Hamzeh (Migration)

[2017] AATA 667

Hamzeh (Migration) [2017] AATA 667 (28 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nazih Hamzeh

VISA APPLICANT:  Mr Mahmoud Hamza

Mrs Ibrahim Ghazwa

CASE NUMBER:  1614482 and 1614515

DIBP REFERENCE(S):  fa600

MEMBER:Linda Holub

DATE:28 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants a Visitor (Class FA) visa.

Statement made on 28 March 2017 at 1:57pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Incorrect address in Lebanon – Incentives to return to Syria – Social and familial connections – Review applicant supports the family financially

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 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 17 August 2016 to refuse to grant the visa applicants a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants separately applied for visas on 8 August 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In these case the applicants 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 (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 applicants did not meet cl.600.211 because the delegate found that the applicant had not demonstrated sufficient personal, financial or employment circumstances which may act as incentives to return to his home country and comply with the conditions of a Visitor visa for Australia.

5. The review applicant appeared before the Tribunal on 21 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants.

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

BACKGROUND

1. The review applicant was born on 16 December 1968.  At hearing the review applicant explained that he came to Australia on a partner visa.  He is a General Practitioner[1] and spent working as a locum and then working in Griffith.  He stated he earns $350,000 per year.  After completing his time in rural practice he has now become part of a practice in Camden, NSW.  His wife does not work outside the home. They have a large six bedroom home with a granny flat on 5 acres of land.  He will pay for his parent’s airfares and their living expenses while they are in Australia.

   [1] See Australian Health Practitioner Regulation Agency, Register of Practitioner, accessed 23 March 2017.

2. The first named visa applicant was born on 1 February 1943 in Syria.  The second named visa applicant was born on 1 January 1951 in Syria.  They planned to travel to Australia to visit son.  Although their applications refer to having a son residing in Lebanon at hearing they indicated that their son lives in Syria.  As discussed below, they visited Lebanon at time of lodging their applications.

3. The review applicant explained that his parents want to travel to Australia together.  They have lived their entire lives in Bait Aslan and are related to many of the town’s residents in one way or another.  They have a very social life which is an important part of their culture.  Bail Aslan is in the Governorate of Tartous.  It has a mixed Alawite, Christian and Muslim population and is a strongly government held and according to the review and visa applicants has had no problems in the context of the civil war. 

10) The Tribunal found a reference to one explosion in the city of Tartous[2]^.  Other media coverage of the city of Tartous refers to it being “an unusual example of coexistence in a country torn apart by sectarian violence”[3].

[2] Syria’s war:  Blast hit Tartous, Hom, Hasaka in September 2016,

[3] Tartous, Syria, plays an unusual role in civil war;   accessed 23 March 2017.

11) Neither applicants have previously lodged applications to travel to Australia.  The first named applicant has travelled to Jordan and Lebanon in the past.

12) In relation to the visa applicants listing an address in Tripoli as their residential address in their application, the review applicant stated that his parents were advised by the agent in Tripoli that doing so would increase their chance of being successful.  The first named visa applicant stated they stayed in Lebanon for a few months and that they were going back and forth for a few months.  The Tribunal put it to the visa applicant that his application does not state that he was visiting but that he was residing.  He responded that he did reside in Lebanon and he also resided in Syria.

13) The second named visa applicant stated that she provided the actual address where she was residing in Lebanon at the time of application.  She said when the visa application was refused she returned to Syria.  She only stayed in Lebanon for a few months.

14) After the discussion with the visa applicants the Tribunal asked the review applicant about the inconsistencies in the explanations and told him that it was concerned that untrue information was provided in the application.  He stated that his parents were fearful of contradicting the information they had previously provided.  He repeated that they were advised to put an address in Lebanon and as they are semi-literate they took the agent’s advice.  He added that since the war commenced it is very difficult for them to get to Lebanon as there are greater restrictions on Syrians travelling there.  He said they had to pay a senior soldier to allow them to travel to Lebanon.

15) The Tribunal discussed the incentives for the visa applicant to return to Syria at the end of their visit.  The review applicant stated that they have lived their whole lives in the village and are related to many of the people who live there one way or another.  He stated that they cannot speak English and in Australia would be unable to go anywhere on their because his house is in semi-rural area.  He referred to his brother living next door to the visa applicants and taking care of them and to the fact that he sends them money already.  He state that if they had wanted to migrate they would have already done so. 

16) The Tribunal asked the review applicant about the fact he has a 6 bedroom house as well as a granny flat and could easily accommodate them.  He responded that that his father would be like a fish out of water. 

17) The Tribunal asked the first named applicant about the incentives for him to return to Syria.  He referred to his property, his son and their car.  The second named applicant also referred to her home, her son and their car.  They both stated that they only plan to visit their son and have no intention of staying in Australia.

18) The Tribunal discussed with the review applicant its concerns about the war in Syria being a significant disincentive for them not to return to Syria.  In discussing this, the Tribunal also referred to the fact that he has a very large house that could accommodate them.  He reiterated that the area is safe and not affected by war at all.  He stated that they would have trouble surviving in Australia.  He acknowledged he has a large house that could accommodate them.

CONSIDERATION OF CLAIMS AND EVIDENCE

19) 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.

20) In the present case, the visa applicant seeks the visa for the purposes of visiting family.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

21) 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)).

22) The Tribunal must also consider whether the visa applicants intend 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.

23) The Tribunal noted that the applicants have not previously applied to travel to Australia.

24) There is nothing in the evidence before the Tribunal which suggests that the applicants would seek to work or study during their proposed visit.  The Tribunal put significant weight on their ages and their inability to speak English and the fact that the review applicant earns a substantial income.  The Tribunal is satisfied they will comply with conditions 8101 and 8201.

25) Condition 8503 refers to entitlement and does not require compliance.

26) With regard to condition 8531, the Tribunal had a number of concerns about the incentives for the applicants to return to Syria.  While the Tribunal was sympathetic to the evidence given by the review and visa applicants regarding their long history and social and familial connections within their village and the fact that they have a son who lives next door and have a house and car in the village, the Tribunal put weight on the fact that the review applicant supports the family financially and has a large house and granny flat where they could live.  The Tribunal took account of the relative peace and harmony of the Tartous region but put greater weight on the fact that the country has been war-torn for over 5 years now.  The Tribunal also put weight on evidence provided by the review applicant that he cannot travel to visit them because of the war, which suggests to the Tribunal that the area is sufficiently disrupted as to be a disincentive for the visa applicants to return to Syria. While the review applicant provided a plausible explanation as to why the visa applicants wrote in their applications that they resided in Lebanon, the fact they were prepared to provide false information to Australian authorities was a significant factor in the Tribunal’s decision.

27) The Tribunal was sympathetic to the review applicant wanting his parents to visit and spend time with him, on balance the Tribunal did not accept that the visa applicants intend to stay temporarily.

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

29) For the above reasons the Tribunal is not satisfied that the visa applicants 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 not met.

DECISION

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

Linda Holub
Member

accessed 23 March 2017.