2423313 (Migration)

[2024] AATA 3826

2423313 (Migration) [2024] AATA 3826 (21 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2423313

MEMBER:Margie Bourke

DATE:21 August 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 21 August 2024 at 2:36pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Visitor (Sponsored Family) (subclass 600) visa – visit Australian family member – applicant has family and employment commitments and ties in Lebanon – current difficult family situation – 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 8 July 2024 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 27 June 2024. 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 (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 would be granted.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The Tribunal had regard to the circumstances of the review applicant and the nature of the review. The Tribunal had regard to the fact that the review had been assessed to be conducted with priority. The Tribunal had regard to the fact the visa applicant would be giving evidence remotely from overseas. The Tribunal is of the view that the conduct of the hearing by video would allow the review applicant to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The review did not involve an extensive amount of documents to be put to the review applicant during the course of the hearing. For all the above reasons, the Tribunal decided it was appropriate to conduct the hearing by way of video connection, and invited the review applicant to attend the hearing by video.

6. The review applicant consented to a shortened notification of the hearing.

7. The review applicant appeared before the Tribunal on 21 August 2024 by video to give evidence and present arguments. The Tribunal received oral evidence from the review applicant’s wife who appeared before the Tribunal with the review applicant. The Tribunal also received evidence from the visa applicant who attended the hearing by video from overseas. 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. During the hearing the review applicant lost connection, but rejoined the hearing via another device.

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

   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 Sponsored Family stream may be granted: cl.600.231.

12. 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.

13. I am satisfied based on the evidence of the visa applicant, which is consistent with Department movement records, that the visa applicant travelled to Australia in February 2013 as the holder of a visitor visa, and departed Australia in April 2013. There is no evidence that the visa applicant did not comply substantially with their substantive visa. I am satisfied that the visa applicant complied substantially with the conditions of the last substantive visa held by the visa applicant. I give the consideration of the visa applicant’s substantial compliance with the last substantive visa held, positive weight in my assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted, namely a family visit.

14. 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.600.612):

    ·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.

15. I am satisfied based on the translated family register that the visa applicant is the sister of the review applicant, and the oldest sibling in the family. I am satisfied based on the evidence that the visa applicant resides with her parents and has a sense of responsibility as the oldest child in the family in caring for her parents. I accept the parents of the visa applicant and the review applicant are aged approximately [age] and [age] years, are in reasonably good health, although the father has been diagnosed with [a medical condition]. I am satisfied the visa applicant’s married siblings can provide support to the parents for a limited period of time while the visa applicant is in Australia.

16. I am satisfied the visa applicant is employed in Lebanon by [a company], and based on the letter provided by her employer I am satisfied her employer has approved indefinite leave for the visa applicant to come to Australia to provide support for her brother and sister-in-law, and that her employment will be available when she returns to Lebanon.

17. I accept there are current economic and security issues in Lebanon, but I am satisfied the visa applicant has ongoing employment. Further, I am satisfied the visa applicant genuinely intends to return to Lebanon because of her commitment to her parents. I am satisfied that the visa applicant has family and employment commitments and ties in Lebanon, and that she intends to return to Lebanon because of her family responsibilities and her ongoing employment.

18. I accept the evidence of the applicant that she does not intend to work or study or train whilst in Australia, and the purpose of her visit is to provide support to her sister-in-law. I accept the evidence of the visa applicant that she does not intend to apply for a further visa whilst in Australia as the holder of a visitor visa. I accept the evidence of the visa applicant that she intends to comply with the conditions to which the visitor visa would be subject. I accept the evidence of the applicant that she does not intend to remain in Australia after the expiration of the visitor visa. I give the consideration of the visa applicant’s intention to comply with the conditions to which the visa would be subject, positive weight in my assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted, namely a family visit.

19. Cl.600.211(c):- The Tribunal has also considered all other relevant matters. I am satisfied based on the medical reports and statements provided that the review applicant and his wife have a baby who was born extremely prematurely, and has been in neonatal intensive care at [a] Hospital since her birth approximately 14 weeks ago, and will possibly remain in neonatal intensive care for a further 4 to 8 weeks. I am satisfied that the review applicant’s wife is travelling daily into the hospital to be with her baby. I am satisfied that the review applicant has had to return to work in order to pay the bills including the mortgage. I am satisfied that the review applicant and his wife also have a [toddler] and it is extremely difficult to care for the toddler in the hospital and the toddler is not coping with being left behind. I am satisfied that the review applicant and his wife are currently exhausted by the situation and have limited family supports in Australia. I am satisfied that the request for family support for the family is endorsed by the paediatrician at the [Hospital] based on the detailed medical reports provided dated 12 July 2024 and 12 August 2024. I am satisfied that the review applicant and his wife will require ongoing support in caring for the premature newborn and the toddler for up to one year after the baby is discharged from hospital.

20. I am satisfied that the visa applicant is motivated to travel to Australia and leave her parents and her employment, in order to provide support for her sister-in-law, and her brother in their current difficult family situation. I accept that Lebanon is currently experiencing insecurity and volatility, but I am satisfied the visa applicant is motivated by her commitment to family.

21. I give consideration of all other relevant matters positive weight in my assessment that the visa applicant genuinely intends to stay temporarily in Australia the purpose for which the visa would be granted, namely a family visit.

22. 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

23. 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
    Senior Member