1514295 (Migration)

[2016] AATA 3558

1514295 (Migration) [2016] AATA 3558 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khaled Kanj

VISA APPLICANT:  Mr Wassim Kanj

CASE NUMBER:  1514295

DIBP REFERENCE(S):  BCC2015/1559716

MEMBER:Adrian Ho

DATE:18 March 2016

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 18 March 2016 at 2:08pm

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 22 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 1 June 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.

5. The review applicant appeared before the Tribunal on 18 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her sister and their mother, the visa applicant. 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 registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her children and their families. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)).

12. The visa applicant has never held a substantive visa for Australia.

13. 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.

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

    Findings

15. The review applicant gave frank, clear and transparent evidence at hearing.

16. The movement records of his father (1990), mother (2011) and brother, Nidal (2004), confirm his evidence that each of those three individuals made compliant visits to Australia in the years indicated.

17. The review applicant gave frank evidence that the visa applicant is not married, has never left Lebanon, studied computer engineering, has been a customs officer for around 7 years, and earns USD 1000+ a month.

18. He also gave evidence that he has a brother resident in France with a PhD in Economics, and a brother resident in Italy, who is a doctor.

19. He gave transparent evidence that the family is from 30km outside of Tripoli and are all Sunni Muslims.

20. The tribunal finds the review applicant generally credible and places weight on the compliant visits made by three immediate family members of the visa and review applicant. 

21. The tribunal considers that there are few more direct and convincing ways to demonstrate an intention to comply with the visitor visa scheme than to have made a compliant visit to Australia.  Three immediate family members of the visa applicant have done so.  The tribunal considers that historically compliant visits carry greater weight, than the statistical non-return rate or the general political or security situation in the country of origin.  A compliant visit demonstrates that despite an adverse statistical average for the country, or adverse circumstances in the country, a visitor, given the opportunity to conduct themselves in a manner inconsistent with visa conditions, has nevertheless complied.

22. The profile of the visa applicant is not such as to suggest that he will not do as his father, mother and brother have done before him in this regard.  The tribunal considers that past compliant visits by immediate family members are important matters which suggest that members of the family are disposed to comply with visitor visa conditions, and due weight should be given accordingly.

23. The review applicant offered to place a security of up to AUD 20000 for the visa, which provides the tribunal with some additional confidence in finding that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and that the requirements of cl.600.211 are met.

24. The visa, if granted, would be the visa applicant’s first and it is not inappropriate to consider imposing a security in these circumstances.

    DECISION

25. 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.

    Adrian Ho
    Member