Barhoum (Migration)

[2024] AATA 1220

Barhoum (Migration) [2024] AATA 1220 (16 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Barhoum

VISA APPLICANT:  Mrs Jamileh Abo Abbad

CASE NUMBER:  2304643

HOME AFFAIRS REFERENCE(S):          BCC2023/1410997

MEMBER:Linda Holub

DATE:16 May 2024

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 16 May 2024 at 2:47pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – incentives to depart or remain – former permanent resident who returned to home country many years ago – elderly mother, apartment, farm and volunteer work – self-funded travel with Australian citizen child, so applicant and all her children will be in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211(a), 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 Home Affairs on 28 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 28 February 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 the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out.

5. The review applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and is two sisters. 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 Westmead, Sydney in 1998 and is an Australian citizen. He is the son of the visa applicant who was born in Tartous, Syria in 1962 and is a citizen of Syria. According to information provided, she is married and retired in February 2022.

2. In the review applicant’s Statutory Declaration of 22 January 2023 and provided to the Department, he states that his sister Suzy Barhoum, who is an Australian citizen is in Syria completing a two-year internship as a dentist in order to open her own clinic. He wrote that she is entitled to 60 days holiday and is considering travelling with the visa applicant should the visa applicant be granted a Visitor visa.

3. It further states that the visa applicant, was granted Australian Permanent Residency and arrived in Australia in early 1998. She remained in the country for nearly five years, during which time she gave birth to the review applicant in Westmead, Sydney. She moved back to Syria to look after her mother following the death of her father.

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 visa for the purposes of visiting the review applicant and his sister. 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)).

13) Departmental records show that following her departure from Australia in May 2002, the visa applicant has not returned to Australia. There is no evidence before the Tribunal that the applicant did not comply with the conditions of her previously granted visas.

1. 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.

Evidence before the Tribunal

15) In addition to identification documents, the Tribunal was provided with:

·translated and untranslated copies of the visa applicant’s Syrian Arab Republic real estate registration (apartment) showing that she holds the title to an apartment in Tartous.

·translated and untranslated copies of the visa applicant’s Syrian Arab Republic real estate registration (farm).

·translated and untranslated copies of the visa applicant’s Syrian Arab Residence Permit.

·a statement of service in respect of the visa applicant’s volunteer activities, prepared by HR Business Partner at the Loving Children Association, Syria, dated 30 March 2023. It states that she volunteers one or two days each week and she commenced her role at the association in June 2019.

·Statement of the visa applicant declaring the support she provides to her mother, signed and witnessed 29 March 2023.

·Australian passport of the review applicant’s sister, Suzy Barhoum, and a copy of her Syrian Arab Republic, Syrian Dental Syndicate identity card.

·translated and untranslated copies of a limited rental contract & rental allowance, rented by Suzy Barhoum for the period 28 January 2021 until 27 October 2023.

·            a statement of the visa applicant, signed and dated 30 March 2023.

16) In her statement the visa applicant outlined that she wishes to visit Australia to spend time with the review applicant and his sister who returned to live in Australia in 2017. She stated that she needs to return to Syria after that as she is the primary carer of her mother and also supports her mother financially. She stated her mother requires continuous support and as she is the only daughter, her mother can only stay with her. She also referred to her volunteering role at an association which looks after disabled children that she would like to continue supporting them by volunteering for the association.

17) The visa applicant also referred to the fact that she resides in an apartment she owns and that she also owns a land/farm full of plants and olive trees. She stated that these assets are important to her and require her presence in Syria.

18) In her application she states she intends to visit Australia for a period of up to three months. While in Australia she will be staying with the review applicant and has sufficient savings to support her during the visit.

Oral evidence at hearing

Evidence provided by the review applicant

19) The review applicant confirmed that only he was born in Australia. He stated his father was an Australian citizen and he confirmed his mother returned to Syria after living in Australia for several years because of the death of his grandfather. He stated that his father lives in Sydney but visits Syria from time to time and stays for a maximum of two to three weeks. He stated that his parents are still married but there are problems between the two of them. The review applicant explained that his father came to Australia on a Partner visa sponsored by his first wife. He stated he sees his father occasionally.

20) When asked why he returned to Australia in 2017, the review applicant stated that he came to Australia, to put his life in order and to be independent. He stated that he wanted to be able to work, have money and open his own business. His sister Rina returned to study.

21) The review applicant stated he lives in rental accommodation with some young men. His only assets are his car. He stated that he works full-time in formwork. He stated that he and his sister Rina will take care of everything. He stated he will rent a different apartment for the duration of the visa applicant’s visit. He stated that his sister Rina is studying to be a doctor at Deakin University and lives with a female friend

22) The review applicant stated that the visa applicant would not stay for longer than six weeks. He stated that the intention is for his sister Suzy to travel with the visa applicant so they can all be together and because Suzy cannot leave her mother alone. He stated that the visa applicant is not young, and Suzy doesn’t want to leave her in case she needs anything.

23) The review applicant explained that he is thinking of proposing to a girl and he wants his mother and sister to meet her before he does so. When asked if the visa applicant and his sister could meet the girl at separate times, he responded that because Suzy has a specific time off work for her holidays, she cannot leave the visa applicant behind and that he cannot get engaged or propose twice.

24) The review applicant stated that prior to her retirement the visa applicant was a manager for her maternal uncle who owned a showroom for home equipment and construction materials. She retired in February 2022 because the uncle wanted to change the business.

25) The review applicant stated that the visa applicant lives with his sister, Suzy and she cares for her mother. He stated she is an only child and so holds the responsibility for her care. He stated that when they travel to Australia his mother can arrange for someone to care for his grandmother.

26) In relation to the incentives for the visa applicant to return to Syria, the review applicant stated that his grandmother is still alive and visa applicant is her only guardian. He stated that his sister is working and studying, and his mother would not leave her by herself. He stated that the visa applicant also owns some land and property in Syria, and she cannot leave it behind because he and his sister Rina reside in Australia and there would be no one to take care of it. There is some seasonal agricultural production undertaken on the property. I put it to him that the visa applicant could sell those assets, to which he responded they are held in her name, and she won’t be selling. I put it to him that the fact of them being in her name, it does not preclude the visa applicant from selling them. In his response, the review applicant did not specifically address the issue put to him but stated that she only wants to come for a visit. He stated that she doesn’t want to live in Australia and repeated that she has her mother and daughter to care for.

27) The review applicant stated that they had to convince the visa applicant to even come for a visit. He stated that when she originally migrated to Australia she wasn’t happy here, which was part of the reason she decided to return to Syria. He stated that he and his sister Rina have been living in Australia for a number of years and he has not seen his mother for two years but the main thing that convinced her was his intention to propose. He added that had his mother wanted to remain in Australia she could have returned when she held permanent residency. He stated that since 2001 when she has returned to Syria, she has not sought to travel to Australia.

28) I referred to a statement made by the visa applicant in her application, in which she had written that her “life is in Syria where I was born and lived my whole life happily. It is my home and I have never wanted to leave”. I put it to him that she had migrated to Australia. He responded that at that time she had to come to be with her husband, but they later stated having problems and then in 2001 she decided to return to Syria.

29) The review applicant also referred to the visa applicant’s involvement in a charity organisation that helps disabled children, but he did not know the specifics of her involvement with the organisation.

30) The review applicant stated that the visa applicant will pay for her own airfare, and he will arrange temporary accommodation, but she will spend some time with his sister Rina who lives in Melbourne.

31) In relation to whether the visa applicant has had any problems in Syria because of her religion or ethnicity or for any political or security reason, the Tribunal was told she has not.

Evidence provided by the visa applicant

32) The visa applicant stated that neither the visa applicant nor her husband have other family in Australia.

33) The visa applicant stated that she would like to visit Australia because two of her children are Australian. She stated that her son, is now in a relationship with someone and wants to propose. She stated that in their custom the mother needs to meet the woman first. She stated that she would stay for a maximum of a month and plans to travel with her daughter, Suzy because Suzy is attached to her, and wants to visit her siblings during her holidays and then return.

34) In discussing the incentives for her to return to Syria the visa applicant stated that firstly she has her mother who is now 105 years old to care for. She stated that she will leave someone to care for her mother during her visit. She also talked about her volunteer work and additionally she has her own agricultural business which she started after she retired. She has olives and tropical trees and must supervise the workers. She stated that she cannot leave her daughter Suzy alone in Syria. I put it to her that she would not be leaving her daughter alone because the stated intention is for Suzy to accompany her. The visa applicant stated that they intend to return to Syria where their lives are.

35) The visa applicant stated that she has not had any problems in Syria for any reason related to her religion or ethnicity and neither for any political or security reason. In relation to my question regarding the impact of the war, she responded that where she lives there has been perfect security, contrary to media reports during the war it was still safe.

36) The visa applicant confirmed that she will be paying her own airfare and that she will stay with her son and her daughter, explaining that the review applicant will be renting a separate unit while they are visiting.

37) The visa applicant stated that she returned to Syria in 2001 after her father died, because she had three children, and it was difficult for her without any family here. She stated she is hoping that she has a chance to visit her children because she misses them and will then return to Syria.

Evidence provided by Suzy Barhoum

38) The witness explained that she currently works in a dental practice where she is the main dentist and is in charge of diagnosis, treatment, and the accounting but there are specialists in the practice. She was a lease holder because she had to undertake training for a period of two years in a country area but that finished at the beginning of the year, and she now holds a permanent license to practice in the city.

39) The witness stated that she is hoping to spend her holidays in Australia. She stated that the visa applicant needs a change after retirement and the ability to visit her children in Australia. She stated that she can come to Australia at any time as she is an Australian citizen, but her mother requires a Visitor visa. She stated that if her mother is not granted a visa, “she will not step foot in Australia”. She stated they wish to come at this time for her brother’s engagement.

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

Findings

41) Having considered all the evidence, the Tribunal accepts that the visa applicant wishes to come to Australia for up to three months for the purpose of visiting her son and daughter. The Tribunal accepts she will self- fund the cost of her airfare and other costs and that she will stay with the review applicant and her daughter while she is in Australia.

42) The Tribunal accepts the evidence provided that although the visa applicant is married and her husband resides in Australia, that the relationship is not close. The Tribunal has had regard to the fact that the visa applicant has not previously sought to travel back to Australia and accepts the evidence that she is motivated to do so at this time because of the review applicant’s intention to propose. The Tribunal accepts that the visa applicant’s mother and properties and volunteer activities provide sufficient incentives for her to return to her country of residence at the end of her permitted stay in Australia.

43) The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia. Condition 8503 refers to entitlement and does not require compliance. The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

44) 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

45) 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.

Linda Holub
Member