1512485 (Migration)

[2016] AATA 3498

1512485 (Migration) [2016] AATA 3498 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kairie Mograbi

VISA APPLICANT:  Ms Lina Fattouh

CASE NUMBER:  1512485

DIBP REFERENCE(S):  rl3331241

MEMBER:Linda Symons

DATE:9 March 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 09 March 2016 at 1:34pm

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 18 August 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 18 August 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 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 she 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 7 March 2016 to give evidence and present arguments. 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 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her mother and other family members. This is a purpose for which a visa in the Tourist stream may be granted.

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 17 May 2009 as the holder of a Visitor visa and departed Australia on 13 August 2009 prior to the expiry of that visa. There is no evidence before the Tribunal to indicate that she did not comply with the conditions of that 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 her visit to Australia. The review applicant gave evidence that she is unemployed and on Centrelink benefits. She stated that she and her husband live in a rented three bedroom apartment. She stated that she has seven children in Australia who are all married and have their own families. She stated that she has two daughters in Lebanon including the visa applicant. She stated that the visa applicant will stay with her for part of the time and with her siblings for part of the time when she comes to Australia.

13. The review applicant gave evidence that the visa applicant is employed as an Accountant. She stated that she has been doing that job with the same employer for the last three years. She stated that prior to that she was employed as a hairdresser and beautician and worked from home. She stated that she studied accounting whilst doing that job.

14. The visa applicant gave consistent evidence. She stated that she has savings from her earnings and is able to pay for her airfare and will bring some spending money. She stated that she did not work or study during her last visit to Australia in 2009 and has no intention of doing so if granted this visa. She stated that she has been working as an Accountant for three years without a holiday and wants to have a break when she comes to Australia.

15. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length and purpose of her stay in Australia. The review applicant gave evidence that the visa applicant wants to come to Australia to visit her and her siblings and their families. She stated that she could stay here a month or two. The visa applicant gave evidence that she has three months of accrued leave but does not wish to stay here for that length of time. She stated that her boss has agreed to give her two months leave and she does not want to be away from her children for any longer. She stated that there is someone else at work who can cover her job while she is away but that her boss relies on her to do certain tasks.

16. The review applicant has provided to the Tribunal a letter from the visa applicant’s employer  which confirms that she has been employed at the Kamal El Moubayed Steel Maker Company for three years, has three months accrued leave, has been given permission to take leave for the purpose of travelling to Australia and is expected to return to her employment. She has also provided the Tribunal with a letter from the visa applicant’s landlord that confirms that she rents his property and has pre-paid her rent until 1 June 2016.

17. When asked what incentives the visa applicant had to return to Lebanon, the review applicant responded firstly her children and secondly her job. When asked the same question, the visa applicant stated her children, her job and her life in Lebanon. When asked about her children, the visa applicant stated that she has two sons aged 16 years and 15 years. They are studying. She stated that she got divorced on 8 December 2012 and her children have been living with her since then. She stated that there is no Court order in relation to the custody of the children but that she and her ex-husband have an agreement that the children live with her and he have access to them. She stated that he has contact with them two to three times a week. She stated that there is a Court order in relation to him paying her maintenance for the children. She stated that her ex-husband will care for the children while she is in Australia and that her sister will also look after them.

18. The Tribunal has had regard to other relevant matters. The review applicant gave evidence that she, her husband and children (including the visa applicant) immigrated to Australia. She stated that one of her children got very ill shortly thereafter and they returned to Lebanon. She stated that they lost their visas as a result and had to reapply for their visas. She stated that they were granted visas in 1993. She stated that the visa applicant came to Australia on her visa but subsequently got married and did not want to live in Australia. She stated that the visa applicant came to Australia with her children on Visitor visas in 2009. She stated that she complied with her visa at that time and left Australia before her visa expired. The visa applicant gave evidence that she had not considered immigrating to Australia or overstaying her visa. She stated that she had the opportunity to do so in 2009 but did not do so.  

19. The review applicant gave evidence that the visa applicant has recently been divorced and has been through a lot. She stated that her family asked her if she would consider immigrating to Australia but she said no. She stated that the visa applicant would never leave her children.

20. The review applicant gave evidence that she has no savings but is prepared to ask her children in Australia to give her some money to lodge a security bond. She stated that she does not think she will be able to raise more than $5,000.00.

21. Having considered all the evidence, the Tribunal places considerable weight on the visa applicant’s immigration history in Australia. The Tribunal also accepts that the visa applicant’s two children and her job provide strong incentives for her to return to Lebanon. The Tribunal accepts that the visa applicant intends only to visit the review applicant and her siblings and their families in Australia. The Tribunal accepts that the review applicant is prepared and able to provide financial security to ensure that the visa applicant complies with the conditions of her visa and that this would be a strong incentive for the visa applicant to comply with her visa conditions.

22. 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

23. 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