Taha (Migration)

[2019] AATA 1824

Taha (Migration) [2019] AATA 1824 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Reema Zahar Taha

VISA APPLICANT:  Mrs Fatima Fadel

CASE NUMBER:  1726836

HOME AFFAIRS REFERENCE(S):           BCC2017/3591961

MEMBER:Paul Windsor

DATE:31 May 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 31 May 2019 at 11:10am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting daughters – intention to comply with visa conditions – security situation in Syria – credible witnesses – country information – 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 22 October 2017 to refuse to grant the visa applicant, Mrs Fatima Fadel, a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 1 October 2017. 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 (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 Mrs Fadel intended a genuine temporary stay.  While acknowledging that Mrs Fadel had complied with the conditions of a previous Australian visa when she travelled to Australia in 2009, the delegate gave this ‘limited weight’.  The delegate, while accepting that the applicant may not be directly affected by the civil unrest occurring in parts of Syria, found that civil unrest in Syria at this time may encourage her to remain in Australia after the expiry of any visa should one be granted.

5. The review applicant, Mrs Reema Taha, who is the visa applicant’s daughter, appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Frank Kandakji, her sister, Mrs Lara Taha, and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   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 her daughters in Australia. 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)).  Mrs Fadel travelled to Australia in 2009 on a Visitor visa.  She complied with the conditions of that visa and departed within the validity of the visa.

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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

12. Mrs Fadel is 65 years of age and is not in the paid workforce in Syria.  The Tribunal finds there is nothing to indicate or suggest that she intends to work or undertake training in Australia in beach of the above visa conditions.

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)). Clearly, the key issue in this case is whether the security situation in Syria, and particularly in the area of Syria around Ms Fadel’s home in Latakia, is such that she would not wish to return to Syria if granted a visa to visit her daughters in Australia. Accordingly, the Tribunal has carefully weighed Mrs Fadel’s personal circumstances against country information concerning the situation in Syria. The Tribunal had regard to the economic overview and comments on the security situation in the 2017 Thematic Report on Conditions in Syria by the Department of Foreign Affairs and Trade (DFAT),[1] and to the most recent Situational Update on Syria by the Department of Home Affairs (DHA).[2]  The DFAT report includes the following observations:

    [1] DFAT Thematic Report on Conditions in Syria, 23 October 2017, sections 2.10-2.13 and 2.18-2.24.

    [2] Department of Home Affairs, Syria Situational Update, November 2018, pages 2-6.

    ·The economic impact of the conflict is large and continues to take a heavy toll on Syrians remaining in the country. The World Bank has estimated that Syria’s GDP contracted by 63 per cent between 2010 and 2016. The Syrian conflict has caused an estimated USD 226 billion in economic losses. It could take more than two decades to re-build the economy to pre-war levels.

    ·According to the UN-led 2017 Humanitarian Needs Overview, an estimated 85 per cent of the Syrian population lives in poverty, with 69 per cent living in extreme poverty. The World Bank reports that the main causes of poverty are loss of employment and property, lack of access to services, and rising costs.

    ·The World Food Programme estimated in 2017 that 53 per cent of the labour force was unemployed, including 78 per cent of youth, and an even higher proportion of women. Unemployment has led to an increasing number of people migrating to secure a livelihood.

    ·Poverty is concentrated in areas most affected by conflict, and areas that were historically poorer (e.g. rural areas). DFAT assesses that some areas, particularly those that have been under the continuous control of the government (e.g. Damascus), have been less affected by the conflict, but basic services have been strained in all areas.

    ·The security situation in Syria remains extremely dangerous. Large-scale military operations involving small arms, artillery and airstrikes continue in many parts of the country.

    ·In Astana in May 2017, Russia, Turkey and Iran agreed to establish four de-escalation zones in Idlib, northern Homs, Eastern Ghouta (in the outskirts of Damascus) and the south-western governorates. As at August 2017, this has led to some reduction in violence, but no significant improvement in humanitarian access. Russia, the United States and Jordan have brokered a ceasefire zone in south-western Syria. These moves follow a series of temporary ceasefires throughout 2016.

    ·While in-country contacts suggest some areas of Syria (mainly government-controlled areas that have remained under government control throughout the conflict, such as Damascus) are relatively safer, the potential remains for the situation to deteriorate rapidly and without notice. The presence of pro-government forces and their increasing ability to establish and maintain checkpoints throughout Damascus has increased indiscriminate targeting of civilians perceived to have links to opposition or competing pro-government forces. Even in relatively safe areas, the risk of bombing and attacks persists as non-state armed groups execute asymmetric attacks behind government lines, or against each other.

    ·The government has retaken significant territory and, as of August 2017, controls most major urban areas in western Syria, including Aleppo, Hama, Homs and Damascus, as well as the Mediterranean governorates of Latakia and Tartus.

    ·DFAT assesses that, while security conditions may differ across the country depending on who controls any given area and whether it is contested, overall the situation remains highly volatile. All civilians are vulnerable to physical harm caused by deliberate targeting, politically motivated or sectarian-related detention and indiscriminate violence.

14. The DHA report includes the following observations:

    • Since the last (March 2018) situational update for Syria, the security situation in some government controlled areas of the country has stabilised, particularly in the south of the country and the Damascus region. This follows the ousting of rebel and Islamic State (IS) forces from most areas of southern Syria.  A degree of normalcy has begun to return to parts of the Syrian capital Damascus, although challenges remain in respect to humanitarian issues and destroyed infrastructure. The improved security situation is symbolised with the re-opening of the Syrian National Museum in Damascus in October 2018 after six years, and an up-tick of tourists from Jordan to the Syrian capital, following the re-opening of the Syria-Jordan boarder to traffic.
    • In large areas of the country however the security situation remains dangerous with many parts of the country continuing to experience attacks and violence.
    • The number of civilians killed in the conflict has decreased to its lowest level since the start of the war, dropping from a high of 6,657 in May 2015 to 139 in September 2018. Forces associated with the Syrian government have now re-taken significant parts of the country from rebel forces and Islamic state (IS). Following the July 2018 offensive, the Syrian government now controls around 60 percent of Syria, including nearly all of the southern areas of the country. Government forces control most major urban centres, including the capital Damascus, as well as the city of Homs and most of Aleppo. Following the June/July government offensive in the south, rebel forces from various factions now only control Idlib, and an enclave on the outskirts of Aleppo adjacent to Idlib. An area around the Iraq-Syria border crossing is controlled by the Kurdish aligned Syrian Democratic Forces (SDF) at Al Tanaf where a United States (US) military base is also located.

15. At the hearing Mrs Taha, her husband and her sister all presented as highly credible witnesses.  They explained that Latakia town, where Mrs Fadel lives, is not conflict affected, and indicated that they and their families, including their young children, have visited Latakia in the last few years, which they would not have done if they felt there was any risk to their or their children’s safety.  They indicated that at the height of the conflict they arranged to meet Mrs Fadel on vacation in Turkey, after which she returned to Latakia in Syria.  They indicated that Mrs Fadel’s husband, who is a trained lawyer, now works from home as a real estate broker in Latakia.  As referred to in submissions, he suffers chronic heart disease and is not able to travel internationally, and Mrs Fadel provides care and support to him in managing his diet, exercise and medication.  Mrs Fadel’s third daughter lives nearby in Latakia, is doing a PhD in civil engineering, has two children and is pregnant with her third child.  Mrs Fadel provides assistance to her daughter with the care of her two children and wishes to be in Latakia for the birth of her daughter’s third child.

16. Mrs Lara Taha explained to the Tribunal how heartbroken she was when her mother was refused a Visitor visa to come to Australia to support her for the birth of her child.  She indicated that she suffered depression at that time.  The family stressed that, if Mrs Fadel was granted a visa to visited Australia now they would not want anything to jeopardise the prospects of her obtaining a further Visitor visa in the future particularly to support Mrs Lara Taha in any further pregnancies.

17. When the Tribunal spoke with Mrs Fadel her evidence was consistent with that of her daughters and son-in-law.  She also indicated that she does voluntary work two days a week at an orphanage, which she is very committed to, and that she has a wide circle of friends in Latakia and an active social life.  She commented that the situation in Syria is very good for her and that she is happy and content.  She stressed that her husband is in Syria, her daughter and her daughter’s children are there, she has a social life and she loves her country.  She commented that she just wants to be able to visit her two daughters and their families in Australia for 4-6 weeks.

18. The representative added that if the families in Australia had wanted their mother to come to Australia permanently they could have done this at the height of the conflict because she meets the balance of family test and they have the means to fund a Contributory Parent visa for her.

19. After considering Mrs Fadel’s personal circumstances and the relevant country information, and noting the more recent advice that the security situation in government controlled areas of Syria has stabilised and the number of civilians killed in the conflict has decreased to its lowest level since the start of the war, the Tribunal accepts that the security situation in the Latakia area is not a ‘push factor’ for Mrs Fadel that would cause her to remain in Australia beyond the validity of the visa if granted.

20. 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

21. 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.

    Paul Windsor
    Member