Shabo (Migration)

[2023] AATA 4873

Shabo (Migration) [2023] AATA 4873 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Markon Shabo

VISA APPLICANT:  Ms Munera Essa Shaba Kasha

REPRESENTATIVE:  Mr Samir Shiba

CASE NUMBER:  2309042

HOME AFFAIRS REFERENCE(S):          BCC2023/2443826

MEMBER:Luke Hardy

DATE:31 July 2023

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 31 July 2023 at 2:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – presence of family and siblings in Australia – previous travel history – undertaking from the review applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; 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 26 May 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, Ms Kasha, is an Assyrian Catholic nun residing in Iraq. She applied for the visa on 21 April 2023. 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 applicant applied for the visa 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 (Cth) (the Regulations). Relevant 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 did not believe Ms Kasha would visit Australia only temporarily:

   In [her] application, the applicant, Munera Essa Shaba Kasha, stated that the purpose of [her]
   visit is to attend [her] niece’s wedding and to visit [her] unwell parents.

   The applicant has provided evidence that [she has] travelled to several countries. I give
   this previous travel limited weight as evidence that [she] intend[s] a genuine temporary stay,
   since the applicant has ties to Australia that [she] did not have to these countries, namely the
   presence of [her] parents and siblings. As such, I have given the applicant’s previous visa
   compliance limited weight in my assessment and turned my mind to the applicant’s current
   circumstances and find the plausibility  they may induce the applicant to remain in Australia
   beyond the validity of a subclass 600 visa ...

   The applicant has declared [she has] been employed since 26 November 1996 as Nun and
   Teacher at Congregation of the Daughters of the Sacred Heart of Jesus in Iraq. While I have
   afforded the applicant’s employment claims some weight, I am not satisfied the applicant’s
   employment circumstances would act as a strong incentive for the applicant to return to [her]
   home country at the end of the proposed stay.

   Moreover, I note from the applicant’s declared employment, the applicant’s religion is a
   known minority group. Therefore, I have significant concerns the applicant’s personal
   circumstance may rather induce the applicant to seek to remain beyond [her] proposed stay
   in Australia.

5. I note here that I am not sure I understand what the immediately preceding paragraph means.

6. To continue:

   The applicant has provided no details of [her] own financial circumstances and has not
   provided evidence of savings, ongoing salary or pensions or other streams of revenue. In the
   absence of such information, I am not satisfied the applicant’s financial circumstances would
   induce [her] to return home at the end of [her] proposed stay. Moreover, with no evidence
   of the applicant’s financial circumstances before me and noting the current economic
   circumstances in Iraq, I am satisfied the applicant’s personal financial circumstances may
   induce the applicant to seek to remain beyond [her] proposed stay in Australia.

   The applicant is leaving behind [her] adult sibling in Iraq. I accept under usual circumstances,
   that this family member may constitute an incentive for the applicant to return to Iraq after
   a visit to Australia. However, given the current political, security and economic conditions in
   Iraq, I am not satisfied that these links constitute a strong incentive for the applicant to return
   there. Additionally, the applicant’s family links in Australia constitute a significant incentive
   for the applicant to remain in Australia beyond the validity of the visa for which [she has]
   applied. On balance, I find the applicant has greater incentives to remain in Australia than to
   return to [her] home country. The combination of these factors leads me [not to] be satisfied
   that the applicant’s expressed intention to visit Australia temporarily is genuine.

   I acknowledge that the purpose of the applicant’s intended travel is to attend [her] niece[’s]
   wedding and to visit [her] family. I have also noted the compelling circumstances that have
   motivated the applicant to lodge an application for an Australian visa and have given this
   some weight in my decision. However, while the circumstances are compelling, this in itself
   does not demonstrate that the applicant intends a genuine temporary stay. In weighing the
   information before me, including the applicant’s circumstances in [her] home country and
   [her] travel history, I am not satisfied that the applicant intends a genuine temporary stay.

7. The review applicant, Mr Shabo, who is the brother of Ms Kasha, sought review of the delegate’s decision.

8. A 12 July 2023 statutory declaration from Ms Kasha’s niece, Ms Marina Matti, who is an Australian citizen, discusses the imminent wedding preparations (the date being 11 August 2023) and the fact that visitor visas have been granted to those of Ms Kasha’s siblings who currently reside in France and Germany. The statutory declaration also describes the age and infirmity of Ms Kasha’s parents in Australia, arguing the emotional benefit to those parents that a visit by Ms Kasha would bring them. It is easy to infer from the information provided that a reunion between the three around this time could be the last.  A letter of support for the visit has been provided by a representative of the Assyrian Catholic Church in Australia.

9. The applicants’ adviser lodged a submission on 31 July 2023. The submission, dated 28 July 2023, makes the following points:

   The purpose of this appeal is to highlight the vital and crucial nature of her visit to
   Australia, as it involves a significant family gathering and attend the wedding of her niece,
   Marina MATTI on 11 August 2023 as well as to spend time with other family members,
   especially her ill and aged parents. Please be advised that Ms Munera Essa Shaba
   KASHA has travelled to various countries and always complied with her visa conditions.
   Below are some of the countries the Applicant visited and always complied with her visa
   conditions:

   1. 23 July 2008 to Australia returning to Iraq 20 August 2008;

   2. 2 January 2013 to Jordan returning to Iraq 27 February 2013;

   3. 16 July 2013 to Brazil returning to Iraq 1 August 2013;

   4. 2 September 2014 studied in Italy returning to Iraq on 2 March 2017;

   5. 30 May 2017 to France returning to Iraq 24 June 2017; and

   6. 2 March 2018 to France, from France to Germany returning to Iraq 24
   March 2018; and

   7. Her last visa to Australia was granted on 22 November 2018 …

   During her last visit to Australia, the Applicant Munera strictly complied with her visa conditions.

   We believe that her case merits reconsideration due to the compelling reasons provided below ...
   It is submitted that the Applicant, Ms. Munera Essa Shaba KASHA is a devout nun from
   26 November 1996 who has previously visited Australia, strictly adhering to all visa
   conditions during her previous stays. Her compliance with Australian visa regulations
   demonstrates her commitment to the legal requirements of her temporary stay in the
   country. This track record underscores her trustworthiness and responsible behaviour,
   leaving no doubt about her intention to uphold her visa conditions if granted the visa.
   The primary reason for Ms. Munera Essa Shaba KASHA's visit to Australia is an
   extraordinarily significant family gathering. As it stands, her entire family, including her
   beloved priest brother, is planning to gather in Australia for an event of utmost importance,
   which is the wedding of the niece, Ms. Marina MATTI on 11 August 2023. The family
   reunion is a rare occasion that holds profound emotional and spiritual significance for Ms.
   Munera Essa Shaba KASHA, as it allows her to bond with her loved ones and share
   cherished moments together, especially her niece and her parents.

   Moreover, her presence at this family gathering is not only essential to her own well-being
   but is equally important to the emotional well-being of her parents. Her spiritual guidance
   and support have been invaluable to her relatives, especially during challenging times,
   and they are eagerly awaiting her presence during this significant event and gathering.

   Additionally, we would like to bring to your attention that the sponsor brother is
   wholeheartedly committed to ensuring the compliance of Ms. Munera Essa Shaba KASHA
   with her visa conditions. In a remarkable display of faith and trust in his sister, he has
   expressed his willingness to forfeit the surety money if, by any unforeseen circumstance,
   Ms. Munera Essa Shaba KASHA fails to comply with her visa conditions. This gesture
   demonstrates the level of trust and responsibility vested in her by her family ...

10. The tribunal received flight booking information indicating that Ms Kasha intends to travel from Erbil, Iraq on Saturday 5 August, arriving in Sydney on Monday 7 August 2023, departing Australia on 6 September 2023.

11. The review applicant, Mr Shabo, appeared before the Tribunal on 31 July 2023  to give evidence and present arguments. The Tribunal was asked to received oral evidence from Mr Shabo’s sister and his niece Ms Matti but it was not necessary to hear oral testimony from either. The applicants’ adviser attended the hearing.

12. The Tribunal hearing was facilitated by an interpreter in the Arabic-English medium.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. In the present case, the visa applicant, Ms Kasha, seeks the visa for the purposes of attending her niece’s wedding on 11 August 2023, and visiting her parents for what could possibly be the last time. These are purposes for which a visa in the Sponsored Family stream may be granted: cl 600.231.

16. 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)).

17. The Tribunal must also consider whether Ms Kasha 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.

18. On the evidence before me I am wholly satisfied that Ms Kasha will comply with all conditions that will be placed on the visa she seeks.

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

20. In this case, I have arrived at different views on the facts that the conclusions made by the delegate.

21. Regarding Ms Kasha’s financial circumstances, I accept that, as a nun, Ms Kasha would always have very limited resources of her own and not likely be able to rely on financial support from her religious order. However, I give more weight to the undertaking from Mr Shabo to accommodate her and support her financially during her visit.

22. I note that many of the countries visited by Ms Kasha, not least of all Australia, are signatories to the UN Convention and Protocol Relating to the Status of Refugees.  There is no evidence to suggest she has ever tried to claim asylum in any of these. She has evidently returned from every visit abroad to her religious order and work as a teacher in Iraq. I give some weight to Ms Kasha’s actions in returning to Iraq even during times of socio-political upheaval there.

23. Regarding the evidence of past travel abroad, I note the delegate giving weight to Ms Kasha’ having no parents or siblings in other countries she has visited. I am not confident this is correct, given the evidence in this matter of siblings in France and Germany, both of which countries Ms Kasha demonstrates having visited only temporarily. I give some weight to Ms Kasha’s evident visa compliance and voluntary return to Iraq on those occasions. Meanwhile, notwithstanding a larger number of close relatives residing in Australia, Ms Kasha has twice complied with the requirement that her visits here be temporary and not in excess of valid visa duration. I give weight to Ms Kasha’s evident visa compliance and voluntary return to Iraq after visiting Australia and her relatives here on the two past occasions. 

24. Whereas the delegate has acknowledged Ms Kasha’s work with the Congregation of the Daughters of the Sacred Heart of Jesus in Iraq as “employment”, I am prepared to accept on the evidence that it is also a “vocation”, as it were, and one that has been strong enough to call her back even from Australia in 2008 when Iraq was still in turmoil, having invaded by armed forces from the USA, Australia and the UK, and at that time still suffering violent sectarian struggle. The country was still occupied in 2008.[1] Shiite militias were at war with (essentially Sunni or pro-Sunni) security forces.[2]

    [1] Council of Foreign Relations, “The Iraq War”

    [2] Council of Foreign Relations, “The Iraq War” >

    It is not clear what precise point the delegate was making about Ms Kasha being a member of a religious minority, particularly since the delegate does not explain what relevance this has to Ms Kasha’s “personal circumstances”. It may be that the delegate was concerned Ms Kasha might seek protection in Australia on religious grounds, but there is no evidence before me to such effect. Rather, there is more evidence to suggest that even in situations where the opportunity to seek asylum arose, Ms Kasha did not exploit them. I give no negative weight in this matter to Ms Kasha’s religious status as a factor heightening the possibility of her seeking to remain in Australia.

25. Overall, I am satisfied that this Visitor visa application has been made entirely in good faith.  

26. 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

27. 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.

    Luke Hardy
    Member