SHABO (Migration)

[2018] AATA 5256

SHABO (Migration) [2018] AATA 5256 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MARKON SHABO

VISA APPLICANT:  Miss Munera Essa Shaba KASHA

CASE NUMBER:  1825163

HOME AFFAIRS REFERENCE(S):           BCC2018/2997388

MEMBER:Tania Flood

DATE:12 November 2018

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 12 November 2018 at 4:06pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – plan to attend family baptism – travel history meeting visa requirements – financial support from employer – commitment to religious community in Iraq – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 600.211, 600.231

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 12 August 2018 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 17 May 2018. 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 (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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that she genuinely intends to visit Australia temporarily.

5. Since the application for review was made the applicants have submitted additional evidence to the Tribunal including statutory declarations from the review and visa applicants; copies of the visa applicant’s passport pages showing her travel history and a letter from the St Thomas the Apostle Chaldean Catholic Diocese of Australia.    As a consequence of the information provided the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

8. The visa applicant was born in Duhok Iraq and is a nun.  She entered the Congregation of the Daughters of the Sacred Heart of Jesus in Erbil on 26 November 1996.  She is one of the consigliore of the congregation; a teacher of novices and pastoral camp worker in the diocese of Erbil.  Her parents, sister and brother live in Australia and she has not seen her parents for about ten years.

9. The review applicant was born in Iraq and is a Christian.  He and his wife have a young baby and they wish for his sister to be present at her baptism.  The review applicant is employed as a full-time Warehouse Operator.

10. The visa applicant’s travel history demonstrates her consistent compliance with visa conditions.  She has undertaken the following overseas trips in recent years:

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

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

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

    4.    2 September 2014 to Italy for study purposes returning to Iraq on 2 March 2017.

    5.    30 May 2017 to France returning to Iraq on 24 June 2017.

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

11. In a signed sworn statement dated 18 September 2018 the visa applicant states the following:

12. She has never been persecuted for reasons of her Christian religion in Iraq.

13. She is able to practice her Christian religion within the Congregation, publicly and privately.

14. She would like to visit Australia to attend the Christening of her niece and to provide temporary emotional support to her ill mother as well as visiting immediate family members she has not seen for over ten years.

15. She will not apply for a Protection visa while in Australia and will return to Iraq before the expiry of her visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting family.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

18. 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)).

19. The review applicant first entered Australia on 7 June 2007 as the holder of a Visitor visa.  He departed Australia before his visa ceased.  On 29 April 2008 he returned to Australia on a further Visitor visa valid until 29 April 2009. On 10 June 2008 he was granted a Prospective Marriage visa and departed the country.  On 14 June 2008 he returned to Australia and on 18 September 2008 he was granted a Partner visa.  On 10 September 2010 he was granted a further Partner visa.  On 26 February 2013 he obtained Australia citizenship.

20. The review applicant sister was granted an XB202 Global Special Humanitarian visa on 18 May 2003 and arrived in Australia on 11 June 2003.  She obtained Australian citizenship on 14 September 2005.

21. The review applicant’s mother and father were granted an XB202 Global Special Humanitarian visa on 15 May 2014 and arrived in Australia on 26 June 2014.

22. The visa applicant was granted a Visitor visa on 13 July 2008 and arrived in Australia on 23 July 2008.  She departed Australia on 20 August 2008 before her visa ceased.

23. 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.

24. A letter from the General Superior of the Congregation of the Daughters of the Sacred Heart of Jesus in Erbil states that the congregation will take responsibility for financially supporting the visa applicant’s trip to Australia.  In addition, the review applicant has undertaken to provide her with accommodation for the duration of her proposed stay in Australia and he has provided proof of his employment and lodgings.  On the basis of this information, and given the applicant’s vocation, the Tribunal is satisfied she will not, and has no need to work in Australia.  Similarly, given her vocation and the stated purpose of the visit the Tribunal is satisfied she will not engage in study or training in Australia.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if she is granted a Visitor visa.

25. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia.

26. The Tribunal notes the delegates concerns that the visa applicant has neither family ties nor an employment status that are likely to act as incentives for her to return to Iraq after a visit to Australia.  However, given her vocation the Tribunal has formed a different opinion.  The available evidence indicates that the visa applicant has been a member of her congregation since 1996 and this explains her lack of dependent family members.  Further, the evidence supports that she is solely engaged in the duties of her vocation.  While it is acknowledged that her immediate family members are living in Australia the Tribunal nevertheless places much weight on her dedication to her vocation in Iraq.  The Tribunal considers her vocation and dedication to her congregation provide a strong incentive for her to return to Iraq after a visit to Australia.

27. Relevantly, the Tribunal also notes the visa applicant previously visited Australia in 2008 and returned to Iraq before her visa ceased.  Similarly, the available evidence supports that she has visited numerous countries including Jordan, Brazil, Italy, France and Germany between 2013 and 2018 and always returned to Iraq.  There is nothing before the Tribunal to indicate she will not similarly return to Iraq after a second visit to Australia.

28. The Tribunal acknowledges that the visa applicant’s parents and sister sought and obtained humanitarian visas to enter Australia.  However, for the same reasons expressed above the Tribunal is persuaded, in light of her vocation and longstanding dedication to her congregation, that she has a different set of circumstances to these family members. The Tribunal finds it significant she has travelled in recent years to various countries where it would have been open to her to seek protection from those governments if required but did not.  In addition, the Tribunal has placed weight on the claims made by the visa applicant in her sworn statement regarding her ability to practice her Christian religion in Iraq.

29. Lastly the Tribunal acknowledges the delegates concerns that reported unrest in parts of Iraq may encourage the visa applicant to remain in Australia.  Notwithstanding that the Tribunal considers the visa applicant’s vocation is a strong incentive for her to return to her congregation and community in Iraq, DFAT’s latest country information report dated 9 October 2018 indicates that the Kurdistan region, where the visa applicant’s congregation is located in Erbil, has experienced lower levels of insecurity than other areas of Iraq.  Furthermore, DFAT reports that violence against Christians in the Kurdistan region is less common despite a remaining Islamic State presence in parts of the country. 

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

31. 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

32. 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.

    Tania Flood
    Member