1510943 (Migration)

[2016] AATA 3053

1510943 (Migration) [2016] AATA 3053 (8 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chadi Lichaa

VISA APPLICANT:  Mr Toni Lichaa

CASE NUMBER:  1510943

DIBP REFERENCE(S):  BCC2015/1473456

MEMBER:Linda Symons

DATE:8 January 2016

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 08 January 2016 at 5:07pm

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 15 June 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 to the Department of Immigration and Border Protection (the Department) for the visa on 21 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 Department 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 8 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 his brother and 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.

10. The records of the Department indicate that the visa applicant travelled to Australia on 29 May 2008 on a Visitor visa and departed on 27 August 2008 prior to the expiry of his Visitor visa. There is no evidence before the Tribunal to indicate that he did not comply with the conditions of this 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. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for the visa applicant’s visit to Australia. The review applicant gave evidence that the visa applicant will stay with him while he is in Australia. He stated that he invited the visa applicant to visit Australia, attend his son’s Christening and be his Godfather. He stated that he is prepared to pay for his airfare to and from Australia and his expenses in Australia. He stated that he owns a house, two cars and savings of approximately $100,000.00. He stated that the visa applicant did not work, study or engage in any training on his last trip to Australia in 2008 and has no intention of doing so if granted this visa.  

13. The visa applicant gave evidence that he is employed as a supervisor at a cheese factory and has been there since 2006. He stated that he owns a house, a car, has savings of approximately $7,000.00 and an insurance policy worth approximately $4,000.00. He stated that he has no debts. He stated that he did not work or study on his last trip to Australia and has no intention of doing so if granted this visa.  

14. During the hearing, the Tribunal discussed with the review applicant and the visa applicant the security situation in Lebanon. The review applicant gave evidence that the village the visa applicant lives in is remote and small. He stated that all the villagers in his village are Maronite as are all the villagers in the surrounding villages. He stated that there are no conflicts over religion in the village. He stated that there are no security issues in the village or a radius of about 50 kilometres around the village. He stated that there are no Syrian refugees in the area. He stated that the visa applicant has not had any problems in Lebanon. The visa applicant gave evidence that was consistent with the evidence of the review applicant.  

15. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length of his proposed stay in Australia. The visa applicant gave evidence that he would like to come to Australia for one month. He stated that he has the accrued leave from his job. When asked what incentives he had to return to Lebanon, he stated that he needs to return to work. He stated that his employer will be expecting him to return. He stated that he needs to return to Lebanon and continue his life. He stated that he has a girlfriend. He stated that he has just built a house.

16. The visa applicant gave evidence that he is close to the review applicant and just wants to visit him and return home. He stated that the review applicant has a large family and cannot travel to Lebanon. When asked what would happen if he came to Australia and then changed his mind, he responded that if he wanted to change his mind he would have done so in 2008.

17. The Tribunal has also considered other relevant matters. The review applicant gave evidence that he has three young children and his wife does not wish to take them to Lebanon and stay in a remote village. He stated that he has not been able to visit his family in Lebanon since 2011. He stated that his parents are reluctant to visit him in Australia as they have a farm. He stated that the visa applicant assists their father on his farm when he is not at work.

18. The review applicant stated that he has sponsored his parents and another brother and they have visited Australia previously. He stated that they complied with the conditions of their visas and returned to Lebanon. He gave evidence that the visa applicant has visited Australia previously and complied with the conditions of his visa. He gave evidence that he is so confident that the visa applicant will comply with the visa conditions that he is prepared to lodge “his house” and all his savings as security.  

19. Having considered all of the evidence, the Tribunal places considerable weight on the immigration history of the visa applicant and members of his family in Australia. The Tribunal accepts that the visa applicant’s financial commitments, his job, his family and his girlfriend will provide strong incentives for him to return to Lebanon. The Tribunal is of the view that the lodging of a security bond by the review applicant will also provide an incentive for him to comply with the conditions of his visa.

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.

    Linda Symons
    Member