Al Haj (Migration)

[2023] AATA 4337

Al Haj (Migration) [2023] AATA 4337 (14 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jawaher Al Haj

VISA APPLICANT:  Mr Mohamad Al Haj

REPRESENTATIVE:  Ms Fatoum Souki (MARN: 1387022)

CASE NUMBER:  2215644

HOME AFFAIRS REFERENCE(S):          BCC2022/3683300

MEMBER:Scott Clarey

DATE:14 December 2023

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 14 December 2023 at 3:52pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant family visits – offer of a security bond – balance of family in Lebanon – business and property ties to home country – security situation in Lebanon – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 10 October 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 8 September 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 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 they were not satisfied the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

   Letter sent to the applicant pursuant to s.359(2) of the Act

5. On 21 August 2023, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act. The Tribunal explained that it was considering whether the visa applicant met cl.600.211 of the Regulations which requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In the letter, the Tribunal invited the review applicant to provide various information to support the visa applicant’s claims that he genuinely intends to stay temporarily in Australia. The review applicant responded to the Tribunal’s request and provided the Tribunal with significant additional information in support of the visa applicant’s claims. The Tribunal has had regard to this additional information.

6. The review applicant and the visa applicant appeared before the Tribunal on 6 December 2022 via teleconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review.

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa 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 the review applicant (his older sister) and her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. In assessing the issues, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file as well as the oral evidence given at the hearing.

11. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

12. The review applicant gave oral evidence that the visa applicant has not travelled to Australia before. In the circumstances, the Tribunal makes no findings with respect to the visa applicant’s previous compliance with Australian immigration conditions.

13. The review applicant gave oral evidence that her parents had previously visited Australia in 2017.  The Tribunal notes that the delegate’s decision record does not raise any issues relating to previous visa non-compliance by her parents. The evidence before the Tribunal is that her parents did comply with the conditions attached to their visas, including departing Australia before the visas ceased. The Tribunal accepts this and gives positive weight to the review and visa applicant’s parents’ previous travel history to Australia and their compliance with relevant immigration conditions.

14. 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.600.612):

    ·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. The Tribunal discussed each of these conditions with the review applicant. The review applicant told the Tribunal that the visa applicant would comply with all conditions. She told the Tribunal that the visa applicant had no intention of remaining in Australia or working or studying here during the period of the permitted stay. The review applicant told the Tribunal that her brother would comply with all conditions imposed on the visa if it were to be granted. The review applicant also said she was willing to post a security bond to the Department if it were required.

16. The review applicant said that both she and the visa applicant knew that any non-compliance from the visa applicant would all but guarantee any future planned travel from other family members to Australia, which she stressed was a situation she was very keen to avoid. The Tribunal found the review applicant to be candid and credible and therefore accepts her oral evidence. I note also that the review applicant submitted various documents to the Tribunal in advance of the hearing, including in relation to the visa applicant’s assets and employment in Lebanon, his family composition, and financial records.

17. I also discussed these issues with the visa applicant at the hearing. The visa applicant assured the Tribunal that he would comply with any conditions attached to the visa if it were granted. He said he had every intention of returning to Lebanon at the end of his stay in Australia.

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

19. At the hearing, the Tribunal asked the review applicant questions relating to various factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to Lebanon.

20. At the hearing, I asked the review applicant and the visa applicant questions relating to various factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to Lebanon. When asked about the visa applicant’s life in Lebanon, the review stated words to the effect that her brother was not married, but had a girlfriend and friends in Lebanon. She said that her brother had a job as a ‘decoration engineer’ that involved painting houses and designing roofs. She said the visa applicant had most of his family in Lebanon, including his mother and father, a brother and several aunties and uncles. The visa applicant is not married and lives with his parents. When the visa applicant was asked about his situation in Lebanon, he confirmed that he was a decoration engineer, and his work involved designing roofs and painting in a particular material. He said that he had an above average income in Lebanon and also owned property there, including the house he lived in and some land. The visa applicant said he had extensive ties to the community in Lebanon, including a large social network there.

21. When asked about her broader family, the review applicant stated that she and another sister live in Australia. The rest of their family, including their mum, dad and nine other siblings, all live in Lebanon. The Tribunal accepts this. According to departmental records and the oral evidence of the review applicant at the hearing, the review applicant has previously sponsored both of her parents to visit Australia (in 2017) on visitor visas, both of whom appear to have complied with the conditions attached to their visas, including by departing Australia before the visa period ceased.

22. The Tribunal raised with the review applicant concerns relating to country information, including information contained in the Department of Foreign Affairs and Trade country information report on Lebanon. The Tribunal asked the review applicant if the significant financial, political and security instability within Lebanon could be a reason for the visa applicant not to comply with the conditions of his visa if it were granted. The review applicant acknowledged these issues but said that their family had not been directly and/or significantly impacted by this situation. The review applicant said that her brother was well established in Lebanon, that he did not fear harm or persecution of any kind and lived a normal, stable life there. I raised these issues with the visa applicant at the hearing. The visa applicant reiterated these factors and told the Tribunal words to the effect that he had stable employment in Lebanon, that his family was not affected by these issues as they lived in the north of the country.

    Findings

23. After considering all the evidence before it, on balance the Tribunal considers that factors such as the presence of the visa applicant’s parents, siblings, friends and extended family in Lebanon, his well-established life there, his ongoing work employment ties there and his better than average economic status form stronger incentives for him to return to Lebanon than the incentive for him to remain in Australia. The Tribunal also gives weight to the past compliance of their parents (that the review applicant has previously sponsored to visit Australia in 2017), and the incentive for compliance that the review applicant discussed at the hearing, given her intention to sponsor other family members to visit her in Australia in the future.

24. The Tribunal accepts that the visa applicant has a genuine intent to stay temporarily in Australia to visit his sister and other family members in Melbourne. The Tribunal accepts that the visa applicant intends to return to Lebanon within the specified timeframe.

25. 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

26. 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.

    Scott Clarey
    Member