Solaka (Migration)

[2021] AATA 2865

Solaka (Migration) [2021] AATA 2865 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Akram Booya Solaka

VISA APPLICANT:  Mr Sabah Boya Solaka Kaka

CASE NUMBER:  1914457

HOME AFFAIRS REFERENCE(S):          BCC2019/1525111

MEMBER:Stephen Witts

DATE:2 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 August 2021 at 10:42am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant and compliance with conditions – incentives to remain or return – compliant travel to other countries – elderly applicant with wife and some family, church and community activities in home country, and extended family in Australia – economic and social conditions in home country – 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 Home Affairs on 31 March 2019 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 applied for the visa on 26 March 2019. 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 Tourist 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). 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 intends to stay in Australia temporarily for the purposes for which the visa is granted.

5. The review applicant appeared before the Tribunal on 22 July 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant, Mr Sabah Kaka, the review applicant’s brother.

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

   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. 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 Tourist stream may be granted: cl 600.221 and cl 600.222.

10. 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 Tribunal notes that there is no evidence before it that either applicant has ever breached substantive visa conditions.

11. 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 600.611):

    ·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.

12. According to the delegate’s decision record dated 31 March 2019 provided to the Tribunal by the applicants the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted. According to the delegate the visa applicant is a 70-year-old (as at time of decision) Iraqi national residing in Iraq. According to the delegate the visa applicant requested a visa to visit his siblings and other family in Australia. According to the delegate it considered that the visa applicant had not seen his siblings for more than 27 years but was not satisfied that compassionate grounds outweigh the concerns the delegate had regarding the conditions that will be placed on the visa. According to the delegate it took into account the visa applicant’s economic circumstances in his home country relative to Australia, it considered that the visa applicant had been retired since 2014 and did provide some evidence of personal funds and property back in Iraq. According to the delegate it also considered family links as an inducement to return noting that although there was a wife that there were no remaining dependent family members in Iraq to provide an incentive to return home. According to the delegate it also considered conditions generally in Iraq and contended that that evidence of civil unrest would act as an encouragement to remain in Australia permanently.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. The Tribunal has considered a statement from the visa applicant dated 10 April 2019 where he stated that he does not want to live in Australia permanently, and that he wishes to return to Iraq after his visit to be with his wife. He noted in his submission that this was his sixth application for a visitor visa and that his siblings have become severely affected by this and that he has become depressed. The Tribunal also notes that a statement has been provided by a local member of Parliament in support of the application and other members of the family here in Australia have also provided letters of support.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

15. In particular the Tribunal has considered a submission provided by the review applicant which includes passport material and financial information from the visa applicant’s home country and which includes a statement from the review applicant stating that his brother visited Australia in 2010 and did not overstay his visa, that the review applicant has never sponsored any other relatives, that the visa applicant is employed by a provincial Council and does earn an income, that he has been married since 1972 and that he has a brother, nephews, nieces and cousins, that he is elected by the Christian community to be their representative on a provisional council, that he has donated money and time to build accommodation for elderly people in which he is deeply engaged, that he has a lot of friends in the community and loves his country and that these circumstances would encourage him to return home. It was also stated that he has applied for visitor visas on multiple occasions and that these applications have been unsuccessful and that he loves to travel and in the past 10 years he has been to Europe several times including visiting France, Sweden, the United Kingdom and other countries.

16. At the hearing the visa applicant stated that he has a wife and a brother and sister back in his home country and that he also has another brother in Sweden and that there are several family members in Australia including two brothers, one of which is the review applicant, and one sister and that they have 16 children between them here in Australia. He stated that the purpose of his visit to Australia was to visit his siblings in the family and that they are like his own children but that he loves where he lives back in his home country and only wants to visit Australia as he has heard it is a beautiful country.

17. The review applicant stated that his brother would be a genuine visitor and that he would return home to his wife who was a teacher. He stated that his brother has lived in his country even during the Iran/Iraq war and for a period of time worked overseas but still returned back to his home country during this time. He stated that his brother has also visited Europe and stayed in several countries including Sweden and England. It was stated that he was a mathematics teacher and that he will respect Australia’s law.

18. The Tribunal has considered the evidence provided by the applicants carefully noting that the visa applicant does have his wife back in his home country. However, the Tribunal is concerned by the evidence provided in regard to significant family members here in Australia including a significant number of nephews and nieces. It is noted by the Tribunal that the visa applicant has no dependent children of his own and that although he has not seen his siblings here for 27 years it was clear that he felt close to his siblings here in Australia and their families. The Tribunal has also considered that the visa applicant is retired now and has little incentive to return to his home country other than for the voluntary community work he has been doing and that once here with his siblings he could seek to remain here permanently and develop a methodology whereby his wife could come and join him here. The Tribunal has considered statements by the applicants that the visa applicant has visited other countries in Europe and had opportunities potentially at that time during those visits to permanently relocate to another country including Sweden where he has one brother. The Tribunal has considered this matter carefully but is concerned that it is in Australia where the visa applicant has most of his extended family. It is further noted again that the applicant has no dependents or dependent family members back in his home country. It is also noted that as the visa applicant is retired there are no employment incentives for the applicant to return and that although he may own property and have some funds back in his home country that nevertheless property can be leased out or sold and bank account funds can be transferred here to Australia at a later date. The Tribunal finds that these circumstances lend weight to the contention that the visa applicant may not genuinely intend to stay here temporarily for the purpose for which the visa is granted.

19. The Tribunal has also considered that the economic, and social circumstances back in the visa applicant’s home country of Iraq are not particularly stable according to country information reports recently issued by the Department of Foreign Affairs and Trade which refers to the countries limited economic opportunity and stability for its citizens. The Tribunal considers that the circumstances of recent years are a significant factor promoting migration to Australia. The Tribunal has considered this information very carefully but is not satisfied that the conditions back in the visa applicants’ home country are conducive to him having a genuine intention to stay in Australia temporarily for the purpose for which the visa is granted. The Tribunal finds that this lends weight to the contention that the visa applicant may intend to stay in Australia long-term.

20. Accordingly, the Tribunal is not satisfied that if the applicant were to come to Australia that he would not seek to change his status on shore, given the benefits that he would derive. The above-mentioned factors give the Tribunal concerns that the applicant would seek to change his status on shore and/or remain in Australia and that the applicant does not genuinely intend to stay temporarily in Australia.

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

22. For the above reasons the Tribunal is not 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 not met.

    DECISION

23. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Stephen Witts
    Member