Bato (Migration)

[2023] AATA 4087

Bato (Migration) [2023] AATA 4087 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Naila Gorgees Bato

VISA APPLICANT:  Mr Faris Gorgees Batto Ashaqi

REPRESENTATIVE:  Ms Joumana El Halwe (MARN: 1388161)

CASE NUMBER:  2217101

HOME AFFAIRS REFERENCE(S):          BCC2021/1417273

MEMBER:Alison Murphy

DATE:28 November 2023

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 28 November 2023 at 4:28pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – participating in a family religious ceremony – family and professional business in Iraq – security situation in Iraq – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 19 September 2022 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 15 July 2021. 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 did not genuinely intend to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 21 November 2023 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 (Standard) and English languages.

6. The review applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant is a 53-year-old male from Erbil, Iraq. He originally applied for the visa for the purpose of visiting his terminally ill mother in Australia before her death, sadly she died very soon after the visa application was made and well before it was considered by the department. The visa applicant now wishes to visit his three siblings in Australia and participate in a religious ceremony at their mother’s grave. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. 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)).

11. In this case the visa applicant has never previously held a visa to Australia. Therefore there is no evidence before the Tribunal of any non-compliance with conditions of a previously held visa.

12. 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.

13. There is no information before the Tribunal that would suggest that the visa applicant would seek to work, study or engage in training in Australia. Rather the Tribunal accepts that the applicant is a lawyer of almost thirty years standing in his home city of Erbil, Iraq. In making this assessment the Tribunal notes his Iraq-Kurdistan Bar Association membership card which records his date of bar entry in 1997 as well as the other oral and documentary evidence referred to below. The information before the Tribunal does not indicate the applicant is entitled to a substantive visa, other than a protection visa, while remaining in Australia. Therefore the Tribunal is satisfied that the applicant will comply with visa conditions 8101, 8201, 8503 and 8531.

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

15. As noted in the delegate’s decision, the delegate considered that the visa applicant may seek to remain in Australia permanently if he is granted the visa. In making that assessment the delegate noted that the applicant had not provided evidence of strong financial, employment and/ or personal ties as would demonstrate his intention to depart Australia at the end of his stay.

16. At hearing the review applicant and the visa applicant gave evidence that was consistent with the documents and submissions provided to the department and the Tribunal. The Tribunal accepts them to be credible witnesses. The visa applicant gave evidence that he has had numerous opportunities to migrate to countries outside of Iraq, including with the rest of his family who departed Iraq in or about 2004, and that he has absolutely no interest in doing so.

17. The parties frankly acknowledged that the visa applicant’s closest relatives are in Australia and Germany, his parents being deceased and his siblings having relocated to those countries a number of years ago. The Tribunal accepts that the visa applicant is unmarried but has significant extended family members in Iraq. The Tribunal further accepts that he travelled extensively across the Middle East as well as to Germany and Asia before the COVID pandemic and appears to have had many opportunities to seek asylum outside Iraq which he did not take.

18. In relation to his employment, the delegate was concerned the applicant had declared he was self-employed but had provided no evidence that his employer had authorised his leave or that he had a job to return to. That appears to misunderstand the applicant’s status as a self-employed lawyer. At hearing the visa applicant gave evidence that he practised mainly in the areas of civil and commercial law while also undertaking some criminal work. After the hearing the Tribunal was provided with a post on the Facebook page ‘Ankawa Today’. The post was made by Aydin Marouf, the Minister for the Region of Community Affairs, honouring the applicant and a number of other lawyers with certificates of thanks and appreciation for their service and attaching a number of photographs to that post. The applicant is one of the lawyers named in the accompanying article. The Tribunal also notes the evidence of his membership of the Iraq-Kurdistan Bar Association since 1997 and accepts the applicant is a long-standing lawyer in Erbil who is self-employed as is common in that profession.

19. The delegate was also concerned about the lack of evidence of the applicant’s financial circumstances. At hearing the visa applicant and the review applicant gave consistent evidence to the effect that the visa applicant is financially prosperous, providing financial support to his siblings in Australia and paying for the grave and burial expenses of their mother.

20. They each gave evidence that as is the usual practice in Erbil, the visa applicant does not use banks, preferring to deal in cash because of the low levels of trust in the authorities and the banking system. Their evidence in this regard is supported by country information which indicates that the banking sector in the Kurdistan Region of Iraq has a very limited role in business transactions, because of a lack of confidence in the banking sector following a loss of deposits under the old regime. It notes that the majority of locals hardly banks even for international transactions, keeping most of their funds in cash.[1] The visa applicant provided the department with three property title deeds, consistent with his evidence at hearing that he owns a number of properties, some of which he has inherited and others of which he has purchased.

    [1] Consulate General of the Czech Republic in Erbil Banking System and process of opening bank account at Banking System and process of opening bank account | Consulate General of the Czech Republic in Erbil (mzv.cz)

21. At hearing I discussed with the applicants that DFAT reports that security incidents occur often and without warning including rocket, mortar and IED attacks.[2] They gave evidence that the security situation in southern Iraq is significantly more volatile than the KRI, which is consistent with DFAT’s advice that the Kurdish Region of Iraq is generally regarded as a less dangerous security environment than other parts of Iraq.[3] The visa applicant gave evidence that he had remained living in Erbil even when Iraq was consumed by war and that he had no concerns about the security situation in KRI. The Tribunal accepts that the security situation is different in KRI from Southern Iraq and that the applicant has remained living in that country through more volatile and dangerous times than those that currently prevail.

    [2] DFAT DFAT Country Information Report Iraq 16 January 2023

    [3] DFAT DFAT Country Information Report Iraq 16 January 2023

22. The Tribunal has also considered the applicant’s need to travel, which is to be reunited with siblings that he has not seen for many years. The Tribunal notes that the visa application was made prior to the death of the applicants’ mother and that the visa applicant’s desire to see his remaining siblings is now more pressing because of the serious illness of another sister resident in Australia who is suffering from cancer that prevents her travelling outside the country at present.

23. In view of all of the available evidence, the Tribunal is satisfied that the applicant is a prosperous lawyer living comfortably in Erbil who wishes to travel to Australia for a short period of time to visit his family members here.

24. 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

25. 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.

    Alison Murphy
    Member