Dawood (Migration)

[2024] AATA 949

Dawood (Migration) [2024] AATA 949 (19 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Emaad Elsha Dawood

VISA APPLICANT:  Mr Aymen E. Dawood Dawood

REPRESENTATIVE:  Ms Natalie Audisho

CASE NUMBER:  2218548

HOME AFFAIRS REFERENCE(S):          BCC2022/4110071

MEMBER:David Crawshay

DATE:19 March 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 19 March 2024 at 11:49am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – employment and family commitments in home country – financial resources – property ownership – review applicant’s potential loss of citizenship – travel to other countries – potential for family reunion – offer of a security bond – decision under review affirmed       

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, 600.612; Schedule 8 Condition 8101

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 26 October 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 30 September 2022. 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 visa applicant genuinely intended to stay temporarily for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 22 January 2024 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 Assyrian and English languages. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   BACKGROUND

7. The visa applicant is a 47-year-old man from Duhok, Iraq. It is claimed that he is married and has three children.

8. At hearing, it was discovered that he [departed Iraq] in the 1990s and returned there 12 years ago, having met his current wife.

9. He is claimed to be a driver who delivers construction materials throughout Iraq for a construction company, a job in which he has been working since 2022. Before this, it was claimed that he worked for the Internal Rescue Committee since 2013.

10. His travel is for the stated purpose of visiting family and in particular his parents who have serious health issues. He also planned to attend a wedding of a family member although unfortunately this event already took place in early-February 2024

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting family. Specifically, it finds that at the time of the hearing he intended to travel here to visit his father who is sick and to attend a wedding of a family member in February 2024, although regrettably this event has already occurred. Visiting family 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 he genuinely intends to stay temporarily here for these purposes and not for purposes that would entail him remaining in Australia after the cessation of any visitor visa granted to him or that would result in him not complying with conditions of his visa.

13. 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 information in front of the Tribunal is that the visa applicant has never held a visa to come to Australia. This aspect is given no weight.

14. 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.

15. The Tribunal has considered the profile of the visa applicant. It finds that he is a male of working age who has experience in industries that are easily transferable to Australia – being transport and construction. However, it has also considered that the review applicant claims to have sufficient money to fund the visa applicant’s stay. For this reason, it accepts that the visa applicant intends to comply with condition 8101 relating to “no work” during the period of any visitor visa given to him. It also accepts that he intends to comply with condition 8201 relating to no study or training for more than three months.

16. Condition 8503 is an entitlement and is not able to be complied with.

17. Condition 8531 is considered below.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has firstly considered the visa applicant’s employment and financial situation. Based on information from a statement in his name, it accepts that on 17 January 2024 he had 53 million IQD in his account (which is the equivalent of around $61,000 as at 18 March 2024).[1] It accepts based on a letter provided by his employer that he works as a driver for a company for which he is paid USD1,500-per-month.

    [1] (as at 18 March 2024).

19. It is claimed that the visa applicant lives with his family in a house in Duhok that he owns. However, the title document given in support is for a property located in a part of Baghdad. As such, the Tribunal finds that this is not the property where he claims to live but might instead be used for another purpose. Lastly, the parties have provided registration documents for two cars – a pick-up vehicle and a station wagon.

20. The Tribunal has considered the information in front of it. It gives weight to the fact that the visa applicant has a job in Iraq and some savings as well as two vehicles. It does not accept, however, that the visa applicant’s family owns the house in which they live for the reason given above. No weight is given to this particular aspect.

21. The Tribunal has considered that the visa applicant claims to have a wife and three children (aged 10, 9 and 6). At hearing, he told the Tribunal that the family lives with his mother-in-law who is sick. In a submissions letter dated 18 January 2024 from his representative, it was claimed that the visa applicant is the breadwinner for his family and does not intend on being away from his young children beyond the month proposed. The Tribunal has considered this information. In relation to the claim that the visa applicant is the family’s sole breadwinner, while this might be true it finds that the visa applicant has substantial funds in his bank account (as detailed above) which might be able to be accessed by these family members for living costs for a prolonged period of time while he is in Australia and might be unable to work. In relation to the balance of the claims made about his immediate family, the Tribunal accepts that this aspect would provide an incentive for him to return at the end of any period granted to him under a visitor visa. It is accorded weight.

22. The Tribunal has considered the review applicant’s offer of a security bond of $30,000 for compliance. It accepts based on statements from a bank account in his name that he has the funds to be able to give such a bond. It has also considered the testimony of the review applicant at hearing that he would not risk his citizenship being cancelled (if the visa applicant were to overstay). At this point, the Tribunal responded by saying that while it could not comment on what the Department would do, that course of action seemed extreme. It told him that a visa had been refused before (in fact, at least two have been refused) and no adverse actions flowed from that. The review applicant did not respond.

23. The Tribunal understands that there may be adverse consequences for the review applicant if the visa applicant were not to comply with conditions of his visa or if he were to remain in Australia beyond the validity of any visa given to him. However, there is no information to show that the review applicant would be stripped of his citizenship. Even if the review applicant held a genuine view that this would or could be a consequence, it is the visa applicant’s subjective intention which the Tribunal ultimately needs to consider and not the intention of the review applicant. If the visa applicant intends to remain in Australia beyond the validity of his visa, there may be little that the review applicant could do. As a result, this aspect is given only some weight.

24. The Tribunal has considered information about the visa applicant’s previous travel. In this regard, it accepts that he has travelled to Greece, Türkiye and Bulgaria. However, none of these countries offers the same or similar incentives in terms of family as does Australia. While the Tribunal accepts that the visa applicant has travelled outside of Iraq since he returned there 12 years ago, this aspect is given only very limited weight.

25. The Tribunal has considered the visa applicant’s family circumstances. In this regard, it finds based on information from the review applicant at hearing that the visa applicant has four siblings and his two parents in Australia. It finds that these siblings all emigrated to Australia [or] countries in Europe, based on testimony from the review applicant at hearing. While it accepts that these [emigrations] occurred in the [1990s], it nonetheless harbours grave concerns that the visa applicant will attempt to facilitate a permanent family reunion with these people in Australia.

26. The Tribunal notes the claims made by the review applicant’s representative in the submissions letter of 18 January 2024 and the review applicant at hearing that the region in which the visa applicant lives is safe. However, it also notes that the visa applicant is a Christian in a country that has experienced a substantial decline in their numbers, including in relatively recent times according to reports.[2] It notes the testimony of the review applicant at hearing that a lot of Christians were killed at the hands of ISIS and other groups. It also notes country information which provides details of mass displacement of Christians from areas such as Mosul and the Ninewa plains (which are nearby to Duhok) due to ISIS activities, although it notes that these areas have since been taken back.[3] While the Tribunal acknowledges information stating that the situation in Duhok is, variously, “safe” and “peaceful”, it has chosen to give more weight to other country information showing the risks that are faced by Christians in particular.

    [2] Immigration and Refugee Board of Canada, ‘Iraq: Situation and treatment of Christians, particular in the north, the Kurdistan region, and Baghdad; government protection and support program (2017-September 2020)’, (9 October 2020).

    [3] Ibid.

27. Having considered the information in front of it, the Tribunal finds that there is a high risk of the visa applicant will seek to remain in Australia after the cessation of any visitor visa granted to him due to the presence of many of his family members here and the situation of Christians in Iraq. These aspects are accorded substantial weight of an adverse nature. The Tribunal has balanced the positive weight given to aspects of the visa applicant’s family, employment and financial circumstances and the assurances made by the review applicant against this risk. However, it finds that this risk outweighs the otherwise positive aspects.

28. While the Tribunal accepts that there are genuinely compassionate reasons for the visa applicant to travel to Australia, for the above reasons it is not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

29. The Tribunal finds that the requirements of cl.600.211 are not met.

    DECISION

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

    David Crawshay
    Member