Alyoussef (Migration)

[2018] AATA 1189

Alyoussef (Migration) [2018] AATA 1189 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Chada Alyoussef

VISA APPLICANTS:  Mrs Amal Kamhieh
Mr Fadelallah Alyoussef

CASE NUMBERS:  1730377

1730382

DIBP REFERENCE(S):  BCC2017/3172441

MEMBER:Linda Holub

DATE:12 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 13 March 2018 at 5:09pm

CATCHWORDS
Migration – Visitor (Class FA) – Subclass 600 (Visitor) – Whether the applicant genuinely intends to visit Australia temporarily – Sponsored Family stream – Significant ties to home country – Advanced age – Limited incentives to remain in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, Schedule 8, Conditions 8101, 8201, 8503, 8531

STATEMENT OF DECISION AND REASONS

APPLICATIONS FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 September 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 31 August 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because after considering the evidence the delegate was not satisfied that the applicants genuinely intend to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 20 February 2018 to give evidence and present arguments. 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 matter should be remitted for reconsideration.

BACKGROUND

1. The review applicant was born in Damascus, Syria on 1 July 1979. She first came to Australia on a Prospective Marriage (UF0300) visa in 2001 and was granted a Partner (BC-100v visa) in March 2003. 

2. The visa applicants are the review applicant’s mother and father who applied to travel to Australia together.  They were born in Syria in January 1956 and January 1949.  They both have both resided in Paris, France since September 2014.  On 19 December of that year, they received Subsidiary Protection by the French Government[1].  According to oral evidence provided at hearing, the visa applicants have one daughter living in Homs, Syria has, one in Sweden, one in Canada and a son who also resides in Paris.

   [1] AAT file, folios 51-53 page 2.

3. The review applicant completed a retail baking course last year and the commencement of the 2018 school year began working in a school canteen at a local school.  She is employed part-time.  Her husband is employed by the Department of Education as a transport support officer for children with special needs.  She stated their family income is $50,000 per annum.  She provided a copy of her husband’s bank account statement showing January/February 2018 balances varying between $138,011 and $141,758[2]. The review applicant and her husband have 3 children.  They reside in a three bedroom duplex.  They own both halves of the duplex and rent out the other side. 

   [2] AAT file, folio 54, page 2.

CONSIDERATION OF CLAIMS AND EVIDENCE

10) 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.

11) In the present case, the visa applicant seeks the visas for the purposes of visiting the review applicant and her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12) 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 first named visa applicant has previously travelled to Australia in 2005.  She was granted a Tourist (TR-676) visa on 21 December 2004.  She arrived on 17 January 2005 and left on 31 March 2005.  Her visa was valid until 17 April 2005.

13) The Tribunal must also consider whether the visa applicants intend 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.

14) The review applicant stated that she and her siblings will pay the airfare of the visa applicants and she will cover the cost of the living expenses during their visit.  Her two daughters would share a room so that the visa applicant and her husband can have their own room.

15) There is nothing in the evidence before the Tribunal which suggests that the visa applicants would seek to work or study during their proposed visit.  The Tribunal put weight on age of the applicants the fact that the visa applicants do not speak English. The Tribunal is satisfied they will comply with conditions 8101 and 8201.

16) The review applicant stated that her parents are in good health, although her father does take an aspirin daily for blood thinning.

17) Condition 8503 refers to entitlement and does not require compliance.

18) The Tribunal discussed the visa applicants’ arrangements in France, noting that they have not been assessed as refugees and do not have permanent residence there. The review applicant explained that both her parents received Subsidiary Protection from the French government and have been provided with subsidised housing that is close to their son.  Written evidence provided to the Tribunal supports this claim[3].  She explained that their status is renewed annually.

[3] AAT file, folio 48, page 2.

19) Prior to the war in Syria, she travelled to the country every two years but has not been back since 2009 because the war started the following year.  She stated that she wants her parents to visit so her children can build some memories of having spent time with their grandparents in their own setting.

20) The review applicant stated that the incentives for her parents to return to France are the fact that they have already been granted Subsidiary Protection by the French government, have been provided with accommodation and the equivalent of a state pension.  She said they are close to their son who lives nearby.  They can also freely travel in Europe and have visited their other daughter who lives in Sweden.  They have done so on several occasions.  Evidence was provided to this effect[4]. 

[4] AAT file, folios 54-56.

21) The review applicant stated that her parents would not jeopardise that level of security and certainty they have for the possibility of obtaining protection in Australia.  She stated that they have already gone through the difficult process of establishing a new life, making new contacts and trying to learn French and that at this stage of their lives it would be difficult for them to attempt to do that again.  She pointed out that her mother did not attempt to change her visa status on her previous trip and even though it pre-dates the war, she could have attempted to do if she wanted to remain in Australia.  She did not.

22) The Tribunal considered the review applicant a credible witness.  She presented the evidence in a straightforward and open manner and provided written evidence in support of her oral evidence.

23) Having considered all the evidence the Tribunal accepts that the visa applicants wish to come to Australia for 3 months for the purpose of visiting the review applicant and her family.  The Tribunal accepts that that the review applicant is prepared to pay the costs of supporting the visa applicants during their stay and that her siblings will assist with the airfare. The Tribunal accepts that the visa applicants have no intention of working, studying or undertaking any training in Australia. The Tribunal accepts that the visa applicants’ right to Subsidiary Protection in France, as well as their supported accommodation and other benefits and their son residing in France and other daughter residing in Sweden provide strong incentives for them to return to France at the end of their permitted stay in Australia.  The Tribunal has put some weight on the fact the applicants have already had to settle in and learn the language of a new country since their time in France.  The Tribunal accepts that the visa applicants intends to comply with the conditions of the visa

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

25) For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

26) The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Linda Holub
Member