1823357 (Migration)

[2021] AATA 746

1823357 (Migration) [2021] AATA 746 (11 February 2021)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1823357

MEMBER:  Moira Brophy

DATE OF DECISION:  11 February 2021

DATE CORRIGENDUM

SIGNED:  29 March 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The reference to ‘Afghanistan’ at paragraph 26 of the Decision Record dated 11 February 2021 should be replaced with ‘Lebanon’ to correctly identify the visa applicant’s country of residence.

Moira Brophy Member

The Tribunal directs that information that would identify the applicant (including information

about family, friends or associates) not be published (under s.378 of the Migration Act 1958). This means that if this decision is published, names and other identifying material must be removed from or modified in the published version of the decision.

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1823357

MEMBER:  Moira Brophy

DATE:  11 February 2021

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 11 February 2021 at 8:27pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visiting new grandchildren – funding the proposed visit – balance of family in Lebanon – offer of a security bond – desire for further family visits – decision under review remitted       

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

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 Home Affairs on 2 August 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The visa applicant applied for the visa on 12 July 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.

1. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

1. The delegate refused to grant the visa, on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia.

1. The review applicant, [named] appeared before the Tribunal on 11 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant [named], who is the review applicant's mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

1. The review applicant was represented in relation to the review by his registered migration agent.

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

BACKGROUND

1. The visa applicant, [named] is [an age]-year-old national of Lebanon. She is married with [specified children and] grandchildren. One of her sons resides in Australia with his wife and [number] children. She has never been to Australia. In her application for a Tourist visa, she stated that he is not in paid employment. She wishes to travel to Australia for a period of up to three months.

1. The review applicant, [named], is the son of the visa applicant. He is an Australian permanent resident. He arrived in Australia [in] September 2009 on a Prospective marriage visa. The relationship did not progress to marriage. He subsequently applied for and was granted a Visitor visa in May 2010. He unsuccessfully applied for a Protection visa. On 5 May 2017 he was granted an 801 Partner visa on the grounds of his being in a genuine and continuing relationship with his now wife. He has [number] children.

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.

1. In the present case, the visa applicant seeks the visa for the purpose of visiting her son and his family. This is a purpose for which a visa in the Sponsored Family Stream may be granted.

1. 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)).

1. At the time of hearing the visa applicant told the Tribunal that she had not previously travelled to Australia. She travelled to [another country] with [number] of her siblings. She stayed for 10 days and had complied with her visa conditions. The only other member of her family to visit Australia was her brother.

1. 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.600.611[(2) OR (3) OR (4)]):

   ·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.

1. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit her family. The review applicant said he had not seen his mother for three years. She had not met her [youngest grandchildren]. His mother is not in paid employment. She owns investment property and she continues to derive an income from [apartments] she has rented out. In addition, her husband is in receipt of a pension from his previous [employment].   The review applicant considered it would be a good time for his mother to travel and spend time with their family in Australia. The review applicant is in full time employment as [an occupation 1]. He would be able to take some time off and show his mother around. As well as spending time with his family his mother has a [relative] in Australia who lives near the review applicant and he said she would be able to spend time with [that relative] and her family. The review applicant said his wife arranges the home and their [number] children aged under [specified age]. The Tribunal accepts it is the intention of the visa applicant to visit her son and his family. 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.

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

1. The concern for the Tribunal was, as it was for the delegate, whether there was a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. The

Tribunal especially considered the incentives for the applicant to return to Lebanon at the end of her visit.

1. The Tribunal considered the evidence of the visa applicant as to why she had applied for a visitor visa. She told the Tribunal that she wanted to spend time with her family. Given her son had been in Australia for 11 years and during that time he had married and had [number] children the Tribunal accepts that is a valid and understandable wish. Equally the Tribunal accepts the evidence of the review applicant that he wanted to be able to show his mother his new life and have her spend time with and get to know his wife and children. The review applicant stated it was difficult for him, financially and logistically to travel to Lebanon with [number] young children.

1. The Tribunal carefully considered the evidence of the review applicant as to how the proposed trip would be funded. The review applicant gave evidence he was in paid employment as [an occupation 1] earning$1200 per week. When asked as to whether his wife was in receipt of an income from Centrelink the review applicant was evasive and claimed he was not aware of what payment she was on or how much income she received. The Tribunal put to the review applicant that it might find his evidence as to their income and expenditure to be implausible and that in turn may lead the Tribunal to find he was not a credible witness but a witness who was prepared to tailor his evidence to obtain a migration outcome. The review applicant said he had accumulated savings of $15,000. The review applicant said the cost of the trip would not be an issue as he was prepared to pay from his savings and the visa applicant had the resources to meet her own costs. The evidence of the visa applicant as to what financial resources she had available to her was limited but she told the Tribunal she had income from her properties and she savings. She described herself as comfortable.

1. The review applicant 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.

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

1. The review applicant responded that her incentives to return are her family. She has her husband and [sons] living with her. Her only daughter is married and lives close by with her [children]. The visa applicant is very involved with their lives and assists her daughter with care of the children. She also has [specified siblings] living in Lebanon. She enjoys close contact with her siblings and sees them most days. There is only the review applicant, his wife and their [number] children in Australia. 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 family there and she has her home there. She said that would draw him back.

1. The tribunal discussed with the visa applicant the current instability in Lebanon and the effect on her and her family given they live in the north where there is more instability. The visa applicant said that while conditions were generally not good the effect on her and her family was minimised by the fact they had a stable income.

1. The Tribunal has considered the evidence given by the review applicant. He and his wife have [number] children. They are in a country without family support. The review applicant naturally wants his mother to get to know his family. The review applicant stated that the visa applicant is law abiding and that all the members of the review applicant's family are also law abiding. The review applicant said it was important his family members were able to come and visit him and he understood that could only happen if they complied with the conditions of any visa they were granted.

1. The Tribunal put to the review applicant that in light of his immigration history there may be legitimate concerns that this was not a person who intended a genuine short stay. The Tribunal discussed with the review applicant the concerns of the Tribunal that this was really an application to obtain a migration outcome that allowed another of his family members to be together with him in Australia. The review applicant stated the visa applicant would return home because of her family and her home.

1. The Tribunal has considered other relevant matters. The review applicant stated that if the Department requires a security bond, he was prepared to lodge a bond of $15,000. He stated that he is confident that his mother will return to Afghanistan at the end of his visit.

Findings

1. Having considered all the evidence, the Tribunal is of the view that the visa applicant is a credible witness. The Tribunal had some concerns as to the credibility of the review applicant especially in light of his reluctance to give credible evidence as to his visa history and his reluctance to answer questions as to the financial assistance received by his family. Because of these concerns the Tribunal has very carefully considered the application and applied to it a greater level of scrutiny. The Tribunal has carefully considered and weighed up whether concerns as to the credibility of the review applicant should be the primary consideration in an application to allow a grandmother to visit her grandchildren. In this application the Tribunal has been persuaded by the facts that were not infected by the review applicant’s credibility. There was no dispute the review applicant and his wife had [number] children under [specified age]. His mother had not met [number] of those children. The balance of his mother’s family, being her husband, [sons], one daughter, [grandchildren] and her [number] siblings are in Lebanon. The Tribunal is satisfied the balance of her family is in Lebanon. The Tribunal accepts that the visa applicant has a strong commitment to her family and her home in Lebanon 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. The Tribunal places considerable weight on the fact that she has only applied to visit in the context of her not having seen her son for three years and missing her grandchildren.

1. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that his family members are able to visit him in Australia and that his children have the opportunity to spend time with their grandmother. The review applicant will ensure that the visa applicant complies with the conditions of his 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.

1. 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 his visa.

1. 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

1. 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.

Moira Brophy Member