1515271 (Migration)

[2016] AATA 3760

1515271 (Migration) [2016] AATA 3760 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Chadia Ali

VISA APPLICANT:  Mrs Hammadie Dib

CASE NUMBER:  1515271

DIBP REFERENCE(S): BCC2015/2012973 BCC2015/2622812

MEMBER:Antonio Dronjic

DATE:26 April 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 26 April 2016 at 2:29pm

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 29 September 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 4 September 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 26 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) 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

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 daughter and recently born granddaughter. 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)).

10. The Departmental movement records indicate that the visa applicant arrived in Australia on 12 February 2010 as a holder of subclass a visitors’ visa which remained valid until 12 May 2010. The movement records also indicate that the visa applicant departed Australia on 9 May 2010. There is no evidence before the Tribunal of any non-compliance with conditions of previously issued visitors’ visa. I give significant weight to this evidence.

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.600.612):

    ·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.

12. 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.

13. The visa applicant is 66 years of age, female national of Lebanon. She is and has been married for more than 45 years. She has fourteen children. Seven are living in Australia and seven in Lebanon. The visa applicant lives at a family home with her husband and three children. They are farmers.

14. The review applicant is the visa applicant daughter. She came to Australia in April 2012 as a holder of a spouse visa. Her husband is a truck driver and, together with their recently born daughter, they live in a rented apartment.

15. The review applicant invited her mother to stay with her and his family for the period of up to three months as her mother did not have a chance to see her granddaughter in person. The review applicant maintains regular telephone contact with her parents. She is unable to travel to Lebanon because she has severe back problem and because her daughter is still too young to travel.

16. She have evidence that her parent own a farm in a town Mechmech in Northern Lebanon; that they live a peaceful and good life and had never experience any security problems.

17. Based on the evidence before it, the Tribunal is satisfied that the visa applicant 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 her husband of more than 45 years and seven children staying behind.

18. As discussed with the review applicant at hearing, the civil unrest in Lebanon suggests that there may be a strong incentive for persons living in Lebanon to overstay the period allowed in their visas or to apply for other visas. In these circumstances it is very difficult for applicants from Lebanon to demonstrate they will comply with the conditions of their visa and not overstay. The review applicant pointed out that situation in Lebanon has always been tense but that security situation in Northern Lebanon is good. The evidence before the tribunal indicates that the visa applicant has previously travelled to Australia and complied with conditions attached to that visa despite the security concerns in Lebanon in 2010.

19. I explained to the review applicant the conditions to which a visa in the circumstances of this case would be subject and likelihood of the Department making a request for the security deposit.

20. I am satisfied on the evidence that the visa applicant will not overstay the visa period or apply for another visa in Australia. I explained to the review applicant that if she was do so, her other family members living in Lebanon will have difficulties applying for visitors’ visa in the future.

21. I am satisfied that the visa applicant will abide by the conditions of the visa and not seek to work or study whilst in Australia. On balance, I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Accordingly I find that the applicant meets cl.600.211.

    DECISION

22. 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