Hasan (Migration)

[2017] AATA 3035

Hasan (Migration) [2017] AATA 3035 (28 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sami Hasan

VISA APPLICANT:  Mr Khalil Hasan

CASE NUMBER:  1701735

DIBP REFERENCE(S):  BCC2016/3879725

MEMBER:Frances Simmons

DATE:28 December 2017

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 28 December 2017 at 10:13am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor)(Class FA) – Security situation in Syria – Family, property and income in Syria – Strong incentives to return – Lives in government controlled area – Security situation relatively stable – Need to consider specific circumstances rather than make broad assumptions – Imposition of security bond further incentive for compliance

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, cl 600.211(a) - (c), cl 221, cl 222, Conditions 8101, 8201, 8531

CASES
Khanam v Minister for Immigration & Citizenship [2009] FCA 966

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 6 December 2016 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 18 November 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 visit Australia temporarily.

5.    The review applicant applied for review of the decisions to refuse to grant visitor visas to his father and his brother.  The review applicant made two separate applications for review, naming both applicants in review application 1702026, and review application 1701735.

6.    Both applications were constituted to the present Tribunal and, with the consent of the review applicant, on 5 September 2017 the Tribunal held a combined hearing in these matters.  The review applicant appeared before the Tribunal to give evidence and the Tribunal also received oral evidence from the visa applicant and his son, Mr Alaa Hasan, who is the visa applicant in case number 1702026.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7.    The Tribunal has jurisdiction to review the decision to refuse the visa of one visa applicant in respect of each of the two review applications, despite both visa applicants being named in in the applications for review. On this basis, it finds that it has jurisdiction to consider the refusal decision in respect of Mr Khalil Hasan in case number 1701735 and the  application for review in respect of Mr Alaa Hasan in case number 1702026. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Background

9.    The visa applicant is a married man from Tartus in Syria. He was born on 1 October 1954 and he has lived in Syria all his life. According to his application for the visa, he is retired and wishes to travel to Australia to see his son, who is the review applicant, and five Australian born grandchildren for up to three months. The visa applicant has a wife, four sons and one daughter in Syria, as well as a son in Australia. He proposes travelled to Australia with his youngest son. His application is accompanied by a statutory declaration from his son and bank statements from his son’s business.

1. The Tribunal received a copy of the marriage deed for the review applicant and his wife, which occurred in Tartus on 16 October 2008,  birth certificates for their Australian born children, as well as documentation relating to property owned by the visa applicant and bank statements relating to the review applicant’s business.

2. At the hearing the review applicant confirmed his father and his brother are living in Tartus in Syria and are of the Alawite faith. The review applicant gave evidence, which was consistent with the evidence of the visa applicant, that the visa applicant is retired, owns the property in which he lives, has two units (which generate rental income) and income from his superannuation pension. Three of the visa applicant’s sons are in the army. His youngest son, who has also applied for a visitor visa, is still studying. It was stated that Mr Alaa Hasan did not have a problem serving in the army; his three elders brothers are already in the army.

3. The review applicant told the Tribunal that his father is sixty-five years of age and every time they speak on the phone his father cries because he misses him and wishes to see him and his grandchildren. His father is retired. He wanted to bring his father to Australia for a short visit: if he dies at least he will have seen his grandchildren. The review applicant said that he can’t return to Syria as he will be called to serve in the army and, because of his family and business responsibilities in Australia, he is not in a position to do so now.

4. The visa applicant proposes to stay in Australia for up to three months.  He would like to travel to Australia for just enough time to see his son. The visa applicant was asked what would motivate him to respond to Syria given that millions had fled the conflict, and he said all he wanted was to go was for a short visit to see his son. He told the Tribunal had lived all his life in Syria, his home and his properties were in Syria. His wife, four of his five sons, and only daughter currently reside in Syria. He has been retired for four years but he has pension and two units from which he derives rental income and three of his sons serve in the army and are paid wages. His youngest son, who has also applied for a visitor visa, is studying. 

5. At the hearing the Tribunal discussed with the review applicant general information about the security situation in Syria and Tartus and put to the review applicant its concerns that, given country information concerning the ongoing conflict in Syria, the visa applicant may not be motivated to return to Syria at the end of the permitted stay. After the hearing in this matter the Department of Foreign Affairs and Trade (DFAT) published a report on thematic report on conditions in Syria on 28 October 2017. The Tribunal has considered the information contained in this report and notes that it is broadly consistent with the country information about Syria discussed at the hearing.

Issue for determination

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting his son and his five grandchildren for a period of three months.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

3. 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 visa applicant has never travelled outside of Syria.  His wife has previously travelled to Australia in 2011 holding a visitor visa and returned to Syria before this visa expired.

4. 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:

   ·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.

5. There is nothing in the evidence before the Tribunal which suggests that the visa applicant would seek to work or study during his proposed visit. The Tribunal accepts the review applicant’s evidence that his father is retired, he has investment properties and superannuation savings that generate income. The Tribunal also accepts that the review applicant’s brothers in Syria provide support to their parents, the review applicant is also in a position to do so, and that the review applicant will provide accommodation and financial support to the visa applicant whilst he is in Australia. The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201.

6. Condition 8503 refers to entitlement and does not require compliance.

7. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In establishing whether 600.211(c)  is satisfied, Departmental policy indicates that relevant considerations of any other matter may include, but are not limited to the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as: ongoing employment; the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia; property, or other significant assets, owned in their home country and whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance.

8. According to Departmental policy, other considerations may also include personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as: economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia; and economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country. Other matters that may considered are the applicant’s person ties to Australia, that is: does the applicant have more close family members living in Australia than in their home country; military service commitments; and civil disruption, including war, lawlessness or political upheaval in the applicant’s home country. 

9. The Tribunal accepts that the visa applicant is an Alawite from Tartus, a government controlled area of Syria. Tartus has the biggest concentration of Syria’s Alawite minority and is the heartland for Assad’s Alawite-dominated government.[1] With respect to the impact of the conflict upon his family, the review applicant said no one had complained of any bad repercussions and that his family is thinking of getting through the war: he has three brothers in the army and fighting for their country.  The review applicant told the Tribunal that his youngest brother needed to accompany the visa applicant to travel to Australia because he can’t trust his father to come by himself. The Tribunal notes that the review applicant’s mother travelled to Australia by herself in 2011  and that the review applicant disclosed that when his father was much younger he travelled abroad without a passport for work. It was also stated that the father was uneducated whereas the mother was not. While it may be of practical assistance to the visa applicant to travel to Australia with his son, the visa applicant indicated he would be willing to travel to Australia without his son and the Tribunal is not satisfied that the visa applicant would be unable to travel to Australia alone.

   [1] >

   DFAT reports that Alawites are mainly located in government controlled areas, thereby receiving some level of protection. [2]  The Tribunal notes that DFAT reports that non- state armed groups have targeted Alawites for their perceived links to, and traditional support for, the government. While the Tribunal accepts that Tartus has not been the site of military activity, in May 2016, ISIL carried out two suicide bombings in the predominantly Alawite areas of Tartus and Jableh, killing 154 people and wounding more than 300 people.[3]  Reporting on this attack, the Guardian stated that Tartus had been ‘spared the destruction that has laid waste to other parts of the country over more than five years'.[4]  DFAT assesses that in general the security situation, even in safe areas of the country, has the potential to deteriorate rapidly and without notice.

   [2] DFAT Country Information Report, Syria, 23 October 2017.

   [3] DFAT Country Information Report, Syria, 23 October 2017.

   [4] >

   The Tribunal accepts that, with the exception of the review applicant and the review applicant’s five children, the visa applicant’s family (his wife and five adult children) all reside in Tartus, Syria. In these circumstances, the Tribunal considers the ongoing presence of his wife and five adult children in Syria would act as a reasonably strong incentive for him to return there before the expiry of any visitor visa that may be granted to him and notes that, while his wife visited Australia (albeit at an earlier stage in the conflict) , she did return to Syria in compliance with his visa conditions.  Furthermore, the Tribunal accepts that the visa applicant has property in Syria, including investment properties which generate a rental income, and that he has lived all his life in Syria. While the Tribunal acknowledges that the situation in Syria has deteriorated since the conflict began, the Tribunal accepts that the applicant lives in a government controlled area of Syria where the security situation is relatively stable. The evidence before the Tribunal does not suggest that the visa applicant holds anti-government opinions or that he has been personally targeted or harmed whilst living in Syria for any reason.

10. With regard to condition 8531, the Tribunal was concerned that the ongoing situation in Syria would act as a disincentive for the visa applicant to return to Syria. War in Syria has meant that millions of Syrian nationals have left or been attempting to leave the country. Although the visa applicant has not raised any specific protection claims, the Tribunal acknowledges the conflict in Syria may provide a strong incentive for persons from Syria to remain in Australia beyond the period allowed for in this visitor visa and apply for another visa, such as a protection visa.  However, each case must be considered on the basis of its individual circumstances.

11. In this respect, the Tribunal has had regard to the decision in Khanam v Minister for Immigration & Citizenship [2009] FCA 966 which directs the Tribunal to consider the specific circumstances of the applicant rather than make broad assumptions based on information regarding persons of the same nationality or social group. Accordingly, determining whether the visa applicant has a genuine intention to stay temporarily in Australia, the Tribunal must consider his specific circumstances, and cannot exclusively be influenced by the possibility that the applicant as a Syrian national, may seek to remain in Australia by applying for a protection visa, although that factor may be a relevant consideration.

12. The Tribunal found the evidence of the visa applicant and the review applicant as to why the visa applicant wanted to visit Australia his son and grandchildren to be genuine. While the Tribunal acknowledges the serious and highly volatile security situation in Syria and that there is no area of the country that is unaffected by the conflict, the Tribunal accepts that the applicant lives in a government controlled area that is relatively safe and which has been a destination for internally displaced people from other areas of Syria. The Tribunal accepts that the visa applicant will be encouraged to return to Syria because of his substantial family ties – including his wife and children – in Syria, as well as his historical ties to the country in which he has lived all his life, and his property interests.

13. The Tribunal also gives some weight to the willingness of the review applicant to meet any financial security that may be imposed by the Department in relation to visa grant. The Tribunal considers that the imposition of a security bond would provide further incentive for compliance. The review applicant is also aware that if his father fails to comply with his visa conditions this will have negative implications for any future applications he makes to sponsor family members to visit in Australia.

14. 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

1. 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.

Frances Simmons
Member