Aletki (Migration)

[2017] AATA 1076

Aletki (Migration) [2017] AATA 1076 (15 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nahla Aletki

VISA APPLICANT:  Nahla Dib

CASE NUMBER:  1700162

DIBP REFERENCE(S):  BCC2016/3974021

MEMBER:Roslyn Smidt

DATE:15 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 June 2017 at 4:21pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Genuine temporary stay in Australia – Limited personal ties to Syria  – Overall situation in Syria uncertain – Significant incentive to remain in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 - cl 600.211, cl 600.231

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 21 December 2016 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 23 November 2016. 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 he found that her limited personal commitments and ties in Syria provided little incentive for her to return home while the current situation in Syria, where much of the country was experiencing civil disruption including war, lawlessness and political upheaval provided a significant incentive for her to seek to remain in Australia.

5. The review applicant appeared before the Tribunal on 14 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   BACKGROUND

7. The visa applicant is the review applicant’s niece. She initially applied for a visa to visit her aunt from 1 December 2016 to 1 January 2017, but also indicated that she wished to remain in Australia for three months. At the hearing the review applicant said that her niece wished to come for between one and three months. The visa applicant said that she wished to come for three months. The review applicant said that she would pay for her nieces’ travel and support her while she is in Australia.

8. The review applicant said that she had invited the visa applicant to visit her in Australia because she was the oldest of her nieces and nephews and the most interested in coming to visit. She also said that her children had become attached to the visa applicant when the visited Syria with her recently and were keen to see her again.

   The visa applicant

9. The visa applicant is an 18 year old woman. She is a follower or the Allawite faith and lives with her parents and three younger brothers in Tartous which is on the coast, has an Allawite majority and has not been affected by the violence and civil unrest which has caused problems in other parts of Syria. Her family derives their income from farming. She recently finished high school.

10. At the hearing the Tribunal noted that her application had been refused at the primary stage because the primary decision maker was concerned that she would not return to Syria at the end of her stay. The visa applicant said that she came for an area which was peaceful and she would not return home because her family was in Syria and she wished to continue her studies. When asked she said that she did not have any relationships outside her family which would provide an incentive for her to return, but she was close to her parents and siblings and did not want to leave them.

11. The review applicant

12. The review applicant is a 42 year old single mother with three children, ten year old twins and a two year old. She arrived in Australia in 1998 on a spouse visa. She has a brother in Australia who arrived some 17 or 18 years ago on a spouse visa. Her parents are deceased. She had one sister and four brothers remaining in Syria. She does not work outside the home.

13. At the hearing the Tribunal noted that visa applicant‘s application had been refused at the primary stage because the primary decision maker was concerned that she would not return to Syria at the end of her stay. The review applicant said that her niece only wished to come to visit and would definitely return at the end of her stay as she was close to her family and she was still very young and would not be able to remain apart from them for an extended period. She said that her niece had also told her that she was in a relationship with someone which was serious and might lead to marriage. She did not know the name of the man involved. As noted, the visa applicant stated at the hearing that she was not involved in any relationships which would provide an incentive for her to return home. When asked to comment on this apparent discrepancy the review applicant said that her niece had not told her parents about the relationship and would have not have been able to speak about it as they would have been in the room with her while she gave her evidence.

14. The review applicant said that she was confident that her niece would return home because she (the review applicant) was a single mother and could not provide for her or take responsibility for her in the longer term.

15. The review applicant noted that the primary decision maker had been concerned about the violence and unrest in Syria, but said that this was not the situation in Tartous. She pointed out that she had visited the area twice recently with her children which she would not have done if the area was not safe.

16. The review applicant said that she did not have the funds to provide a bond in support of her niece’s visa application, but she would be able to borrow about $5,000 if necessary.

17. The review applicant said that she had previously sponsored a cousin to visit her in Australia. She first came in 2007 when she was aged 39 and single and returned for a second visit in 2009 when she was married. One both occasions she complied with all the conditions on her visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

19. 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.

20. After considering all of the evidence, the Tribunal is not satisfied that the visa applicant holds such an intention. While the Tribunal accepts that she is close to her family, she has no dependents, responsibilities or commitments which would require her to return to Syria. While it may be that she wishes to engage in future studies she is only 18 years old and could potentially achieve this goal and build a new life outside Syria.  Furthermore, while the Tribunal acknowledges that Tartous has not been affected by the violence which is continues to cause serious problems in much of the country, the overall situation in Syria is uncertain and provides a significant incentive for Syrians to seek to leave and remain outside the country.

21. In addition, while the Tribunal accepts that the review applicant would be able to fund the visa applicant’s travel to Australia and support her during a brief stay, it is difficult to understand why she would expend her clearly limited resources bringing her niece to Australia for a holiday. While the Tribunal would not have refused the visa applicant’s application for this reason alone, it is a further indication that the visa applicant intends more than a temporary stay in Australia.

22. For the above reasons the Tribunal is not 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 not met.

    DECISION

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

    Roslyn Smidt
    Member