Alsaate (Migration)

[2024] AATA 839

Alsaate (Migration) [2024] AATA 839 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hayder Baqer Abdulnabi Alsaate

VISA APPLICANT:  Ms Saja Baqer Abdulnabi Alsaati

CASE NUMBER:  2303609

HOME AFFAIRS REFERENCE(S):          BCC2023/221448

MEMBER:David Crawshay

DATE:8 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 08 April 2024 at 8:10am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting family – genuine temporary entrant and compliance with conditions – incentives to depart or remain – single and living with parents – sponsor brother and extended family living in Australia – employment and savings – no confirmation by employer of leave entitlement – applicant’s recent compliant travel to another country – sponsor’s previous sponsorships of parents on various temporary visas and offer of security bond – no appearance at hearing by applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Schedule 8, condition 8531

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 10 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 12 January 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 visa 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 the delegate was not satisfied that the visa applicant genuinely intended to stay here temporarily for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 6 March 2024 to give evidence and present arguments.

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

   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 she has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by her was subject; whether she intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present matter, the visa applicant seeks the visa for the purposes of visiting family. The review applicant told the Tribunal at hearing that he wanted to bring the visa applicant here to visit his children and spend time with them. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231. However, while the Tribunal accepts that the visa applicant may have a desire to travel to Australia for these purposes which are on their face genuine, it must also be satisfied that she genuinely intends to stay temporarily here for these purposes and not for purposes that would entail her remaining in Australia after the cessation of any visitor visa granted to her or that would result in her not complying with conditions of her visa.

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)). The visa applicant has not held a visa to travel to Australia, and no weight is attached to this aspect either way.

10. 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 three 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.

11. There is no information other than that the visa applicant intends to comply with condition 8101 relating to no work and condition 8201 relating to no study or training for more than three months. These aspects are given some weight.

12. Condition 8503 is an entitlement and is not capable of being satisfied.

13. Condition 8531 is considered below.

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has considered the visa applicant’s employment circumstances. It heard at hearing from the review applicant who told it that the visa applicant graduated from engineering but found it hard to get a job in that field. He told it that she became a teacher and was loving it. He said that her English was “not bad” but then said that she was actually good and that her reading, writing and listening were good. The Tribunal accepts this information.

15. Based on documents provided by an entity that identified itself as her employer, the Tribunal accepts that the visa applicant has been employed at an academy in Baghdad as a chemistry teacher since 1 April 2023 and receives 1,500,000 IQD per month (equivalent to $1,740 as at 5 April 2024).[1] This aspect is given some weight as being an incentive for the visa applicant to return.

    [1] >

    In terms of the visa applicant’s financial circumstances, the Tribunal notes that the review applicant has provided a screenshot of the available balance on a “MasterCard ISC Travel” account, showing a balance of 2,047,445 IQD (equivalent to $2,377 as at 5 April 2024).[2] However, no name was provided for that account and the Tribunal is not satisfied that it belongs to the visa applicant. Very little weight is attached to this aspect as being an incentive for the visa applicant to return.

    [2] >

    The Tribunal has considered the visa applicant’s personal circumstances. Based on the review applicant’s testimony at hearing, it finds that the visa applicant is single and lives with her mother and father. Based on the visa application form, it finds that his mother is 51years old and his father is 65 years old. In an undated letter provided with the application for review form on 14 March 2023, the review applicant claimed that the visa applicant wanted to take care of her parents and that was why he wanted her to travel with her parents. However, no further information was provided, including from the visa applicant herself, that would substantiate that she needs to care for her parents. As a result, while the Tribunal accepts that the visa applicant might be living with her parents as someone who is single, it does not accept that one of the reasons she is living with them is because she needs to act as their carer. While some weight is given to evidence that the visa applicant is living with her parents, this weight is limited.

16. In terms of the presence of other family in Iraq and Australia, the Tribunal accepts that the visa applicant has two sisters living in Iraq. It finds based on the visa application form dated 12 January 2023 that she has a brother, the review applicant, living in Australia as well as an aunt, five cousins, one niece and three nephews. It accords some weight to the presence of close family members in Iraq as an incentive for the visa applicant to return there after the cessation of any visitor visa granted to her, although this weight is offset somewhat by having her brother and his family as well as several members of her extended family in Australia.

17. The Tribunal has considered the visa applicant’s travel to other countries. At hearing, the review applicant told it that she recently travelled to Saudi Arabia for two weeks with her parents. While the Tribunal accepts that she may have undertaken such travel, although no documentary information was submitted to substantiate such travel, it finds that Saudi Arabia does not provide the same or similar inducements in terms of family as Australia does. This aspect is given very little weight.

18. The Tribunal has considered assurances given by the review applicant before and at hearing. It notes claims made by him in the undated letter and at hearing that he is willing to provide a sizeable bond as security, although it also notes that he has not provided sufficient information to substantiate that he can cover the bond amount provided by him. It has also considered that the review applicant has been acting as sponsor for his mother and father on various temporary visas (including his mother on a Sponsored Parent (Temporary) (Subclass 870) visa.

19. However, even if the Tribunal were to be satisfied that the review applicant was able to pay a security bond, the compliance effect of such a bond and the ability of the review applicant to ensure that the visa applicant returns will ultimately depend on the subjective intention of the visa applicant to stay temporarily in accordance with the visa and to comply with the conditions of the visa. Unfortunately, no information from her on her intentions was forthcoming as she did not attend the hearing, in spite of the Tribunal’s request for her to do so. It does not accept that she was precluded from attending because of “problems with the internet” as there was always provision for her to attend via telephone. This aspect is given very little weight.

20. Finally, the Tribunal has considered the length of the visa applicant’s intended stay. At hearing, the review applicant said that she intends to stay here for six months. It put to him that this seemed incompatible with her role as a teacher. He replied that the school holidays were three months. When it asked him if she had built up the entitlement for the extra leave, he replied that she had.

21. The Tribunal has considered the information in front of it. While the six-month stay in Australia proposed by the review applicant at hearing is less than the nine-month stay requested by the visa applicant in the visa application form, the Tribunal retains significant concerns that it is incompatible for someone who is a teacher and who has only been with her employer for one year. In these circumstances, it would have liked to have received written confirmation from her employer about her leave entitlement or at the very least a written statement from her or oral testimony at hearing. In the absence of this information, the Tribunal does not accept that the visa applicant is entitled to take leave for six months. This aspect is given weight of an adverse nature.

    CONCLUSION

22. The Tribunal has considered the information in front of it when assessing whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This involves it weighing the incentives for her to return to Iraq against the risk that she will remain here after the cessation of any visitor visa granted to her or will otherwise not comply with the conditions of that visa during this period.

23. While the Tribunal accepts and gives weight to information showing that the visa applicant intends to comply with no work and no study conditions of her visa, is employed as a teacher and has family in Iraq in the form of her parents and sisters, it has weighed this against information showing that she has other family members in Australia including the review applicant and members of her extended family. As above, it is concerned that the length of her stay in Australia is not compatible with being a teacher who has worked one year with her current employer. It has also given little weight to her financial circumstances in the absence of substantiating information. It has given little weight to her previous travel which was to a country that does not offer the same or similar incentives in terms of family. Finally, it has given little weight to the review applicant’s assurances about enforcing the visa applicant’s compliance with the visa in the absence of any information from the visa applicant herself about her intentions.

24. In circumstances where the visa applicant is required to satisfy the Tribunal that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, she has not done so. The risk of her overstaying is not outweighed by the incentives for her to return.

25. Based on the above information and findings, the Tribunal finds that the visa applicant does not meet the requirements of cl.600.211.

    DECISION

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

    David Crawshay
    Member