1517089 (Migration)

[2016] AATA 4186

1517089 (Migration) [2016] AATA 4186 (21 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr ALI HASSAN

VISA APPLICANT:  Mr WALID DEIB

CASE NUMBER:  1517089

DIBP REFERENCE(S):  BCC2015/2672995

MEMBER:Adrian Ho

DATE:21 July 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 21 July 2016 at 5:12pm

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 8 October 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 10 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.

5. The review applicant appeared before the Tribunal on 21 July 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 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)).

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

10. 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.

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

    Findings

12. The review applicant gave clear and transparent evidence at hearing.

13. Based on that evidence the tribunal is satisfied the review and visa applicant’s families are from Qabaait village in the Akkar district of northern Lebanon.  The family is all of Sunni faith and the incomes of the family are derived from farming and by the running of provision stores.

14. The tribunal accessed movement records of the following individuals – respectively, the mother and elder brother of the visa applicant:

    a.Ms Badrieh Hassan (DOB 25 Aug 1972);

    b.Mr Ali Deib (DOB 15 Feb 1989).

15. Their movement records reflect that they made separate compliant visits in 2012 and 2013. 

16. The circumstances of Ali Deib, in particular, are not to dissimilar to that of his brother, the visa applicant.  He was a young unmarried man at the time of the visit and of similar social-economic position as his brother is now.  The tribunal accepts the visa applicant runs a store in the village, is not involved in politics, is not directly affected by conflict between Sunnis and Alawites in the Tripoli area, and leads an otherwise unremarkable life.

17. 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.  Two 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.

18. The profile of the visa applicant is not such as to suggest that he will not do as his 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.

19. 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 intends to comply with the above conditions and 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.

20. 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

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.

    Adrian Ho
    Member