Alhajja (Migration)

[2024] AATA 3837

Alhajja (Migration) [2024] AATA 3837 (6 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Baraa Alhajja

VISA APPLICANT:  Mrs Nezha Alkahil

CASE NUMBER:  2305996

HOME AFFAIRS REFERENCE(S):          BCC2023/1439763

MEMBER:Justin Meyer

DATE:6 September 2024

PLACE OF DECISION:  Melbourne

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 06 September 2024 at 4:13pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit Australian family members – no negative visa breach history – social and financial circumstances and studies point towards return – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 Home Affairs on 22 March 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 1 March 2023. 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 (Cth) (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 was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out and not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.

5. The review applicant appeared before the Tribunal on 13 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ali Dargham, the husband of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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. 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.

9. 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)).

10. There is no evidence of non-compliance with conditions of previously held visa.

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 600.612):

    ·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.

12. There is no evidence that these will be breached and my discussion below refers.

13. In the application, the applicant declared the purpose of her stay in Australia as visiting her   daughter, several grandchildren and son in law in Australia and that she intended to stay for a period of up to three months.

14. The applicant provided evidence that she had travelled to Saudi Arabia, Jordan and Australia.

15. The applicant has not declared any family members in her application who will remain in their home country during the applicant’s proposed visit to Australia,

16. However, as noted by the delegate, the applicant’s daughter declared the applicant’s children and their family.

17. Evidence submitted to the Tribunal includes screenshots of mobile messages phone of money transfers sent to by sponsor to applicant in Syria through the receiver, her sister Taghrid Alhaja.

18. The applicant declared that she has been;

    “transferring money to my mother in Syria for the last 5 years. I always sent the money to my sister Taghrid as my mother is an old lady and my sister gave the money to my mother. I did not keep evidence of the official money transfers as I depended on a family friend to do it on my behalf and he was sending me the messages that I attached. My mother intends to visit Australia for a shot stay and will obey all her visa conditions. I have not sponsored any visitor visa applicant before and this is the first time I am sponsoring my mother; I am fully aware of my responsibilities as a sponsor and will provide all the costs involved with my mother's visit including her private health cover.”

19. Transfer and purchase agreement of a property in Syria owned by her mother was enclosed with a translation.

20. An Australian bank account record in the sponsor’s husband’s name with a five figure sum was submitted as evidence of ability to support the trip.

21. The visa applicant wishes to visit her daughter in Australia, the review applicant (sponsor).

22. The review applicant (sponsor) told the Tribunal that the intention of the visit was for her mother to see her and her five children in Australia. The last such trip had been ten years ago, where he mother returned after five months of a planned six month visa stay.

23. The pandemic had removed the chance of travelling for a long time she said.

24. This planned stay would be for up to three months the review applicant (sponsor) said.

25. There was incentive to return to Syria. All the review applicant (sponsor’s) siblings are there. This includes an unmarried brother there.

26. Her mother is in good health she takes diabetes medications.

27. The review applicant (sponsor) has brothers in Jordan, Saudia Arabia and Sweden. The brother in Sweden had a refugee claim of unknown details.

28. The family all follow Islam she said. They are not from any Islamic minority. They are from Homs. It is peaceful there at present. Her mother has her own home and she is financially comfortable. The review applicant (sponsor) did not want to visit Syria however as she did not want her children to see the traces of the destruction there from past military conflict.

29. Her mother had been to Saudi Arabia and Jordan but had always gone back on time in accordance with permissions.

30. The review applicant’s (sponsor’s) husband gave evidence that he would be prepared to give a bond guarantee for the return of his mother-in-law on time. He said he had a good family record and had always abided by the law. They had worked in Australia, were Australian, and this was home.

    Analysis

31. The Tribunal is satisfied that there are incentives to return for the applicant. Property information has been provided to the Tribunal. The visa applicant has a plausible reason for visiting Australia and has no negative visa breach history.

32. His daughter and family are prepared to accommodate her and the family is prepared to pay a security bond to reinforce the genuineness of her entry.

33. The overall impression was of an applicant who wishes to see family who has several incentives to return including an apparently stable financial and family situation.

34. Having examined the parties’ information I find that the visa applicant has various incentives to return and is someone who would be a temporary entrant to Australia.

35. Her social and financial circumstances and studies point towards return, the economic situation in his home country raises no specific concerns to her nor does social unrest or conflict impacting specifically upon her. Although Syria has been marred by war and devastation the visa applicant does not appear to be from a vulnerable minority or politically active group.

36. The purpose of an applicant's visit to Australia is credible, including the proposed duration of stay (less than three months) and intended activities in Australia. The duration is understandable given the circumstances.

37. I accept that the intention of the trip to Australia is to visit Australian family members.

38. There is no evidence of any visa non-compliance from the visa applicant or indeed anyone in the family. There is no evidence of a desire for any other visa, work or study in Australia or a lack of interest in being present for family in Vietnam.

39. There is no substantial evidence before me to support a contention that the visa applicant will not genuinely intend to stay temporarily in Australia.

40. The Tribunal has also considered all other relevant matters (cl 600.211(c)). While incomes are higher on average in Australia, it is not apparent that this is a motivator for this visa applicant.

41. 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

42. 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.

    Justin Meyer
    Member