This includes her younger son, Muhamad Al Kassab, with whom she resides in the same household; her brother who is in the UAE on an Investment visa; her elder son, Ahmad Husam Al Kassab, who is living with his wife and two children in the UAE; and other relatives including nephews and cousins in addition to the grandchildren and other close relatives described above.  The Tribunal considers this acts as considerable incentive for the visa applicant to return to the UAE to continue to live there with the close members of her family. 

17. The Tribunal is persuaded that in light of the above evidence discussed and declarations made as part of the application for the visa, the evidence points to the applicant not remaining in Australia after the end of the permitted stay, in accordance with condition 8505.  The Tribunal also considers the evidence points to the applicant complying with condition 8503 as it recognises that she is not entitled to a substantive visa, other than a protection visa, while remaining in Australia.

18. In respect of conditions 8101 and 8201 relating to no work or study / training in Australia, the Tribunal notes in particular, the visa applicant’s advanced age of 77 years (DOB 15 November 1941). The applicant has three properties of her own in Syria which she rents out to derive an independent income.  Her brother there is able to send her money from these rental properties although she has collected accumulated rent during the two recent visits to Syria since residing in UAE from 2013.  Although all travel costs, accommodation, food and transport expenses for the proposed visit to Australia will be met by the review applicant’s family, the Tribunal is satisfied that the visa applicant has sufficient means to meet the costs of travel for her proposed visit to Australia and then return to her home in the UAE. The Tribunal accepts that the review applicant has capacity to provide such support from his employment as an Environmental Officer at a leading Private Hospital in Adelaide, South Australia and accepts that such assistance will be provided to the visa applicant during her temporary stay in Australia.

19. In light of the visa applicant’s advanced age of 77 years, her lack of English, her independent financial means, the purpose of the visit, declarations made, and the evidence discussed, the Tribunal finds that the visa applicant will comply with the conditions: 8101 (must not work in Australia); and 8201 (must not engage in study or training in Australia for more than 3 months) noting her visit is proposed to be limited to three months in any case.

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The review applicant submits that he recently fractured his eye socket in a sporting injury that required surgery. He submits this had caused driving restrictions and that he would need to rely on his mother, as his wife has ‘now carried everything by herself’. The review applicant proposed that his mother would come to visit his family before his birthday on 18 January 2018 which has now passed, but proposed then that his mother would return to the UAE around one month later before the expiry of her UAE residency visa on 4 March 2018. There is now evidence before the Tribunal in the form of a newly issued visa, that the visa applicant has approved legal residency rights in the UAE extended to 13 February 2019. In light of this and the oral evidence before it, the Tribunal accepts that the visa applicant will be able to return to the UAE after her proposed temporary visit to Australia as she has residency entitlements there.  Although the visa applicant also has a Syrian passport valid until 27 February 2023 the Tribunal accepts that there is presently no plan or intention to return permanently to Syria given the recent civil war there and the substantial unrest in parts of the applicant’s home country.

21. In a further relevant development, the review applicant’s spouse has been recently diagnosed with a heart condition and has decided to undertake surgery at Flinders Medical Centre, South Australia on 14 March 2018.  There is medical evidence before the Tribunal from Cardiologist, Dr Fahd Chahadi by way of letter dated 13 February 2018 to confirm this.  She also has other surgery proposed to be undertaken at the Queen Elizabeth Hospital, SA in late March 2018 or early April 2018. Both surgeries entail only one night’s stay in hospital (each) and a short period of convalescence at home following the surgery.  The submission is that the visa applicant plans to travel to Australia around 12 March 2018 and will stay to assist her family for the short period of convalescence by the review applicant’s wife.  The review applicant’s oral evidence is that she plans to return to UAE not later than early April 2018 and in any case, less that a three month stay in total. The Tribunal notes the initial application for a period of up to three months which is not inconsistent with the amended planned period of stay.

22. Having regard to all the evidence before it discussed, the Tribunal finds that the applicant will not remain in Australia after end of her permitted stay and indeed will comply with all of the conditions attached to her proposed Subclass 600 (Visitor) visa. 

23. 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

24. 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.

    Stavros Georgiadis
    Member