Yaqo (Migration)

[2019] AATA 5668

Yaqo (Migration) [2019] AATA 5668 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yaqo Yaqo

VISA APPLICANT:  Mr William Sleewa Yaqo

CASE NUMBER:  1926535

HOME AFFAIRS REFERENCE(S):          BCC2019/4141034

MEMBER:Jane Marquard

DATE:19 December 2019

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 19 December 2019 at 9:04am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine intention to stay temporarily for purpose of visa – visiting family – wife, children, extended family, long-term employment and savings in relatively safe region of Iraq – church, social and cultural life – previous travel to Europe and Canada with compliance to visa conditions, and current visa for Canada – review applicant’s offer of bond – decision under review remitted

LEGISLATION

Migration Act 1959 (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 12 September 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant is from Iraq.

2. The visa applicant applied for the visa on 21 August 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 (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 applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 10 December 2019   to give evidence and present arguments. The Tribunal also tried to take oral evidence from the visa applicant by telephone from Iraq. As the telephone connection was very poor, the review applicant agreed to provide written answers to questions raised by the Tribunal member at the end of the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting family, a brother, (the review applicant) in Sydney and a sister in Melbourne. Another brother who was living in Australia has passed away. Visiting family is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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 visa applicant has not travelled previously to Australia. However stamps in his passport demonstrate that he has travelled to Germany, Italy and Canada on more than 5 occasions between 2012 and 2018, and complied with visa conditions in these countries. The applicants confirmed that these visits were for the purposes of holiday, and visiting family. The Tribunal has given this significant weight in consideration of whether he would comply with visa conditions in Australia. Furthermore evidence was provided to demonstrate that very recently, on 21 October 2019, the visa applicant acquired a visa to travel to Canada on multiple occasions until 2023. This does indicate that he has been able to travel and has a current visa to Canada, indicating that he has travelled from Iraq to other countries for genuine temporary stays and that the Canadian immigration authorities have been satisfied that he meets their visitor criteria.

10. 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.

11. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201. The Tribunal has taken into consideration the original purpose of his visit which is to visit his brother for Christmas and New Year’s Eve. Further, he wishes to visit the grave of his older brother Marcos who passed away on 14 June 2019. The Tribunal has noted the request was for a 3 month visa. At the Tribunal hearing he told the Tribunal that he wanted to visit his brother and sister. They have told him how beautiful Australia is and ‘talked about it a lot’. He said that he has already visited other countries many times so now wants to see Australia. His brother Marcos passed away on the 14^th of June so he wants to visit his grave.

12. The Tribunal is satisfied based on his intention to visit his family and the grave, and the fact that he has complied with previous visas in European countries and in Canada, and has a current Canadian visa, that he does not intend to work or engage in study in Australia. Further it would be difficult to work or study within the three month period. The Tribunal is satisfied therefore that he intends to comply with Conditions 8101 and 8201.

13. The Tribunal has considered other relevant matters (cl.600.211(c)) in determining whether the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, for the following reasons.

14. Firstly, the Tribunal has taken into account the visa applicant’s wish to visit his siblings and to pay his respects at the grave of his elder brother who passed away in 2019. He wishes to visit over a holiday period for a three month period only, consistently with his travel to other countries. The intention to visit family and pay his respects at the grave of a brother who died only last year, appear prima facie to indicate an intention to stay temporarily.

15. Secondly, the Tribunal has considered incentives to return to Iraq after the conclusion of his visit in Australia. The visa applicant’s wife and three children, Andi, born 1995, Landi born 1999, and Anderina born 1997 will remain in Iraq when he visits Australia. Copies of marriage and identification cards were provided. While the children are young adults and two of them have degrees, one in business, and one in intellectual property, the younger is still at  technical school and has two years to finish, and all three children live at home with him. The review applicant said as is typical in their culture, the children will not leave home until married. The visa applicant said that ‘my family in Iraq are very dependent on me and I am also very dependent on them. For this reason I would not be able to leave them for an overly extended period of time. My only intention is to visit Australia to see my brother’.

16. The visa applicant also has a large extended family in his region, including uncles, aunts and cousins and ‘social relations are very strong’. The visa applicant said that ‘the ties with my family and relatives are the main reason why I will be returning to my home country at the end of my visit to Australia’. The review applicant said that the visa applicant lives in the centre of the town in a big house, owned by him. A document evidencing ownership was provided. The visa applicant has had a long term full-time job (since 2001) as the chef and Manager of the Cultural Centre, the University of Dohok, as evidenced by a letter from the University of Duhok dated 13 November 2019. The visa applicant said that he has a number of employees who are reliant on him, and he is very involved in the centre’s social and cultural events.  The visa applicant has also provided a letter from Dasnya Bank dated17 November 2019 stating that the visa applicant had opened a bank account in 2012  and that it had a credit balance of around 19 million dinar (about AUD 23 000).

17. The review applicant stated that his brother is the head of the house and socially it would not be acceptable for him as a responsible father and husband to leave the house and go away. He would be ‘blamed by the community’ if he left his family.

18. The visa applicant told the Tribunal that he has many friends in Iraq, with whom he has very strong social relationships. He said that he supports them in ‘their fortunate and unfortunate event (births, marriages, funerals)’. He said that he connects with these people daily and they have positive interactions with each other which he could not leave behind.

19. The visa applicant is also a member of the Chaldean Church of Duhok and said that he is very involved in the Chaldean community within Duhok and the local Government. He provided a number of photographs of him in church attire and in social environments to evidence his ‘strong community and church relationships’. Some of the photographs depicted his mother’s recent funeral which illustrate that his family has strong connections in the community, given the large turnout and the presence of senior church figures, such as the ‘religious patriarch and European Council’.

20. Thirdly, after discussing this matter with the applicants, the Tribunal is persuaded that even though there is instability in Iraq, it is not the intention of the visa applicant to move permanently to Australia even though the review applicant was granted a humanitarian visa. The review applicant came to Australia 24 years ago in 1995 after living for four years in a refugee camp in Syria.  He said that the visa applicant did not want to leave the country and told him that he ‘would never leave Iraq’. Further had his brother needed him to sponsor him under the humanitarian scheme he would have done so. He emphasised that his brother could also have travelled to Lebanon and applied for a humanitarian visa through UNHCR. The review applicant said that the visa applicant is younger than him and never felt the need to come to Australia.

21. The review applicant also submitted that when he was granted a humanitarian visa there was war in the region and persecution because of religion. However the applicants emphasised that circumstances have changed in Iraq and the region where the visa applicant lives, Dahouk, is relatively safe and comfortable. According to them, airstrikes from Turkey have taken place a long distance away from his region and are targeting the mountains where the Kurdistan Workers Party (PKK) reside. The applicants said that Dahouk has no conflict as illustrated by the operation of an American university there and that ‘everything goes on as normal’. Independent country sources do suggest that the area is fairly conflict-free although there is some criminality. Dahouk is part of the Kurdish Regional Government (KRG), an autonomous regional government recognised under the Iraqi Constitution. According to the Department of Foreign Affairs and Trade, the Kurdistan region has experienced lower levels of insecurity than other areas of Iraq.[1] Other reports also refer to the stable security situation in Iraq since the 2014 ISIS conflict.[2]

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq,  October 2018

    [2] European Asylum Support Office Report, Country of Origin Report Iraq, October 2019

22. Finally, the Tribunal has taken into account the assurances of the review applicant, who has been an Australian citizen since 1998. He has said that he ‘swears on the Bible that the visa applicant will return’. Clearly he is a committed Australian who speaks of his country very fondly. He has indicated that he will provide a bond to secure his brother’s return, indicating a certainty that his brother will return at the end of his visit.

23. The Tribunal has considered all of these matters cumulatively, and has been particularly persuaded by the presence of the visa applicant’s wife and children in Iraq and his connections in the community, as well as the fact that he has complied with visas to Canada and in European countries. Considering the matter in its totality 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

24. 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.

    Jane Marquard
    Member