2210266 (Migration)

[2022] AATA 4380

2210266 (Migration) [2022] AATA 4380 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2210266

MEMBER:Margie Bourke

DATE:8 September 2022

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 08 September 2022 at 1:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – intention to comply with visa conditions – religiously married in Lebanon – not formally registered their marriage – undecided whether they will reside together in Australia or another country – work commitment in the UAE – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 13 July 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 1 June 2022. 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 Tourist stream.

3. 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.

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 not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the circumstances of the visa applicant and the nature of the review. The Tribunal had regard to the fact the visa applicant would be giving evidence from overseas, either by video or telephone. The Tribunal considered that the hearing did not involve a large amount of documents to be put to the review applicant during the course of the hearing. The Tribunal was of the view that the conduct of the hearing by video would allow the review applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and enable the Tribunal to properly assess the evidence before it. The review had been assessed as priority, and the Tribunal decided that any unnecessary delay should be avoided in scheduling the hearing. The hearing was conducted at a time when the availability of in-person hearings were restricted due to the ongoing pandemic. For all these reasons the Tribunal decided this was an appropriate matter for the hearing to be conducted by way of video

6. The review applicant appeared before the Tribunal by video on 8 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who appeared before the Tribunal by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The interpreter attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

10. Compliance with previous visas: – 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)).

11. Based on the evidence before it the Tribunal is satisfied that the visa applicant has not previously travelled to Australia, and has not previously been the holder of a substantive or bridging visa in Australia. The Tribunal is satisfied that the visa applicant is currently the holder of a residency visa in the UAE, and has held visas to travel to Lebanon, Indonesia Saudi Arabia and Bahrain. There is no evidence before the Tribunal that the visa applicant has not substantially complied with visas he holds or has held in other countries.

12. Intention to comply with the condition to which the visa would be subject: – 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)):

    ·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.

13. The Tribunal is satisfied based on the evidence before it that the visa applicant does not intend to work, or engage in study or training in Australia whilst at the holder of the visitor visa.

14. The Tribunal is satisfied that the visa applicant and the review applicant were religiously married in Lebanon in December 2020 pursuant to their Islamic beliefs, but have not formally registered their marriage. The Tribunal is satisfied that the visa applicant and review applicant intend to have a formal wedding in the future. The Tribunal is satisfied that the visa applicant and review applicant are undecided as to whether they will reside together as a married couple in Australia or another country. The Tribunal accepts that the visa applicant and review applicant will consider during the visa applicant stay in Australia, whether they wish to reside together in Australia, and if they so decide, the visa applicant will make an application for a partner visa sponsored by the review applicant. The Tribunal accepts the evidence of the visa applicant and the review applicant that the decision as to whether they will make an application for an Australian partner visa in the future depends on [specified consideration], and whether the visa applicant and review applicant decide that Australia is the best place for them to live as a married couple considering employment prospects and family interests and whether they both wish to live in the westernised culture in Australia. The Tribunal accepts the evidence of the visa applicant and the review applicant that they do not intend to make an application for a partner visa during the period of the visitor visa which is the subject of this review.

15. The Tribunal is satisfied that the visa applicant’s immediate family, his parents and his married sister and her family reside in Egypt, which is the visa applicant’s country of citizenship. The Tribunal accepts that the visa applicant returns regularly to Egypt to visit his family members from his current place of residence in the UAE.

16. The Tribunal is satisfied that the review applicant’s parents and her [number] married sisters reside in Lebanon, and she has [number] brothers and other relatives who reside in Australia. The Tribunal is satisfied that the review applicant and visa applicant were married in Lebanon in the presence of the review applicant’s family.

17. The Tribunal accepts the evidence of the review applicant and the visa applicant that it is possible that they may decide to reside in the UAE is a married couple rather than Australia. The Tribunal accepts that if the review applicant and visa applicant reside in the UAE, they would be closer to the parents and married sisters of both parties.

18. The Tribunal is satisfied that the visa applicant is working in the UAE, and has been granted leave for a period of one month for his trip to Australia. The Tribunal accepts the evidence of the visa applicant that he does not intend to stay in Australia as the holder of the visitor visa for more than one month, because of his commitment to return to his place of employment in the UAE.

19. Both the review applicant and the visa applicant stated to the Tribunal that the visa applicant would depart Australia before the expiration of the visitor visa, and that they would be prepared to provide security if that was required to guarantee the visa applicant would depart Australia before the expiration of the visa.

20. The Tribunal is satisfied based on the evidence before it that the visa applicant intends to comply with the conditions to which the visitor visa would be subject.

21. Other relevant matters: – The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal is satisfied that the review applicant is divorced, and has [number children] from her previous marriage. The Tribunal is satisfied that her [number] older [children] are adults, and reside with their father. [Details redacted]. The Tribunal is satisfied based on a copy and translation of the marriage certificate that the review applicant and visa applicant participated in a religious marriage in Lebanon in December 2020. The Tribunal is satisfied that the review applicant travelled to Dubai in April 2021 and stayed with the visa applicant for over eight months, [details redacted]. The Tribunal is satisfied that the review applicant returned to Australia in January 2022 because [of specified reason]. [Details redacted].

22. The Tribunal accepts that the review applicant and visa applicant are religiously married, and have resided together as a couple for a significant period of time at the visa applicant’s country of work, with a long-term plan to reside together in the UAE. The Tribunal accepts that the review applicant returned to Australia because of [specified reason], and her future plans revolve around [specified consideration], as well is her relationship with the visa applicant. The Tribunal accepts that the review applicant and visa applicant are considering their options in relation to where they may live in the future, which includes Australia and overseas countries as possibilities. [Details redacted]. The Tribunal accepts that the visa applicant genuinely intends to visit Australia temporarily, for the purposes of providing support to the review applicant, [and] spending some time making decisions about their future. The Tribunal accepts that the evidence before it indicates that the visa applicant genuinely intends to visit Australia to spend time with his wife, and to work out [specified details]. The Tribunal accepts that the intention of the visa applicant is to stay temporarily in Australia for the purpose for which the visa is granted.

23. 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

24. 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.

    Margie Bourke
    Member