1728691 (Migration)

[2018] AATA 4814

1728691 (Migration) [2018] AATA 4814 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728691

MEMBER:Moira Brophy

DATE:18 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for [Ms A] for reconsideration, with the direction that the visa applicant meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in respect of the additional visa applicants.

Statement made on 18 October 2018 at 3:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant criteria – tourist stream – trip to visit father and sisters – incentives to return –  carer duties – commitment to mother , son and brother  – credibility – acknowledged past immigration history – prepared to lodge security bond – substantially complied with terms of granted visas – decision under review remitted for reconsideration

PRACTICE AND PROCEDURE – Secondary visa applicants – separate applications required – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.221, 600.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 November 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 5 November 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Tourist 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 concerned the purpose of the visit was not a genuine temporary stay.

5. The review applicant, [Ms B] appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant [Ms A].

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

   Background

7. The primary visa applicant is [an age]-year-old national of Lebanon. She is divorced and has one child, a son born in [year]. Her mother and son live in Lebanon and are not accompanying her on her visit to Australia. Her father and two sisters reside in Australia. Her brother and her nephew applied to come to Australia with her. [Ms A] has been employed since 2015 [in a certain role] at [University 1]. The applicant had previously been refused Tourist visa applications in 2006, 2011 and 2016. She had been granted Tourist visas in 2001, 2007 and 2011.She applied for a Tourist visitor visa on 5 November 2017 for the purpose of visiting her father and sisters

8. The review applicant (Sponsor), [Ms B] is [an age]-year-old citizen of Australia. She is the sister of the applicant and is married with 2 daughters. She arrived in Australia in 2011 was granted a protection visa in 2014 as a dependent. She had previously visited Australia on a Tourist visa in 1998, 2002, 2007, 2011.

9. The following documents were provided to the Department in support of the application:

   • Confirmation of [Ms A]’s enrolment in [University 1] dated 6 November 2017 (folio 12)
   • Letter from [University 1] confirming [Ms A]’s employment (folio 14)
   • [Ms A]’s bank statement dated 1 November  2017(folio 15)
   • [Ms A]’s Passport biodata
   • Letter from [Mr C]’s employer dated 3 November 2017 (folio 11)
   • [Mr C]’s handicap card (folio 13)
   • [Mr C]’s Family Civil Registration (folio 17)
   • Attestation of adhesion from the Lebanese Federation of the Deaf for [Mr C] (folio 18)
   • [Mr C]’s Passport biodata
   • [Mr D]’s Passport biodata
   • Letter of invitation from [Ms B] dated 3 November 2017 (folio 21)
   • Letter from [Ms A] dated 20 November2017 (folio 23)
   • Letter from the review applicant’s psychiatrist (folio 106)

10. On 5 October 2018, the applicant provided the following documents to the Tribunal (all documents already on file):

    • Email from [Ms B] dated 20 November2017
    • Copy [Ms A]’s Passport
    • Letter from [Ms A] dated 20 November2017
    • Letter from [University 1] confirming [Ms A]’s employment dated 1 October 2018.
    • [Ms A]’s student card from [University 1]
    • Letter from [Mr C]’s employer dated 3 November 2017
    • [Mr C] and [Mr D]’s passport
    • [Ms A]’s Bank Statement dated 4 October 2018
    • Letter of invitation from [Ms B] dated 3 November 2017

    Preliminary Jurisdictional Issue

11. At the time of application for review there were three visa applicants named. At the time of lodgement in addition to the primary visa applicant [Ms A] application there was an application lodged by her brother [Mr C], and an application lodged by his son [Mr D]. The review applicant sought review of each of those decisions.

12. On 8 December 2018 the Tribunal wrote to the review applicant and put her on notice of potential jurisdictional problems with the application for review. Namely that all three applications could not be considered under the one application for review, i.e. separate applications would need to be made to the Tribunal and further that the person applying for review must be an Australian relative who was included in the visa application and was also a parent / spouse / de factor / child or sibling of the visa applicant.

13. At the time of hearing these matters were discussed with the review applicant. The Tribunal advised it only had jurisdiction in respect of the visa applicant [Ms A].

14. The Tribunal did not have jurisdiction to hear and determine the visa applications lodged by [Mr C] and [Mr D].

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In the present case, the visa applicants seek the visas for the purposes of visiting her father and her sisters and their families. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

17. 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)).

18. At the time of hearing the visa applicant told the Tribunal that she had previously been refused Tourist visa applications to visit Australia in 2006, 2011 and 2016. She had been granted Tourist visas in 2001, 2007 and 2011. She said the refusal in 2006 was at the time of the war in Lebanon and she applied the following year and was granted the visa.

19. She said in addition to her trips to Australia she had travelled to USA, France, Italy, Spain, United Kingdom, Egypt, Malaysia, UAE and Greece. She said she had always complied with the terms of any relevant visa and apart from the refusal of Australia to grant her a visa she had no other visa refusals. Her history of compliance has been recognised by the fact the USA has granted her a five year visa. She travels to France four times a year.

20. The Tribunal accepts the evidence given by the visa applicant that she has to date substantially complied with the terms of any visas he has been granted.

21. 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.

22. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the sponsor as to why the visa applicant was seeking to come to Australia to visit her family. The sponsor had recently had some health issues and was particularly reliant on the support of her family. She was especially close to her mother and the visa applicant. While she had spent periods of time back in Lebanon receiving treatment and staying close to her family she needed to be in Australia because of her daughters. Her older daughter was preparing for her wedding and her younger daughter had just commenced high school. She did not want to be away from them. She asked the visa applicant to come and spend some time with her here. In addition the visa applicant had not seen her other sister since she was in Australia in 2011 and her father was getting older. The Tribunal accepts it is the intention of the visa applicant to visit her father, her sisters and their children. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

24. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The sponsor gave evidence that she would stay for one month. She wanted her to be in Australia for the wedding of her daughter. She stated she wanted to spend time with her and for her children to spend time with her.

25. The sponsor gave evidence that the visa applicant wants to come to Australia for one month. The visa applicant told the Tribunal that she would stay for one month at the longest and more likely she would stay for two weeks. She said she does not like being away from her home for long. She also has responsibilities that she cannot leave for too long. She cares for her mother as she is the only daughter living in Lebanon. She said she also needed to be physically present for her son who was in his final year of study. He was planning to do tertiary studies and was thinking of studying in [another country]. Her brother and his family were also in Lebanon and were particularly reliant on her as they had a physical impairment that impacted on their ability to manage daily activities. At the hearing the visa applicant stated she intended to stay with her father but because of her obligations at home she would not be able to stay for a longer period.

26. The Tribunal asked the sponsor what incentives the visa applicant has to return to Lebanon at the end of her permitted stay in Australia.

27. The sponsor responded that her incentives to return are her family and her work. She has their mother and son in Lebanon, her brother and his family and a job she is passionate about. She has the sponsor, her father and another sister in Australia. When extended family such as her aunts, uncles and cousins are taken into account the balance of her family is in Lebanon. When asked what would happen if she comes here, changes her mind and does not want to return to Lebanon, she responded that she loves her son, her family and her job. She has built her life in Lebanon and that life includes frequent travel to Europe. She is very content with the life she has made.

28. The Tribunal asked the sponsor what impact the political, economic and security situation in Lebanon has had on the visa applicant.

29. She responded that where they are in Lebanon the situation is stable and that are in the fortunate position to not be as vulnerable as many other people in Lebanon.

30. The Tribunal asked the visa applicant what incentives she has to return to Lebanon at the end of her permitted stay in Australia. She responded that her biggest incentive to return is her family. When asked what would happen if she came here and then changed her mind and decided to stay here, she responded that she has not even thought about that. She stated that she has her family and life in Lebanon. She is a single parent and very conscious of that responsibility. She stated that she wants to visit her father and her sisters, she wants to see the life her sister has built here but she has no intention of living here.

31. The Tribunal asked the visa applicant what impact the political, economic and security situation in Lebanon has had on her and her family. She stated that the security, political and economic situation has had little impact on them in recent times. She has never involved herself in political activities.

32. The Tribunal has considered the evidence given by the sponsor. She has built her life in Australia but is constantly pulled back to Lebanon because of her sister and her mother. Her daughter is preparing for marriage and she wants her sister who is her closest friend to be here with her to share that occasion. The Tribunal accepts it is financially very difficult for her to constantly travel back to Lebanon to see her family. The sponsor stated that the visa applicant is law abiding and that all the members of her family are also law abiding.

33. At the time of hearing the sponsor and the visa applicant gave their evidence in a clear and consistent manner. The Tribunal found them both to be credible witnesses. The sponsor freely acknowledged her past immigration history was legitimately a matter of concern. The sponsor was very realistic in her assessment of the situation. She understood the reticence to grant her sister a visa, albeit a temporary visa was linked to her past immigration history. She said the reason she had been granted a Protection visa was because of circumstances specific to her husband, she received a Protection visa as his dependent. Those circumstances had not extended to any other member of her family including her sister but since that time her family members had been refused visas to visit her and her family. Prior to that they had been granted visas and had always complied with the conditions attached.

34. The Tribunal has considered other relevant matters. The sponsor stated that if the Department requires a security bond she was prepared to lodge a bond of up to $10,000. She stated that she is confident that her sister will return to Lebanon at the end of her visit.

    Findings

35. Having considered all the evidence, the Tribunal is of the view that the visa applicant and the sponsor are credible witnesses. The Tribunal accepts that the visa applicant has a deep commitment to her mother, her brother and her son and that this would provide a strong incentive for her to return to Lebanon. The Tribunal accepts that she has the financial resources to pay for her trip to Australia. The Tribunal accepts that she does not intend to work, study or undertake any training in Australia.

36. The Tribunal accepts that the father of the sponsor will provide the visa applicant with accommodation and the sponsor will meet her other needs. The Tribunal accepts that it is important to the sponsor that her sister is able to visit her in Australia and that she will ensure that the visa applicant complies with the conditions of her visa so as not to jeopardize other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of her visa.

37. The Tribunal accepts that the visa applicant's incentives to return to Lebanon outweigh her incentives to remain in Australia after the end of her permitted stay. The Tribunal accepts that she intends complying with the conditions of her visa.

38. For the above reasons the Tribunal is 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 met.

    DECISION

39. The Tribunal remits the applications for Visitor (Class FA) visa for [Ms A] 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.

    The Tribunal does not have jurisdiction in respect of the additional visa applicants.

    Moira Brophy
    Member