Nassar (Migration)

[2019] AATA 2607

Nassar (Migration) [2019] AATA 2607 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Nassar

VISA APPLICANTS:  Mr Marwan Abdulkrim NASSAR
Mrs Sobhie DODONE

CASE NUMBER:  1803879

HOME AFFAIRS REFERENCE(S):           

MEMBER:Linda Holub

DATE:15 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 May 2019 at 10:25am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visit sons and families – incentives to remain in Australia – security situation in Syria – currently reside in Saudi Arabia – no permanent residency – risk of changing immigration status once onshore – 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 Immigration on 16 January 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 7 December 2017. 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 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 visas on the basis that the visa applicants did not meet cl.600.211 because in both cases the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia. .

5. The review applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

BACKGROUND

1. The review applicant, who was born in March 1981 is originally from Syria.  He visited Australia in November 2003 and in August 2004 was granted a Prospective Marriage (TO-300) visa.  In April 2013 he was granted a Partner (UK-820) visa.  He has two biological children, a step-daughter and he and his wife are expecting another child in June 2019.  He has one brother and various aunts, uncles and cousins in Australia.

2. The first named visa applicant is a citizen of Syria, born in February 1948.  The second named applicant is a citizen of Lebanon.  She was born in November 1951.  They lived in Aleppo until six years ago when they left because of the war in Syria to live with one of their sons and his family  in Saudi Arabia.  They initially lived in Lebanon for approximately two years.  They reside in Saudi Arabia on a visitor visa, which they must renew on a regular basis.  The second named visa applicant has a number of siblings who reside in Australia.

CONSIDERATION OF CLAIMS AND EVIDENCE

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.

10) In the present case, the visa applicants seek the visas for the purposes of visiting their sons and families. 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)).  The first named applicant travelled to Australia in 2008 on a Tourist (TR-676) visa and the second named applicant visited Australia in 2007 on a Sponsored Family Visitor (679) visa.  Both visa applicants complied with their visa conditions.

12) The Tribunal explained to the review applicant that it considers their migration history to be positive but cannot give it significant positive weight in light of the fact that they departed Syria because of the conflict and reside in Saudi Arabia on a visa that must be regularly renewed.

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) The review applicant gave evidence that he and his family live in a four bedroom home in Sefton with his wife and children.  He indicated that they have a mortgage on their home and that their only other assets are their two cars.  They have no other debts.  The review applicant is a carpenter and works for himself.  He stated that last year his annual income was around $30,000-$40,000 as he spent much of his time working on his own house.  He stated in the previous year it was between $70,000 and $100,000.  His wife does not work outside the home.

15) The Tribunal heard consistent evidence that the first named visa applicant had a car sales business in Syria prior to leaving the country.  The visa applicants reside with their son in Syria and although they have some savings they rely mainly on that son to support.  The review applicant also provides them with some financial support.  The Tribunal was told that their expenses are not high.  They still own a house in Aleppo from which they receive a small income.

16) The Tribunal was told that the visa applicants would stay with the review applicant and his family.  He would pay for their travel costs and support them during their stay. 

17) The review applicant stated that aside from their other son and his children in Saudi Arabia, the main incentive for them to return to Saudi Arabia is that it holds a sacred place for Muslims and they wish to die there.  The visa applicants in their evidence referred to the same incentive for them to return to Saudi Arabia if they are granted the visa to travel to Australia.  The Tribunal was also told that the visa applicants are old, that they cannot speak English and they would not like living in Australia.

18) The first named applicant is in good health except for some minor ailments.  The second named applicant was diagnosed with breast cancer approximately 15 years ago and after surgery, no longer has cancer.  She takes medication for high blood pressure.

19) The review applicant referred to having applied for refugee visas for the visa applicants.  He stated that he received bad advice from migration agents.  He stated that his parents wanted him to visit them in Saudi Arabia, but due to his work and family responsibilities he is unable to do that.  He stated that everyone told him that it is virtually impossible to obtain Visitor visa for anyone coming Syria.  He stated that he asked for advice from the Department but was only referred to pamphlets.  He explained that he had problems with migration agents boasted about the number of people he assisted obtain visas, but only built up false hope and created problems for him by directing him to apply for protection for the visa applicants.  He stated that the agent didn’t even tell him that his parents had been refused.  He only found out after his local MPs office helped him.  He stated he would not do anything illegal and has a good driving record. 

Findings

20) Having considered all the evidence, the Tribunal accepts that the visa applicants wish to come to Australia for three months for the purpose of visiting their sons and to spend time with their grandchildren. The Tribunal accepts that the review applicant has undertaken to fund the cost of the trip.  The Tribunal accepts that the visa applicants have no intention of working studying or undertaking any training in Australia.

21) The Tribunal accepts that the visa applicants’ primary motive for applying for this visa is to visit family members.  However, the Tribunal is not satisfied that in light of their situation that this may not been their only intention in applying for this visa. The Tribunal is of the view that the incentives for the visa applicants to remain in Australia after the end of their permitted stay far outweigh the incentives to them to return to Saudi Arabia. The Tribunal has regard to the fact that their left worn Syria and do not have permanent residency in Saudi Arabia.  The Tribunal acknowledges the evidence of the review applicant that many people reside in Saudi Arabia for many years on a temporary basis.  The Tribunal also acknowledges the review applicant’s evidence that Lebanon is an option for the visa applicants as the second named visa applicant is a citizen of Lebanon and also that the situation in Syria has improved in more recent times.

22)  Despite the assurances given by the review applicant that the visa applicants will comply with the conditions of his Visitor visa, the Tribunal is not satisfied that they will not seek to change their immigration status once they comes to Australia.  The Tribunal has had regard to the evidence of the review applicant that the visa applicants had applied for protection. 

23) The Tribunal accepts that the visa applicants wish to die in Saudi Arabia, however, given the evidence presented during the hearing regarding their health, the Tribunal did not give this wish significant weight in its decision.

24) The Tribunal has considered whether the lodging of a security bond will ensure the visa applicants’ compliance with the conditions of their visas and is not satisfied that it will do so. Therefore, the Tribunal finds that the visa applicant does not meet the requirements of cl.600.211.

25) The Tribunal is very sympathetic towards the review applicant and his family and the visa applicants regarding their hope to spend time together and to meet the review applicant’s children.  Nevertheless, 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.

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

27) 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

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

Linda Holub
Member