1603016 (Migration)

[2016] AATA 4515

1603016 (Migration) [2016] AATA 4515 (12 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hiam Awad

VISA APPLICANT:  Mrs Hanife El Asmar

CASE NUMBER:  1603016

DIBP REFERENCE(S):  Not Recorded

MEMBER:Mila Foster

DATE:12 October 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 12 October 2016 at 10:33am

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 7 January 2016 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 December 2015[1]. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the visa applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

   [1] For the purposes of conducting the review, the Department provided the Tribunal with a file containing the visa application (‘the Department file’).

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 had demonstrated sufficient personal, financial or employment circumstances which may act as incentives for the visa applicant to return to Lebanon and comply with the conditions of a visitor visa. The delegate thus found that the visa applicant’s expressed intention to visit Australia was not genuine. 

5. The review applicant appeared before the Tribunal on 11 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. 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. In deciding this matter I have given significant weight to the oral evidence given by the review applicant and visa applicant at the hearing. I found both to be credible witnesses. Their testimony was persuasive. It was given in a clear and forthright manner, and the evidence of one was consistent with the other.

8. On the oral and documentary evidence before me I accept that the visa applicant is a 58 year old Lebanese citizen who lives in Lebanon with her husband, and three unmarried adult children - a son and two daughters. One of her daughters is a young widow with a child. The visa applicant’s husband has for a long time worked as the manager of a café. Her son is a well-paid professional footballer who travels overseas regularly to play football and also has a football coaching business in Lebanon. One of her daughters is studying nursing at university while the other is studying child care at college. The visa applicant’s husband and son financially support her, her daughters and grandchild. They are financially comfortable. The visa applicant is the youngest of 10 siblings all of whom live in Lebanon and to whom she is close to.  

9. The review applicant is the visa applicant’s daughter from a previous short marriage. The visa applicant and her former husband had come to Australia in 1974 but after 7 months the visa applicant left her former husband and returned to Lebanon pregnant with the review applicant. The review applicant, who was born in Lebanon, is the only child of that marriage. The review applicant came to Australia, where her father had continued to live since 1974, when she was 22 years old. She subsequently married here and had three children. The review applicant and her children are the only family the visa applicant has in Australia. The review applicant has visited her mother in Lebanon twice since settling in Australia – once with her husband and her then 6 month old first child and more recently with her husband and all three of her children. The visa applicant has visited her daughter and grandchildren in Australia once, in 2005, for the birth of the review applicant’s second child.

10. 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:

    a.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;

    b.whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject;

    c.and any other relevant matter.

    The purpose of the visit

11. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter, the review applicant, who is an Australian citizen[2] and her daughter’s family, her three children and her husband, for a period of 3 months. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

    [2] Department file, f.15.

    Substantial compliance with conditions of last visa

12. 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)).

13. On the evidence before me, the last substantive visa the visa applicant held was a visitor visa granted on 17 August 2005[3]. The visa was granted for a stay of 3 months and the visa applicant departed Australia after two months[4]. She therefore complied with the 8503 - no further stay and 8531 – must leave before visa expiry conditions of the visa. There is no evidence before me that the visa applicant failed to comply with the other visa conditions attached to that visa (8101 – no work, 8201 – maximum 3 month study, and 8205 – x-ray if study greater than 4 weeks). I am thus satisfied on the evidence before me that the visa applicant has substantially complied with the visa conditions of the last substantive visa she held.

    [3] Tribunal file, f.38; Department file, f.17.

    [4] Ibid.

    Intention to comply with conditions

14. 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.

15. The visa applicant testified that she intends to comply with the conditions of the visa. I am satisfied on the evidence before me, particularly the testimony of the visa applicant and the review applicant, that the sole reason the visa applicant wants to come to Australia is to visit her daughter and grandchildren. I find that the visa applicant has no need nor does she have any intention to work or study or train here. Further, having regard to the matters outlined below, I find that the visa applicant has every intention of returning to her family in Lebanon before the end of the period of stay permitted by the visa and has no intention of applying for any other visa during her visit. I thus accept that the visa applicant intends to comply with the conditions which would attach to the visa.

    Other relevant matters

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

17. I am satisfied that the review applicant’s personal circumstances in Lebanon would encourage her to return home after her proposed visit. The review applicant has a happy and comfortable life in Lebanon with her husband and three other children. She feels a responsibility towards her husband and children in Lebanon. These are very strong personal ties. Further, all 10 of the review applicant’s siblings are also there.

18. I have concluded that there are no circumstances or conditions in Lebanon that would encourage the visa applicant to remain in Australia. Compared to the strong and extensive personal ties the visa applicant has in Lebanon, her personal ties to Australia are limited to her daughter and three grandchildren. The visa applicant is not employed in Lebanon but nor she does she seek to be employed because she is financially well supported by her husband and son. I noted at the hearing that the review applicant lives in Tripoli where there have been problems between some members of the Sunni and Alawite communities there. She agreed that there were some such problems in the past, but there have been no such problems in the last 18 months and, in any case, her area was not affected by those problems. That the situation has improved recently is consistent with information I have[5] and I accept that the past instances of sectarian violence between the Jabal Mohsen and Bab al-Tabbaneh neighbourhoods of Tripoli has not adversely impacted on the visa applicant.

    [5] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 18 December 2015, at [3.15] – [3.16], and [3.23].

19. The visa applicant’s previous compliance with the conditions of the visitor visa she was granted in 2005 when she came for the birth of her daughter’s second child indicate that she would once again comply with the conditions of a visitor visa. The review applicant testified, and there is no evidence to suggest otherwise, that the review applicant had not sponsored or invited any person who has visited Australia[6].

    [6] The review applicant had invited her step-sister, the visa applicant’s youngest daughter, to visit Australia but she was refused the visa in January 2013: Tribunal file, ff.29-32.

20. The purpose of the visa applicant’s visit, to visit her daughter and grandchildren, is in my opinion entirely consistent with the proposed 3 month duration of the visit. I found the desire expressed by the review applicant and visa applicant for the visa applicant to visit Australia so that they can spend time with each other as mother and daughter, and for the visa applicant to spend time with her grandchildren, to be entirely credible, sincere and genuine.

21. For the above reasons, I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and find that the requirements of cl.600.211 are met.

    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.

    Mila Foster
    Member