1510937 (Migration)

[2015] AATA 3933

1510937 (Migration) [2015] AATA 3933 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Doha Chaouk

VISA APPLICANT:  Mr Maher Omar El Charif

CASE NUMBER:  1510937

DIBP REFERENCE(S):  BCC2015/1294978

MEMBER:Antonio Dronjic

DATE:21 December 2015

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 21 December 2015 at 12:06pm

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 28 July 2015 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 5 May 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 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 temporarily in Australia for the purpose for which the visa is granted. 

5. The review applicant appeared before the Tribunal on 14 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone link. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The review applicant was represented in relation to the review by her 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 her sister and her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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 never been in Australia and has never applied for an Australian visa.

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.600.612):

    ·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.

11. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has discussed the matters relevant to cl.600.211 (b) and (c) below. The Tribunal made the following findings on the oral evidence and the documentary evidence available.

12. The visa applicant is 44 years of age national of Lebanon. He is married and has three underage children living with his wife in Lebanon where he owns property. He is and has been working at a construction company in Saudi Arabia since April 2006 as a foreman. He is not a permanent resident of Saudi Arabia. His contract is automatically renewed at the beginning of every calendar year. He would like to travel to Australia for a period less than one month in order to spend some time with his sitter and her family. He has provided evidence of employment, income and savings. Apart from Saudi Arabia, he did not travel to any other country. This is his first application for an Australian visitors’ visa.

13. The review applicant is visa applicant’s sister. She is married and together with her husband owns two properties in Australia. She is not employed.  She first came to Australia in 1983 as a holder of a spouse visa. She has five sisters and two brothers. Two of her sisters live in Lebanon, one in Abu Dhabi one in America and one in Brazil. Her other brother lives in Romania. None of her siblings visited Australia or ever applied for an Australian visa.

14. She travelled to Lebanon some two months ago to visit her relatives. She saw the visa applicant on this occasion. Her previous travel to Lebanon was in 2008. She maintains monthly telephone contact with her brother. The visa applicant will reside at her home during the proposed visit. The visa applicant has sufficient funds required for his travel and stay in Australia.

15. I granted the applicant additional time until 21 December 2015 to provide an updated letter from his employer from Saudi Arabia. This letter was submitted on 18 December 2015.

16. Based on the evidence before it, the Tribunal is satisfied that Mr Maher Omar El Charif genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal considered the fact that the visa applicant has substantial family ties to Lebanon with three underage children, wife, parents and two siblings. The tribunal gives significant weight to the finding that the visa applicant is and has been living and working in Saudi Arabia since April 2006, that he has steady employment and income enabling him to support his family in Lebanon. There is no evidence before me that he has ever failed to comply with his Saudi Arabia’s visa conditions.

17. The Tribunal was satisfied that Mr Maher Omar El Charif will abide by the conditions of the visa and not seek to work or study whilst in Australia or overstay the permitted period of the stay in Australia. On balance, the Tribunal was satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted

    DECISION

18. 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.

    Antonio Dronjic
    Member