Falloum (Migration)

[2020] AATA 6055

Falloum (Migration) [2020] AATA 6055 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jemma Falloum

VISA APPLICANT:  Mrs Linda Falloum

CASE NUMBER:  1828310

HOME AFFAIRS REFERENCE(S):          BCC2018/3073640

MEMBER:Moira Brophy

DATE:7 December 2020

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 07 December 2020 at 9:20am             

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family members– genuine temporary stay criterion – genuine intention to stay temporarily – strong incentives to depart Australia – compliant in the past – family and work commitment in home country –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 Immigration on 12 September 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 August 2018. 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 (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 concerned the purpose of the visit was not a genuine temporary stay.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant, Mrs Jemma Falloum gave evidence by way of telephone to the Tribunal on 4 November 2020. The Tribunal also received oral evidence from the visa applicant Mrs Linda Falloum. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

11. 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)).

12. At the time of hearing the visa applicant told the Tribunal that she had previously travelled to Australia in 2015. Prior to her coming she had her application for a visa rejected. She then applied to the AAT (differently constituted) and her application was remitted. She was granted a three-month visa. She had stayed for one month and then returned to Syria because of her work and her caring responsibilities to her mother who is aged 93. She then applied again in 2018 and her application was rejected. Apart from travelling to Australia the visa applicant has not travelled outside Syria. She has previously complied with the terms of the visas she has been granted. She has not been refused a visa to any country other than Australia.

13. 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.

14. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit her family. The review applicant said she had not seen her mother for five years. Her mother had not seen her children since they were aged five and three. The review applicant is presently studying at TAFE and she would be able to take some time off and show her mother around. The Tribunal accepts it is the intention of the visa applicant to visit her daughter and her family. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

16. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that she had not seen her mother for five years. She stated she wanted to spend time with her and for her children to spend time with their grandmother. She stated it was difficult for her and her husband and their two children to go to Syria because of the costs involved and the difficulties of travelling long distance with young children especially since one of the children was an insulin dependent diabetic.

17. The review applicant gave evidence that the visa applicant wants to come to Australia for one month. The visa applicant told the Tribunal that she would stay for three months at the longest. She has arranged a period of absence with her employer. She is the prime carer for her elderly mother who she has daily contact with. She feels a great sense of responsibility to her. She would be hesitant to leave her on her own for a longer period. She also has daily contact with her three brothers and her sister comes to visit each week. She has arranged for her brothers to care for her mother in her absence and she was hopeful her sister would come to assist them. She said that arrangement would only work short term as she is the one who has always provided care and companionship to her mother as needed.

18. The visa applicant is in paid employment as a care person for an orphanage. She has thirteen children in her care. She feels a great sense of responsibility to her charges and recognises the need they have for continuity of care.

19. The Tribunal asked the review applicant what incentives the visa applicant has to return to Syria at the end of her permitted stay in Australia.

20. The review applicant responded that her incentives to return are her family and her work. She has her mother, three brothers and a sister who live within close distance of her.  Her three children are now in Australia. The balance of her extended family is in Syria but her primary family, her children and grandchildren are in Australia. Because of this the Tribunal accepts the need to weigh the evidence as to the incentives to return to Syria very carefully. The Tribunal was mindful that the last time the visa applicant visited she had one child, not three, in Australia. When the visa applicant was asked what would happen if she comes here, changes her mind and does not want to return to Syria, she responded that she loves her work and her family, especially her mother. She said that would draw her back. She acknowledged the concerns of the Tribunal because of all her children being here but she said they made decisions based on their situations and the stage of life they were at. It was different for her. She had been in Syria all her life. Her support network was there as was the asset base she had worked to secure.

21. The Tribunal has considered the evidence given by the review applicant. She came to Australia in 2009 on a Partner visa. She is now an Australian citizen. She and her husband have two young children. The husband of the review applicant is employed, and she is currently studying to reenter the workforce after caring for her two children, one of whom has insulin dependent diabetes.  The review applicant has worked very hard to make a new life in Australia since she came here, and she wants to be able to have her mother visit and spend time with her and her family in her own home and her country. The Tribunal accepts it is financially and logistically very difficult for her and her young family to travel back to Syria to see her mother, both financially and logistically. The review applicant stated that the visa applicant is law abiding and that all the members of the review applicant's family are also law abiding as was evidenced by her mother complying with her visa conditions when she visited in 2015. The review applicant said it was important her mother and other family members were able to come and visit her and she understood that could only happen if they complied with the conditions of any visa they were granted.

22. The Tribunal has considered other relevant matters including the current situation in Syria. The review applicant stated that if the Department requires a security bond, she was prepared to lodge a bond of around $15,000. She stated she had lodged a bond on her mother’s previous visit. She stated that she is confident that her mother will return to Syria at the end of her visit.

    Findings

23. Having considered all the evidence, the Tribunal is of the view that the visa applicant and the review applicant are credible witnesses. The Tribunal accepts that the visa applicant has a strong commitment to her mother and siblings in Syria and that this would provide a strong incentive for her to return to Syria. The Tribunal accepts that she has the financial resources to pay for her trip to Australia. The Tribunal accepts that she does not intend to work, study or undertake any training in Australia. The Tribunal places considerable weight on the fact that she has only applied to visit in the context of her not having seen her daughter and grandchildren for five years.

24. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that her mother is  able to visit her and her children in Australia and that she will ensure that the visa applicant complies with the conditions of her visa so as not to jeopardize other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of her visa.

25. The Tribunal accepts that the visa applicant's incentives to return to Syria outweigh her incentives to remain in Australia after the end of her permitted stay. The Tribunal accepts that she intends complying with the conditions of his visa.

26. 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

27. 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.

    Moira Brophy
    Member