Ibrahim (Migration)

[2019] AATA 5372

Ibrahim (Migration) [2019] AATA 5372 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khudr Ibrahim

VISA APPLICANT:  Mrs Sausan Ibrahim

CASE NUMBER:  1911297

HOME AFFAIRS REFERENCE(S):         BCC2019/518416

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  4 September 2019

DATE OF WRITTEN STATEMENT:       5 September 2019

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 05 September 2019 at 12:38pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting siblings and their families – incentive to return to home country – security situation in Syria – personal and economic ties to home country – credible witness – decision under review remitted

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 Immigration on 27 March 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 18 February 2019, the visa applicant applied for the visa. At the time of this decision, the visa applicant is a 44 year old national of Syria.

3. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

4. 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.

5. The review applicant is the visa applicant’s younger brother. At the hearing he told the Tribunal that he had first arrived in Australia in 2007, that he was self-employed and that he was married and had three daughters. He provided the Tribunal with a copy of the primary decision. 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 stay temporarily in Australia for the purpose for which the visa could be granted.

6. On 4 September 2019, the review applicant appeared before the Tribunal to give evidence and present arguments. The visa applicant was available and willing to provide oral evidence by telephone from Syria but, having heard the oral evidence of the review applicant, the Tribunal did not consider it to be necessary. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The review applicant was represented in relation to the review by his registered migration agent and the representative also attended the hearing.

7. The Tribunal gave its decision on the review at the conclusion of the hearing. The Tribunal concluded that the matter should be remitted for reconsideration. The following are the reasons for that decision.

   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. The visa applicant seeks the visa for the purpose of visiting her brother and her sister, and their families, in Australia. (The review applicant told the Tribunal that his sister in Australia knows nothing about the plan as they were hoping to surprise her). The claimed purpose is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. At the hearing, the Tribunal explained to the review applicant the requirements of cl.600.211 and the matters relevant to its assessment. The Tribunal told the review applicant that the primary issue for consideration was whether the visa applicant genuinely intends to visit Australia temporarily.

11. In assessing the issues, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file as well as the oral evidence given at the hearing.

    Clause 600.211(a)

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. The review applicant gave oral evidence that the visa applicant has not travelled to Australia before, that she had never applied for a visa to travel to, nor travelled to, any country before. In the circumstances, the Tribunal makes no findings with respect to previous compliance with immigration conditions.

14. The review applicant also told the Tribunal that he had sponsored his mother-in-law to travel to Australia and that she had all travelled to Australia and had complied with her visa conditions. The Tribunal has no reason to doubt the veracity of this oral evidence.

    Clause 600.211(b)

15. 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).

16. 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; and

    ·8531 – must not remain in Australia after end of permitted stay.

17. The Tribunal discussed each of these conditions with the review applicant. The review applicant told the Tribunal that the visa applicant would comply with all conditions.  

18. The review applicant told the Tribunal that the visa applicant had no intention to work or to study in Australia. He explained that she wanted to come for a holiday and to visit family and to help support his wife who has been experiencing some problems (which he detailed and which were corroborated by medical evidence on the Tribunal’s file).

19. He gave oral evidence that if he had thought that the visa applicant or other family members were in need of protection that he would have assisted them with applications in the years 2013–16, when ISIS were controlling about 80% of Syria—not now, when things were relatively stable.   

20. He added that he would insist that the visa applicant comply with all conditions as he wanted her to have a good record so that she may be able to visit Australia again in the future and so other family members may be able to visit Australia as well.

21. The Tribunal found the review applicant to be very credible so the Tribunal accepts his oral evidence.

    Clause 600.211(c)

22. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

23. In the primary decision, the delegate noted that the visa applicant has family and business links in her home country which, ‘under normal circumstances’ may constitute an incentive for her to return there after a visit to Australia. However, the delegate expressed the view that:

    the prevailing political, security and economic conditions in Syria constitute a very strong disincentive to return there. Additionally, the applicant’s family links in Australia constitute a very strong incentive to remain here. 

24. The Tribunal asked the review applicant questions to ascertain the factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for her to return to Syria. 

25. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the visa applicant has some family members present in Australia. The review applicant told the Tribunal that the visa applicant has him and his family and another sister and her family. He told the Tribunal that he and the visa applicant were particularly close as the visa applicant was the sibling who was immediately above him in the birth order, whereas the other sister in Australia was the eldest of the nine siblings.

26. As noted above, the delegate raised country information as a general concern in the primary decision, stating:

    Recent reports from the Department of Foreign Affairs and Trade (DFAT) indicate that Syria is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and ongoing ethnic violence. The unrest in Syria may encourage the applicant to remain in Australia after the expiry of any visa should it be granted.

27. During the hearing, the Tribunal raised this information with the review applicant as well as the information about Syria published by DFAT on the Smart Traveller website.[1] The travel advisory states that Australians should ‘not travel to Syria’ due to ‘the extremely dangerous security situation’. The travel advisory also states that ‘[m]ilitary and other armed conflict is ongoing and air strikes, kidnappings and terrorist attacks are common’.  

    1DFAT, Smartraveller, Syria, last updated on 9 August 2019, still current as at 4 September 2019.  

28. When asked to comment on or respond to this information, the review applicant told the Tribunal that he did not consider that the security situation in Syria would be a reason for the visa applicant to come to Australia and not comply with the visa.

29. The review applicant’s oral evidence indicated that he has detailed knowledge of the situation in Syria. His evidence was that the situation in Syria was not as bad as it was a few years ago, when ISIS controlled about 70–80% of the country. He estimated that ISIS controlled 15% of the country now. He explained that his family come from, and the visa applicant lives in, the part of the country adjacent to the Mediterranean Sea where there had been no airstrikes or major clashes between militias and others. He said that because of this, the area had experienced an influx of displaced peoples. He said that he had travelled to Syria in 2013 because he had been very worried about his family. He said that he observed that people continued to live their lives in Syria, despite the security situation. He noted that the visa applicant and other family members had married and that his brothers had started their families. He said that none of his family members thought of or took action to leave Syria. He said that this was because they were living in a safe part of Syria.

30. Having had the opportunity of hearing the review applicant’s oral evidence in person, the Tribunal accepts that the visa applicant is not directly affected by air strikes, kidnappings and terrorist attacks in Syria and enjoys a relatively comfortable existence in Syria.

31. Even though the visa applicant is not directly affected by the extremely dangerous security situation in Syria, the Tribunal is mindful that, nevertheless, it may act as a disincentive for her to return there. However, the Tribunal considers that any residual concern about the danger of the security situation is outweighed by other positive aspects of this case.

32. At the hearing, the review applicant gave oral evidence about a number of the visa applicant’s personal circumstances which would encourage her to return to Syria at the end of the proposed visit.

33. The review applicant told the Tribunal that the visa applicant’s husband, father, three sisters and two brothers and their respective families would remain in Syria. When asked, he said that he considered that the visa applicant had a good marriage and he joked that her husband would kill him if he tried to keep the visa applicant in Australia beyond the term of the visitor visa. 

34. The review applicant gave detailed oral evidence about the visa applicant’s employment. He explained that she was a well-known hairdresser and beautician in the area. He told the Tribunal that she has her own business and employs assistants. He said that she had recently renewed the lease for the shop and the Tribunal notes that documentary evidence corroborating this claim was filed with the Tribunal. He explained that the visa applicant’s husband has a business as a distributor of hairdressing products and he said that his shop was located next door to the visa applicant’s shop. He said that the visa applicant was able to take advantage of this arrangement. In his own words, they were partners in both businesses. He said that he had never asked the visa applicant for details of her income, noting that it was very difficult to have such a conversation. However, he said that from what he had observed, she was in a very good financial position. He said that she has an apartment in her own name. He also said that she never asks for financial assistance but rather she provides gifts for their brothers’ children at Eid and other celebrations.

35. The Tribunal notes that the review applicant submitted some documentary evidence pertaining to the financial status of the visa applicant, including a statement of the visa applicant’s bank balance as at 4 August 2019 (including English translation).

36. After considering all the evidence before it, including the visa applicant’s personal circumstances, on balance the Tribunal considers that the presence of the visa applicant’s husband and the presence of the vast majority of her family members in Syria as well as her livelihood and assets being located there form stronger incentives for her to return to Syria than the incentive for her to remain in Australia with her brother and her sister and their two families.

    CONCLUSION

37. 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

38. 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.

    Justine Clarke
    Member