1815496 (Migration)

[2019] AATA 6286

1815496 (Migration) [2019] AATA 6286 (23 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815496

MEMBER:Ian Garnham

DATE:23 December 2019

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 23 December 2019 at 9:01am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family members – genuine temporary stay criterion – genuine intention to stay temporarily – strong incentives to depart Australia – family and work commitment in home country – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.612, 600.231

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 28 March 2018 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 13 March 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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 they were not satisfied that the visa applicant had; …provided evidence of sufficient personal, financial employment and cultural ties to Lebanon to demonstrate that she intends to stay temporarily in Australia…

5. The review applicant appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A] (the review applicant's spouse) and the visa applicant by conference telephone.   

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent.  The registered migration agent did not attend the hearing.  The migration agent provided a submission dated 29 July 2019[1] and documents before the hearing.  After the hearing the migration agent provided a further (2^nd) submission dated 16 August 2019[2] and documents addressing specific issues of concern.

   [1] At FF: 39&40 (AAT)

   [2] At F: 53 (AAT)

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the [visa] applicant intimated they sought the visa for the purposes of visiting the [review] applicant (who is her niece) and her family.  She also stated that she would like to spend time together with them for a short period because she had always regarded the review applicant as a daughter that she never had.

11. At the hearing the visa applicant said that she would like to support the review applicant who is undergoing [specified medical] treatment and that they are both Jehovah’s Witnesses and would like to attend a convention together.  In addition, she said that she would like to visit other relatives who are in Australia but that primarily she would visit and stay with the review applicant because she is especially close to her.  

12. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

    cl.600.211(a):

13. 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.

14. The visa applicant has not previously visited Australia.  At the hearing she advised that in 2017 she visited a niece in Africa and stayed for approximately 3 weeks before returning to Lebanon.  During the hearing the review applicant provided the tribunal with a copy of the visa applicant’s passport on their telephone which confirmed this travel.  Accordingly the tribunal finds that the visa applicant has made compliant international travel to Africa as stated.

15. The review applicant’s father came to Australia in 1998 and 2005 on Tourist visas and left before they ceased to have effect.  He then arrived in Australia on [date]/08/2006 on a Tourist visa that ceased to have effect on [date]/11/2006.  He remained in Australia and sought a protection visa that was granted on 16/04/2008. 

16. The review applicant and her mother then came to Australia on a partner visa [date]/09/2008.  The review applicant became an Australian citizen on 10/04/2018.  At the hearing the review applicant also said that another aunty, the visa applicant’s sister [Ms B] had come to Australia as a compliant visitor on 2 occasions, around 2014 and 2016.  The tribunal was only able to locate Movement Details for this person showing compliant travel to Australia in the period; [1996 – 1997].  However with the 2^nd submission the visa applicant provided copies of some pages of her passport which demonstrates an entrance to Australia on [date] August 2015[3].  This indicates to the tribunal that the applicant’s evidence was truthful and roughly correct and that more than one registered Movement Details may exist for this person.     

    [3] At F: 52 (AAT)

17. Because the delegate referred to …family member’s arrival and ongoing residence including the circumstances regarding his past immigration history.  The review applicant advised the tribunal that these comments could refer to either her father or another uncle, [Mr C], who came to Australia in 2008 and stayed seeking a protection visa.  In the 2^nd submission the applicants seek to distinguish the visa applicant’s circumstances from that of [Mr C].  It is intimated that the visa applicant is a devout Jehovah’s Witness and that she lives within a community where this and other religions are freely practiced and she is not exposed to any persecution in Lebanon.  Whereas [Mr C]’s protection claims were based on targeting by colleagues at his work.     

18. The tribunal acknowledges that all of this further information indicates further compliant travel to Australia by family members, as well as preconceived travel motivated to seek protection and permanent residence.

    cl.600.211(b):

19. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject. 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.

20. The visa applicant is [age] and has various real estate investments that have been planted with [specified crops][4] [5], vacant land[6], and a dwelling used by the visa applicant which also includes leased premises[7].  These financial interests and the age of the visa applicant do not suggest she is a person who would need to work or conduct long term study in Australia.  For these reasons I consider it unlikely that the visa applicant would breach the first two of these conditions.

    [4] At FF: 24&25 (AAT)

    [5] AT FF: 26&27 (AAT)

    [6] AT FF: 28&29 (AAT)

    [7] AT FF: 30&31 (AAT)

21. The applicants have addressed the likelihood of the visa applicant seeking a protection visa in Australia as has been discussed above and have confirmed that she cannot claim that she is subject to persecution.  The visa applicant is unmarried and has lived all of her life in her village in Lebanon.  Along with the visa applicant’s caring role of her sister, who is claimed to be suffering [an illness], the Mayor of the village states that the visa applicant is rich, acknowledging her comfortable lifestyle.[8]  These aspects of the visa applicant’s circumstances are indicative of someone who will return to their lifestyle rather than seek to remain in Australia. 

    cl.600.211(c):

    [8] AT FF: 33&34 (AAT)

22. The Tribunal has also considered all other relevant matters.

23. Firstly the tribunal has had regard to the replacement of the visa applicant from her caring role for her sister while she is in Australia.  The applicants stated, and as acknowledged by the Mayor, one of [Ms B]’s sons, [Mr D] will provide care for her while the visa applicant is absent.

24. The parties have provided consistent information that the visa applicant can only come to Australia for a maximum time of two months because of her carer role for [Ms B] and also due to her responsibilities with respect to her agricultural pursuits and land management.  The parties stated that in her absence [Mr D] will also undertake this role regarding land and crop management.  At the hearing the applicants said that the visa applicant was seeking to come to Australia for a Jehovah’s Witness convention in November, this event has now passed, but they stressed that the overarching aim was for the visa applicant to spend time with her niece in Australia. 

25. The review applicant has provided evidence that they have begun [specified medical] treatment[9] after marrying in April 2017 and becoming an Australian citizen in 2014.      

    [9] At F: 32 (AAT)

26. The applicants have advised that the visa applicant has been denied tourist visas on two previous occasions to attend nieces’ weddings in Australia.  They have presented a strong case supported by plausible independent documentation that the visa applicant has significant incentive to come to Australia on a temporary basis only.     

27. 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

28. 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.

    Ian Garnham
    Member