1515821 (Migration)

[2016] AATA 4192

1515821 (Migration) [2016] AATA 4192 (29 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mariam El Chami

VISA APPLICANT:  Miss Samara El Chami

CASE NUMBER:  1515821

DIBP REFERENCE(S):  BCC2015/2561914

MEMBER:Angela Cranston

DATE:29 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 29 July 2016 at 5:41pm

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 13 November 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 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 it was not satisfied that the applicant genuinely intended to visit Australia temporarily.  

5.On 18 May 2016 the review applicant advised the Tribunal that the applicant had obtained a visa from Beirut under prospective spouse. She also stated the following:

As to the review before the Tribunal I feel confident that my sister, Samara, who completed her education in Lebanon wanted to visit us and apparently she met her fiance in Lebanon and applied under partner Visa subclass 300 and the Visa was granted. Therefore I appreciate that you consider a refund because my sister is about to come to Australia and her application for visitor visa should be withdrawn…

6.The review applicant subsequently spoke to the Tribunal asking for the case to proceed.

7.The review applicant appeared before the Tribunal on 29 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

8.The Tribunal explained that it was looking at whether the applicant genuinely intended to stay temporarily in Australia for a visit having regard to whether the applicant had complied substantially with any conditions to which her last substantive Visa was subject, whether she intended to comply with conditions to which the visitor visa would be subject and any other relevant matter.

9.The Tribunal invited the review applicant to comment on the Department of Immigration and Border Protection decision (the Department).

1. The review applicant stated the applicant was in Australia. The review applicant stated she wondered why it was that every time she applied for one of her family members to come to Australia, their application was rejected. She wanted to know if the Department had any personal adverse information about her. She stated that her father had come to Australia three times and departed. Her brother had also arrived and departed in accordance with visa conditions. She stated she came from a family that respected the law and none would overstay their visa. She stated she wanted her mother to visit Australia and she was worried that she too would be rejected by the Department. She stated she thought it was a sad situation when the Department considered the situation in Lebanon in general and did not give enough consideration to her family’s situation and the fact that they respected and complied with the law. She stated she wanted a chance for each of her family members in Lebanon to come to Australia so that they could know their family in Australia. She stated she was a mother with three children and it had been very hard for her to travel to Lebanon in the past and it was easier if her family could come to Australia.  She stated none of her family had broken the law. She stated when the applicant finished her exams, the review applicant was looking forward to her coming but her application had been rejected. She stated she wanted to know if there was anything personal against her.  The Tribunal put to her then if it had adverse information about the review applicant that it would have to put it to her but it did not know anything that was adverse to her case.

2. The applicant stated that she arrived in Australia two weeks ago on a fiancé visa. She was engaged to Ali Alam and they were getting married in a wedding ceremony next weekend. She stated she intended on staying in Australia on the basis of her relationship with Ali Alam and they were going to apply for a visa on the basis of the marriage.

3. The Tribunal put to the review applicant that the application before it was for a sponsored visitor visa and asked if she wanted to pursue that application. She stated she had come to the hearing because she wanted to know if there was any information against her which explained why her family constantly got rejected and she also wanted to know if she was eligible for a refund.

4. The Tribunal indicated that it could not conclusively comment on whether she would be able to obtain a refund. It also stated that it knew nothing adverse about her and it noted that but for the applicant being in Australia on a prospective spouse visa, the case appeared very strong.

5. The applicant stated that she promised that she would respect the laws of Australia.

Movement records  

1. Movement records indicate that the applicant was granted a prospective spouse visa on 5 May 2016 and arrived in Australia on 13 July 2016. The review applicant’s father arrived in Australia on 14 November 2000 and departed on 8 February 2001. He again arrived on 1 June 2011 and departed on 28 June 2011. The review applicant’s brother arrived on 30 January 2015 and departed 2 March 2015.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, all parties presented as credible. The Tribunal notes that the review applicant’s evidence at hearing in relation to her family’s compliance with migration laws is consistent with the movement records for both her father and her brother. The Tribunal also notes the review applicant’s obvious frustration with previous decision making about her family members visiting Australia. This frustration is, in the Tribunal’s opinion, understandable.

3. The visa applicant arrived in Australia on 13 July 2016 on a prospective spouse visa. At hearing, she confirmed that (and in accordance with the intention of the prospective marriage visa) she was engaged to her sponsor, Ali Alam, that they intended to marry and apply for a further visa on the basis of that marriage.

4. Because the applicant has indicated that her intention is to marry and apply for a further visa on the basis of that marriage, the Tribunal is not satisfied that the applicant intends to stay temporarily in Australia for the purpose of a visit.  Accordingly, the Tribunal is not satisfied that she would not remain in Australia after any proposed visit.

5. For the above reasons the Tribunal is not 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 not met.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Angela Cranston
Member