Al-Nuaimi (Migration)

[2019] AATA 2641

Al-Nuaimi (Migration) [2019] AATA 2641 (23 May 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tamarah Al-Nuaimi

VISA APPLICANT:  Mrs Khulood Shaoobi Ibrahim NOSH

CASE NUMBER:  1802270

DIBP REFERENCE(S):  BCC2018/124154

MEMBER:Linda Holub

DATE OF DECISION:  23 May 2019

DATE CORRIGENDUM

SIGNED:17 June 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 5 is replaced with:

The review applicant appeared before the Tribunal on 13 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

Paragraph 8 is replaced with:

The review applicant first came to Australia on a Global Special Humanitarian (XB-202) visa in March 2011.  She was born in Iraq in February 1982.  She became an Australian citizen in April 2016.  She obtained that visa as a dependent of her husband.  She stated that she was not expecting to talk about that visa but her husband applied for the visa because of the situation in Iraq.  He and the family were under threat.  The visa applicant is the mother of the review applicant.  She is a citizen of Iraq and is 63 years of age.

Linda Holub
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tamarah Al-Nuaimi

VISA APPLICANT:  Mrs Khulood Shaoobi Ibrahim NOSH

CASE NUMBER:  1802270

HOME AFFAIRS REFERENCE(S):           BCC2018/124154

MEMBER:Linda Holub

DATE:23 May 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 23 May 2019 at 4:17pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – to assist daughter with new baby – strong ties to Iraq – review applicant’s credibility – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 18 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 9 January 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 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 delegate was not satisfied that the visa applicant intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 13 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [insert details for persons who gave evidence (if any): ]. [: The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review.

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

BACKGROUND

1. The review applicant first came to Australia on a Global Special Humanitarian (XB-202) visa in March 2011.  She was born in Iraq in February 1982.  She became an Australian citizen in April 2016.  She obtained that visa .he husband was here and he lodged.  The situation in Iraq.  She wasn’t ready to talk about that visa. Her husband was under threat and your family were under threat.  The visa applicant is the mother of the visa applicant.  She is a citizen of Iraq and is 63 years of age.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

10) In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter and assisting during the delivery of her baby that was due on 19 May 2018. The visa applicant sought a visa for the period 1 May 2018 to 30 July 2018.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.  Travel for up to 3 months and during this period until September when there are school holidays in Iraq. 

11) 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)).

12) The visa applicant has not previously travelled to Australia.  The Department’s Decision Record states that the visa applicant’s previous Visitor visa applications were refused in September 2014 and May 2017.  She has travelled to Turkey and UAE for holidays within the last five years. 

13) At hearing the Tribunal heard oral evidence that the review applicant’s mother in law has travelled to Australia on two occasions.  Departmental records show that she travelled to Australia on Visitor (FA-600) visas in 2016 and 2018 and complied with her visa conditions.

14) 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)):

·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.

15) The review applicant words at the Qatar embassy.  She has been employed by the Embassy since 2012.  Her husband works in IT at the Embassy of the United Arab Emirates and has done so for the past two years.  Following the hearing she provided a copy of their pay slips confirming their employment.  The review applicant and her husband live in a house with their three children. They have a mortgage on the house and an investment property and no other debts.  They have two cars.  They have a small amount of savings.  

16) The visa applicant has been employed as a teacher since 1998. A copy of her Ministry of Education identification card was provided to the Department.  She owns the house in Baghdad in which she lives with her husband and her two sons also live there also.  Her application included a copy of the Property Deed showing that the visa applicant is listed as the sole one.  Her sons are aged 37 and 28 and she has three grandchildren and a further one on the way.  Her mother has savings of large amount of cash about $20,000 because the country doesn’t have secure banks.

17) The review applicant stated that she will provide accommodation, food, transportation and pay for the costs of the visa applicant’s flight.  Her mother will bring some funds with her. 

18) The review applicant referred to the visa applicant’s husband, two children, her grandchildren for whom she cares after school, her extended family and her lifestyle are incentives for her to return to Iraq after her visit if she were granted a visa.   She stated that the visa applicant would only be able to come during the school holidays.  All her family are there.  The review applicant also referred to the fact that the visa applicant does not speak and would feel very isolated in Australia.

19) The review applicant stated that the visa applicant has no intention of working or undertaking study or training if she were to come to Australia.  She stated that her mother’s intention is to visit the family, spend time with her grandchildren. She stated that a little family support over a few months will be helpful for the family because she only has one brother who in Australia who lives in Sydney and he is unable to assist here.

20) The Tribunal heard evidence that the visa applicant has not had any problems in Iraq for any reason and that she is in good health.

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

Findings

22) The Tribunal considered the review applicant to be a credible witness.  She presented the evidence in a straightforward and open manner and the oral evidence was substantiated by the written evidence.

23) The Tribunal accepts that the review applicant is willing and able to pay for the visa applicant’s airfare and will accommodate her during she stay.  The Tribunal accepts that the visa applicant’s husband, other children and grandchildren, her home, her property and her job, as well as her extended family and life provide strong incentives for her to return to Iraq after her visit.  The Tribunal accepts that she will not work, study or train while she is in Australia.  The Tribunal has given weight to the fact that she does not speak English.  Condition 8503 relates to an entitlement and does not require compliance.  The Tribunal put positive weight on the fact that the review applicant and her husband have sponsored another family member who complied with her visa conditions.

24) 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

25) 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:

Linda Holub
Member