2402261 (Migration)

[2024] AATA 2115

2402261 (Migration) [2024] AATA 2115 (5 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Olia Kamereddine (MARN: 1574752)

CASE NUMBER:  2402261

MEMBER:Margie Bourke

DATE:5 March 2024

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 05 March 2024 at 4:23pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family – strong family and personal ties in Lebanon – employment and business and financial ties in Lebanon – review applicant’s wife’s health conditions – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – 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 12 December 2023 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 22 November 2023. 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 the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant had initially applied for the visa applicant to be included in a combined review application with a review application relating to her husband and child. The Tribunal advised that the application for review was unable to be combined because it did not meet the requirements of reg 4.12(4). The Tribunal subsequently received a separate application for review in relation to this visa applicant.

6. The review was listed with the consent of the review applicant as a combined hearing, in relation to a review where the other visa applicants were this visa applicant’s husband and young child. The matter was listed for a combined hearing because the review applicant was the same, the representative was the same, the visa subclass was the same, the visa applicants were from the same family and the issues in the Departments decision record was similar.

7. The review applicant appeared before the Tribunal on 5 March 2024 by video to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, who attended by video with her husband. The Tribunal also received oral evidence from the visa applicant, who attended by video with the first named visa applicant (her husband) in the combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The interpreter attended the hearing by video.

8. The review applicant was represented in relation to the review. The representative attended the hearing by video.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal made a similar decision to remit the application for review in relation to the two other visa applicants in the combined hearing. It may be appropriate that the two decision records be read together.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

11. 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.

12. The second main visa applicant in the other review which was part of the combined hearing, is a child under 12 months of age, and is the son of the first named visa applicant in the other review, and the son of the visa applicant in this review. I am satisfied that any intention of the child for the purpose of meeting the requirements of cl.600.211, will be based on the assessment of the intention of the child’s parents. There is no evidence that the circumstances of the child differ from the circumstances of his parents. The appropriate finding in relation to whether the second named visa applicant meets the requirements of cl.600.211, is based on an assessment of whether the child’s parents meet these requirements. It is for this reason that the two decision records should appropriately be considered together.

13. Cl.600.211(a): – 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. I am satisfied that the visa applicant has not previously travelled to Australia, and has not previously been the holder of a substantive visa or a bridging visa in Australia. I accept the visa applicant has previously travelled out of Lebanon. I am therefore satisfied that there is no evidence of compliance or non-compliance by the visa applicant with a previous substantive visa or bridging visa held in Australia.

14. I give this consideration neutral weight in my assessment of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted

15. Cl.600.211(b): – 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.600.611(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.

16. I am satisfied that the visa applicant’s parents and three siblings reside in Lebanon. I am satisfied that the visa applicant’s parents are divorced, and her mother has experienced health difficulties since 2016, and her health has deteriorated since the divorce in 2023. I accept the visa applicant’s mother resides with one of her siblings, and the visa applicant provides ongoing care and support to her mother. I am satisfied that the visa applicant has strong family and personal ties in Lebanon.

17. I am satisfied that the visa applicant resides with her husband, child and parents-in-law in Lebanon. I am satisfied that the visa applicant’s husband has employment, business responsibilities connected to his family and property ownership in Lebanon. I am satisfied that the visa applicant and her husband have financial security, and that they have employment and business and financial ties in Lebanon.

18. I am satisfied that the visa applicant has completed tertiary education, and is currently not working as she is caring for her child who is aged under 12 months.

19. I have considered the written and oral evidence provided to the Tribunal and I am satisfied that the visa applicant does not intend to work, study or train whilst the holder of a visitor visa in Australia. I am also satisfied that the visa applicant does not intend to apply for a further visa whilst in Australia as the holder of a visitor visa.

20. I have considered the evidence of the visa applicant and the other participants at the hearing. I am satisfied that the visa applicant intends to depart Australia before the expiration of the visa. I am satisfied that the visa applicant intends to return to Lebanon where she has commitments to family members, and has a sense of community, and where she has family, personal, employment, business and financial ties.

21. I have considered the evidence of the visa applicant, and the evidence before the Tribunal as a whole, including the submissions provided by her representative. I am satisfied that the visa applicant intends to comply with the conditions to which the visa would be subject. I give this consideration positive weight in my assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose which the visa is granted.

22. Cl.600.211(c): – The Tribunal has also considered all other relevant matters. I am satisfied based on the written and oral evidence in the hearing, including medical reports and screenshots of hospital appointments relating to the review applicant’s wife, that the visa applicant and her husband are motivated to travel to Australia to spend time with the visa applicant’s brother-in-law and his wife, and to support them while they face some significant health difficulties. I am satisfied that the review applicant’s wife has some chronic and acute health problems, both physical and psychological, and that that she is under ongoing medical treatment including trial medication administered at hospital. I am satisfied that the review applicant and his wife have a young child who also has health conditions including low immune resistance and vulnerability to choking. I am satisfied based on the oral evidence before me, and the medical reports, that the review applicant’s wife would benefit from the support of the visa applicant and her husband. I am satisfied that a visit from the visa applicant and her husband and child, even for a short period of time, will help alleviate the pressures from the review applicant and his wife, and provide much-needed support.

23. I am satisfied that the review applicant cannot provide this support on a continual basis, as he needs to work to provide for the family. I am satisfied that the review applicant’s wife’s family are unable to provide this support due to their own health issues or commitments. I am satisfied that the visa applicant’s husband’s and review applicant’s mother is currently visiting and staying with their sister who is pregnant, but has provided some support to the review applicant’s wife. I accept that she is shortly to return to Lebanon.

24. I am satisfied that the review applicant and all members of his family, including the visa applicant recognise that if the visa applicant does not comply with the conditions to which the visitor visa would be subject, that this would impact the ability of other family members to successfully apply for visitor visas to come and visit and provide support to the review applicant and his family in the future.

25. I give the consideration of other relevant matters positive weight in my assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

26. Conclusion: – 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

27. 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