Hasan (Migration)

[2021] AATA 2867

Hasan (Migration) [2021] AATA 2867 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Enzar Nawkhosh Hasan

VISA APPLICANTS:  Mrs Fatim Rassol Mahmood MANKORI
Mr Naughush Hasan Naughush Naughush

CASE NUMBER:  1914490

HOME AFFAIRS REFERENCE(S): BCC2019/1546892 BCC2019/1546982

MEMBER:Stephen Witts

DATE:2 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 August 2021 at 10:47am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant and compliance with conditions – incentives to return or remain – two children in Australia, husband and other children in home country – civil unrest and economic and social conditions – review applicant legally blind – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 1 April 2019 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 27 March 2019. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied that the applicants genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant, Mr Enzar Hasan, appeared before the Tribunal on 22 July 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the review applicant’s fiancé.

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

   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 applicants seek the visas 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.

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)). The Tribunal notes that there is no evidence before it of any breaches of substantive visas.

11. 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):

    ·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.

12. According to the delegate’s decision record dated 1 April 2019 provided to the Tribunal by the applicants the delegate was not satisfied that the applicants genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted. According to the delegate the primary visa applicant is a 56-year-old (as at the time of decision) Iraqi national residing in Iraq. According to the delegate the applicant requested a visa to visit her son for tourism purposes. The delegate considered that the applicants would be supported by the primary visa applicant’s son and fiancé but that they did not submit evidence of their own personal funds. According to the delegate it also considered the applicant’s family circumstances noting that no evidence was provided of remaining dependent family members in Iraqi; and that it also considered the extent of civil unrest in Iraq contending that this may encourage the applicants not to return back to their home country.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. The Tribunal notes the review applicant did provide submissions dated 20 March 2019 and 5 June 2019 stating that the visa applicants wish a general visit to Australia to see their family. The submissions also referred to the review applicant’s eyesight problems and to the fact that the civil unrest referred to by the delegate has been the norm for some time back in their home country. The review applicant also referred to the difficulty of providing appropriate financial information, and to the fact that there are other family members back in Iraqi including his brothers and sisters.

14. At hearing the review applicant stated that he first arrived in Australia as an illegal maritime arrival but then received a refugee visa and became an Australian citizen in 2008. He stated that he has a fiancé here in Australia and that he has a brother who came here to Australia on a carer visa to care for him as he is legally blind but who remained and became an Australian citizen, he thought, in 2011. He stated that the visa applicant, his mother, would like to come to Australia and see him and that he has been suffering from depression and has been unable to work at this time. He stated that he has two sisters and two brothers back in his home country and that they were all over 18. He stated that his mother would wish to return to her home country and further that his two brothers back in his home country also suffer eyesight problems. He stated that his parents own their own home but that as there are no laws in the same way that there are laws here in Australia that everything is done as a cash transaction and property ownership details can be difficult to ascertain. He stated that nevertheless his parents do have assets back in his home country. He further stated that Iraq has been in a difficult state for over 40 years and that he is not going to go back under any circumstances but that he wants therefore his mother to come here and see him.

15. The Tribunal has considered this evidence carefully and notes that the visa applicant does have family and that although her children are all over 18 and adults two of them may be considered dependent if they have some form of disability, in this case it was stated it was blindness, that would act as an incentive for her to return to her home country. The Tribunal also notes that the review applicant has stated that his father may remain back in his home country which would also act as an incentive for his mother to return. The Tribunal has considered the evidence provided taken as a whole and is concerned that the visa applicant, once here in Australia as a visitor, may have a significant incentive to remain in Australia to be with her 2 sons here and that at some point in the future she may seek to bring other members of her family, particularly her other sons who it is contended also suffer from legal blindness, to live here in Australia with her and be cared for under Australia’s more beneficial health care systems. The Tribunal finds that the circumstances overall circumstances lend weight to the contention that the visa applicant does not genuinely intend to stay in Australia temporarily.

16. The Tribunal has also considered that the economic, and social circumstances back in the visa applicant’s home country of Iraq are not particularly stable according to country information reports recently issued by the Department of Foreign Affairs and Trade which refers to the countries limited economic opportunity and stability for its citizens. The Tribunal considers that the circumstances of recent years are a significant factor promoting migration to Australia. The Tribunal has considered this information very carefully but is not satisfied that the conditions back in the visa applicants’ home country are conducive to them having a genuine intention to stay in Australia temporarily for the purpose for which the visa is granted. The Tribunal finds that this lends weight to the contention that the visa applicants may intend to stay in Australia long-term.

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

18. Accordingly, the Tribunal is not satisfied that if the applicants were to come to Australia that they would not seek to change their status on shore, given the benefits that they may derive. The above-mentioned factors give the Tribunal concerns that the applicants would seek to change their status on shore and/or remain in Australia and that the applicants do not genuinely intend to stay temporarily in Australia.

19. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend 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

20. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Stephen Witts
    Member