Abbas (Migration)

[2020] AATA 1630

Abbas (Migration) [2020] AATA 1630 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Khadijah Abbas

VISA APPLICANT:  Mr Shouayb Abbas

CASE NUMBER:  1832823

HOME AFFAIRS REFERENCE(S):          BCC2018/4335840

MEMBER:Margie Bourke

DATE:24 February 2020

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 24 February 2020 at 3:28pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – employment opportunities in the applicant’s province – sectarian strife and instability in Lebanon – previous compliant family visits to Australia – review applicant wishes to sponsor other family members later – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211

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 12 October 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 5 October 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 Tourist 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 the delegate was not satisfied that the visa applicant intended a genuine visit to Australia.

5. The review applicant appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone from overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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 visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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. There is no evidence before the tribunal that the visa applicant has travelled to Australia, or been the holder of a substantive visa or bridging visa in Australia. The visa applicant stated he had never travelled to Australia, or travelled out of Lebanon. There is therefore no evidence that the visa applicant has complied substantially or not complied substantially with the conditions of a previous visa.

12. 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. I accept the visa applicant is one of nine children and resides in the province of Akkar in Lebanon. I accept the visa applicant has his own house, but as he is not married he resides with his parents and not in his own house. I accept the visa applicant is the youngest of the four brothers, and two of his older brothers are married.

14. The evidence before the tribunal is that the visa applicant is employed as a blacksmith, and has had this employment since 2015. The consistent evidence of the review applicant and the visa applicant is that the visa applicant’s employment involves making doors and windows, and he is entitled to one month holiday each year. The evidence of the review applicant and visa applicant is that all the brothers are employed.

15. The visa applicant stated that he did not intend to work, study or train in Australia as he wished to come to Australia to have a holiday. The visa applicant stated he intended to return to Lebanon to his own country, his family and relatives and his employment. The visa applicant stated he intended to return to his employment before the end of his one month’s leave.

16. I am satisfied that the visa applicant wishes to visit his sister, the review applicant who is married, has lived in Australia for many years, and has four children.

17. I have considered that the delegate recorded that the prevailing political, security and economic conditions in Lebanon on constitute very strong disincentives for the visa applicant to return.

18. The visa applicant and the review applicant stated there were no issues in relation to unemployment in the villages in the province of Akkar. The representative submitted that in villages in the Akkar province, many people were farmers or employed by the Lebanese army, and employment was not a significant issue.

19. The visa applicant and the review applicant submitted that they had no security or safety concerns for the family members who lived in Akkar province. Both the visa applicant and the review applicant told the tribunal that there were no security or safety issues on the Lebanese Syrian border, and the trouble occurred in the big cities. The representative submitted that Lebanon had not been a stable political environment for some years, and people became accustomed to that environment. I have considered the evidence that the visa applicant and review applicant do not have security concerns about the Akkar province, and the visa applicant does not have a fear of returning to Lebanon. I do not accept that there are no security issues in the province of Akkar, but I accept that people can become desensitised to ongoing civil and political unrest in the nation. I am satisfied that the visa applicant genuinely intends to return to Lebanon on despite any ongoing troubles in Lebanon.

20. I am satisfied that the visa applicant has family, community, property and employment ties in Lebanon, and he genuinely intends to return to his own country before the expiration of the visa. I have considered the evidence before me and I accept the visa applicant intends to comply with the conditions to which the visitor visa would be subject.

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)). I have considered that the review applicant provided a statutory declaration in almost similar wording to a statutory declaration provided to the Tribunal on another unrelated review file. The review applicant stated that the statutory declaration was in her own words. The review applicant also stated that the other similarly worded declaration was that of her husband’s sister-in-law. I accept that the wording of the two statutory declarations was made with the assistance of the review applicant’s husband. I accept that the intention of the statutory declaration of the review applicant is genuine and credible.

22. I have considered that the review applicant has sponsored her sister Rima on visitor visas in 2016 and 2019. I accept the visa applicant sister travel to Australia, and substantially complied with the terms of the visitor visa on both occasions. I accept that when the visa applicant sister visited the review applicant, she was single, although she is now engaged in Lebanon. I am also satisfied that both the review applicant and the visa applicant understand that if the visa applicant does not comply with the conditions of the visa, this will affect the ability of the review applicant to sponsor other members of her family to visit her in the future.  The migration history of relatives, and the sponsorship history of the review applicant is relevant to the assessment of whether the visa applicant meets the requirements of cl.600.211. I accept the review applicant wishes to sponsor other family members, including her mother, in the future. I have considered and given weight to the evidence that the review applicant has previously sponsored other members of her family, and the fact that other members of the visa applicant’s family have travelled to Australia and substantially complied with the conditions of their visitor visas.

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