Dikran (Migration)

[2022] AATA 4718

Dikran (Migration) [2022] AATA 4718 (15 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Noushig Khatchig Dikran

VISA APPLICANT:  Mrs Sonik Kesheshian

REPRESENTATIVE:  Ms Penny Dimopoulos

CASE NUMBER:  2215872

HOME AFFAIRS REFERENCE(S):          BCC2022/3423402

MEMBER:Margie Bourke

DATE:15 December 2022

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 15 December 2022 at 11:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visit to attend a family wedding – employment in Syria – political and security situation – offer to provide a financial security – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 17 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 25 August 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 Tourist 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 intends to stay temporarily in Australia.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the fact of the visa applicant would be giving evidence from overseas. The Tribunal had regard to the circumstances of the review applicant and the nature of the review. The Tribunal considered the conduct of the hearing by video would give the review applicant for the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The hearing did not involve a large amount of paperwork to be put to the review applicant during the course of the hearing. The hearing was scheduled when the availability of in-person hearings was restricted due to the ongoing pandemic. For all of the above reasons the review applicant was invited to attend the hearing by video.

6. With the consent of the review applicant, the hearing was combined with another hearing where the application for review lodged by the same review applicant, the review involved the same visa subclass, and the same issues, and in which the visa applicant is the husband of the visa applicant in this matter.

7. The review applicant appeared before the Tribunal by video on 15 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s fiancé who attended the hearing by video with the review applicant. The Tribunal also received oral evidence from the visa applicant and her husband who attended the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

8. The review applicant was represented in relation to the review. The representative attended the hearing by video.

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

   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 a family visit, to attend the visa applicant’s daughter’s wedding. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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. Based on the evidence of the review applicant and the visa applicant, the Tribunal is satisfied that the visa applicant has never held an Australian substantive visa or a bridging visa. Therefore there is no evidence that the visa applicant either complied or did not comply substantially with the conditions of the last visa held.

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 600.611(2)):

    ·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.

15. Based on the evidence before it the Tribunal is satisfied that the visa applicant intends to travel to Australia to attend her daughter’s wedding, and to meet her daughter’s fiancé and his family. The Tribunal is satisfied that the visa applicant does not intend to work, study or train in Australia.

16. The issue in this review is whether the visa applicant intends to return to Syria or remain in Australia. The delegate in the Department’s decision record dated 17 October 2022 gave more weight to the current economic, political and security situation in Syria then the visa applicants personal circumstances, and was not satisfied that the visa applicant intended to stay only temporarily in Australia. The Tribunal is satisfied that the visa applicant has a brother and sister and their families, and has employment in the fashion industry in her home country. The Tribunal is satisfied that the visa applicant has lived in Syria all her life, and intends to return before the expiration of the visa because she has her house, friends, family, employment and sense of community.

17. The Tribunal has also considered that Syria has recently been in a state of war and many refugees have fled the country. The Tribunal accepts the evidence of the visa applicant’s husband that there is ongoing lack of stability and the situation is sometimes bad with no power and other difficulties. However the Tribunal is satisfied that the visa applicant and her husband have endured many years of the difficulties in their home country, and feel relatively safe, and wish to return there after the wedding.

18. The Tribunal accepts the evidence before it that the visa applicant intends to comply with the conditions to which the visitor visa would be subject, including that the visa applicant must depart Australia before the expiration of the visa.

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal is satisfied that the review applicant and her fiancé are aware that if the review applicant’s parent does not comply with the conditions of the visa, they will unlikely be able to successfully sponsor any other relatives in the future for a visitor visa. The Tribunal also accepts that the review applicant and her fiancé would, if required, provide security or a guarantee in relation to the visa applicant complying with the conditions of the visitor visa.

20. The Tribunal places weight on the importance of the review applicant’s parents being able to travel to Australia and attend their daughter’s wedding, which is a significant event.

21. 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

22. 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.

    Margie Bourke
    Member