YONAN QASHA (Migration)

[2022] AATA 1594

YONAN QASHA (Migration) [2022] AATA 1594 (24 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Arshad Yousif Sulaiman YONAN QASHA

VISA APPLICANT:  Miss Sanaa Yousif Slaiman YONAN OASHA

REPRESENTATIVE:  Mr Al Musawi BAKER (MARN: 0601647)

CASE NUMBER:  2005123

HOME AFFAIRS REFERENCE:               BCC2020/554817

MEMBER:L. Symons

DATE:24 March 2022

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 24 March 2022 at 3:49pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visit her mother – commitment to her Church and school – incentives to return to Iraq outweigh her incentives to remain in Australia – good international travel history – strong incentives to depart Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 10 March 2020 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 24 February 2020. 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 she was not satisfied that she genuinely intends staying temporarily in Australia for the purpose for which the visa is granted.    

5. The review applicant appeared before the Tribunal via video on 16 March 2022 to give evidence and present arguments. The Tribunal also received evidence from the visa applicant via telephone. 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 his migration agent, Mr Baker Al Musawi, who attended the hearing via video.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 a family visit. 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)). There is no evidence before the Tribunal to indicate that the visa applicant has visited Australia previously.

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 (mandatory condition)

    ·8201 – must not engage in study or training in Australia for more than 3 months (mandatory condition)

    ·8503 – not entitled to a substantive visa, other than a Protection visa, while remaining in Australia (discretionary condition)

    ·8558 – must not stay in Australia for more than 12 months in any period of 18 months (discretionary condition)

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that he is the carer for his mother who has been diagnosed with Alzheimer’s and dementia. He previously worked part time but since his mother’s health  has deteriorated, he has had to give up work to care for her on a full time basis. He has a son who has autism and his wife takes care of him. He has a daughter who is in High School. He owns a share in a (family) house in Iraq, savings of approximately $20,000.00 and two cars. He has no debts. He and his family live in a three bedroom house rented from the Church.

13. The review applicant gave evidence that he will provide the visa applicant with accommodation and pay for her living expenses in Australia. The visa applicant is a nun,  works in a Primary School and receives a salary. The Church will pay for her airfare to and from Australia. She will bring some pocket money with her. She has savings of 30 million Iraqi dinar and a share in the (family) house in Iraq. She has no debts. She is not planning to work, study or undertake any training in Australia.

14. The visa applicant gave evidence that she has been a nun since about 1997. She works at a Primary School and has worked at her current place of employment since about 1 April 2018. She is paid a monthly salary of 1.5 million Iraqi dinar. The Church will pay for her airfare to and from Australia. She will live with the review applicant during her stay in Australia and he will pay for her living expenses. She will bring some money with her for other expenses. She has savings from her salary including 30 million Iraqi dinar in her bank account. She has no debts. She is not planning to work in Australia. She has work commitments in Iraq that she has to return to. When asked if she is planning to study or do any training in Australia, she responded that it depends on the Church’s needs.

15. The Tribunal has been provided with English translations of a number of documents including a letter dated 7 February 2022 from the Superior General of the Chaldean Congregation of Nuns in Iraq. It confirms that the visa applicant is a Chaldean Catholic nun serving in the Chaldean Community in Sulaymaniyah, Iraq and that the Order will pay for her airline tickets. The Tribunal has been provided with a letter dated 12 February 2022 from the Principal of the Ashty Private Elementary School. It confirms that the visa applicant has worked there since 2017 and earns a salary of 1.5 million Iraqi dinar (per month). The Tribunal has been provided with a Statement dated 1 March 2022 from the Rafidain Bank which indicates that the visa applicant has a balance of 30 million Iraqi dinar in her bank account.

16. In considering whether the visa applicant intends to comply with conditions 8503 and 8558, the Tribunal discussed the proposed length and purpose of her visit to Australia and her personal circumstances. In her application for a Visitor visa, she applied for a single entry visa up to 3 months with planned travel dates from 1 May 2020 to 29 July 2020. She stated that the purpose of her travel was to visit her sick mother, attend her brother’s wedding, visit other relatives and visit the Church.

17. The review applicant gave evidence that the visa applicant now has time off from work from 1 May 2022 to 1 July 2022 and would like to come to Australia for this period. She is committed to her work and the Church and has to return at the end of this period. When asked why she wants to come to Australia, he responded that their mother is deteriorating and she wants to visit her and help her for one last time. As a nun she has dedicated her work to God. She helps people in need including those who are sick and old. When asked about his plans for her visit, he responded that the plan is for her to relax for the first week. In the second week they will take her to visit Churches. In the third week they will show her around Sydney. After that they may visit Canberra or Queensland.

18. The Tribunal asked the review applicant whether the visa applicant has had any problems in Iraq because of the current political and security situations. He responded that she has not. She works and lives in the Kurdistan region which is safe and different from the rest of Iraq. When asked whether she has had any problems in Iraq because she is Catholic and a nun, he responded no. On the contrary, she is much appreciated in Islam because she is a nun. They associate her with Mary.

19. The Tribunal asked the review applicant what incentives the visa applicant has to return to Iraq at the end of her holiday in Australia. He responded that, as a nun, the people in her Church are her family and her family is in Iraq. She has commitments in Iraq. Morally and religiously she is not willing to lie to or cheat anyone or to harm him. She had the opportunity to apply for a Humanitarian visa when she went to Europe but did not do that. Her morals did not allow her to do that. Even before he and part of their family travelled to Australia, they were able to add her name to the file. She was against that and refused to leave Iraq which is the land of her ancestors.

20. The visa applicant gave evidence that under the Church’s rules she is only allowed to come to Australia for 2 months. She has to return after that because of her commitments. When asked why she wants to come to Australia, she responded that she wants to visit her mother who is elderly and in poor health. This may be the last time she gets to see her. She also wants to visit some Churches, religious sites and some landmarks in Australia. She also has siblings in Australia she would like to visit.

21. The Tribunal asked the visa applicant what she knows about her mother’s health. She responded that she knows that she has Alzheimer’s, does not recognise people and sometimes does not recognise their names. She also has problems with blood pressure, cholesterol and her joints. When asked whether she was coming to Australia to look after her mother, she responded that she would look after her for the period of 2 months. She really misses her mother and her mother misses her. She asks her sisters about her and where she is.

22. The Tribunal asked the visa applicant whether she has had any problems in Iraq because of the current political and security situations. She responded that she has not faced any problems. She lives in the Kurdistan region. It is safe and settled there. People move there because it is safe. A few years ago the Pope visited the Kurdistan region. Even the Pope complimented Kurdistan saying it is an example of where people live in harmony together. When asked whether she had any problems in Iraq because she is Catholic, she responded “no. Never. We living safely”. When asked whether she had any problems in Iraq because she is a nun, she responded “nothing”.

23. The Tribunal asked the visa applicant what incentive she has to return to Iraq at the end of a holiday in Australia. She responded that the most important thing is her commitment to her Church and school. The land of her ancestors is precious to her. It is the land of civilisation. It is her heart and soul. She will miss it very much and will be wanting to return. When asked what would happen if she came here, changed her mind and decided not to go back to Iraq because she wanted to take care of her mother until she passes away, she responded that she will be returning to Iraq. Her mother has two sons and two daughters (in Australia) to look after her. She gave herself to God and the Church. She is no longer her mother’s daughter. She is the Church’s daughter.

24. The Tribunal has been provided with copies of a number of supporting documents. The Tribunal was provided with a Medical Certificate dated 10 February 2022 from Dr Haider Jasim from the Warrawong Accident and Medical Centre. It indicates that the review applicant’s mother has a severe cognitive impairment, misses her daughter who lives in Iraq and has not seen her for 6 years. He supports the visa applicant’s application to visit her mother for humanitarian reasons. The letter dated 7 February 2022 from the Superior General of the Chaldean Congregation of Nuns in Iraq indicates that the visa applicant is invited for a short visit to Australia from 1 May 2022 to 1 July 2022 and is obliged to return to her convent and resume her duties by the rules of the Congregation.

25. The Tribunal has been provided with a letter dated 12 February 2022 from the Principal of the Ashty Private Elementary School which indicates that the visa applicant has been given permission for a vacation from 1 May 2022 to 31 July 2022 for the purpose of travel. The Tribunal was provided with a letter dated 13 February 2022 from the Archbishop of Kirkuk and Sulaymaniyah. It indicates that the visa applicant has been serving in the Kirkuk and Sulaymaniyah diocese parish of St Joseph Chaldean Catholic Church in Iraq and wants to visit her sick mother in Australia. The Church guarantees her return to Iraq. 

26. The Tribunal has considered other relevant matters. The review applicant gave evidence that the visa applicant has travelled to several countries in Europe, Dubai and possibly Turkey. She went to Rome on a pilgrimage and travelled to Germany to visit their sisters. She has never been refused a visa to any country other than Australia.

27. The visa applicant gave evidence that she has travelled to Jordan three times; in 2005 to attend a Preschool course in Amman, in 2016 to say goodbye to the review applicant (before he travelled to Australia) and in 2018 to say goodbye to a sister and another brother before they travelled to Australia. She has travelled to Germany three times in 2005, 2016 and 2018. She travelled to Dubai in 2006. In 2012, she travelled to Italy and went to Rome on pilgrimage. She also travelled to France, Belgium and Holland. She has visited her (four) sisters in Germany. She has never been refused a visa to any country other than Australia.

28. The Tribunal has been provided with copies of the visa applicant’s passports showing entry and exit stamps and visas.

29. The review applicant gave evidence that two of his four sisters who live in Europe visited Australia 4 years ago. His other two sisters who live in Europe want to visit Australia this summer. If the visa applicant overstays her visa, he will not be able to get anyone to visit them in Australia. She does not want to cause trouble for him and would not do this to him.   

30. The Tribunal was provided with written submissions from the review applicant’s migration agent which the Tribunal has considered.

31. Having considered all the evidence and the submissions, the Tribunal finds that the review applicant and the visa applicant are credible witnesses. The Tribunal accepts that the visa applicant’s Church will pay for her airfare to and from Australia. The Tribunal accepts that the review applicant will provide her with accommodation and pay for her living expenses during her stay in Australia. The Tribunal accepts that she will bring some money with her to cover other expenses in Australia. The Tribunal accepts that she has no intention of working or engaging in any study or training in Australia. Therefore, the Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 of her visa.

32. The Tribunal accepts that the visa applicant’s primary purpose in coming to Australia is to visit her elderly and sick mother as she is concerned that it may be the last time that she sees her. The Tribunal accepts that she also wants to visit her siblings and their families in Australia as well as to visit Churches and places of interest. The Tribunal accepts that she does not intend becoming a long term carer for her mother. The Tribunal accepts that she has a deep commitment to her Church, her employment and her country and these commitments provide strong incentives for her to return to Iraq after a visit to Australia.

33. The Tribunal is of the view that the visa applicant’s travel history indicates that she has had plenty of opportunities to overstay visas or to seek permanent residence in other countries but has not done so. The Tribunal accepts that she had the opportunity to apply for a Humanitarian visa for Australia when she visited her family in Jordan but did not wish to do so. The Tribunal accepts that she also had the opportunity to seek protection in Germany when she visited her sisters there but refused to do so. 

34. The Tribunal accepts that the review applicant wishes to have his siblings and their families visit their mother and other siblings in Australia. The Tribunal accepts that the visa applicant will not jeopardise the chances of other family members visiting Australia in the future by overstaying her visa.

35. The Tribunal accepts that the visa applicant has no intention of living in Australia permanently. The Tribunal accepts that her incentives to return to Iraq outweigh her incentives to remain in Australia after the end of her permitted stay. The Tribunal is satisfied that the visa applicant will comply with conditions 8503 and 8558 of her visa. 

36. 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

37. 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.

    L. Symons
    Member