Alshareefi (Migration)

[2023] AATA 3125

Alshareefi (Migration) [2023] AATA 3125 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hanaa Mozan Jaber Alshareefi

VISA APPLICANT:  Mr Khalid Ali Jubaih

REPRESENTATIVE:  Ms Abby Hamdan

CASE NUMBER:  2215434

HOME AFFAIRS REFERENCE(S):          BCC2022/575991

MEMBER:Stephen Conwell

DATE:15 September 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 15 September 2023 at 3:19pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – visiting sister and mother – other family members, fiancée and full-time work in home country – sister’s sponsorship of mother and mother’s compliance – effect of non-compliance on family members’ future applications and visits – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 20 September 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 March 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 (the applicant) did not meet cl.600.211 because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia. 

5. The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

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 applicant seeks the visa for the purposes of visiting his sister, an Australian citizen) and his mother, an Australian permanent resident. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

   Cl.600.211(a)

10. In considering whether an 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)), however because the applicant has not previously travelled to Australia, this is not relevant.

11. The Tribunal must also consider whether the 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.

12. The evidence provided to the Tribunal, including the decision record and the visa application form,  the applicant’s undated written statement and written submission of the representative, establishes in summary, the following facts:

    ·   the applicant who was born in 2000 and is currently 29 years of age. He is a full- time employee of a Transport and Shipping company where he has worked since 2015. His payslips, current bank statement and work reference letter are submitted as evidence of his current financial circumstances;

    ·   the applicant has sought to travel to Australia for up to three months to visit and spend time with his sister and her family as well as with his mother who is in Australia to support  his sister in her care of her children who have special needs. His mother is now undergoing medical treatment. The applicant seeks to support and care for his mother as well as support his sister in providing care to her children;

    ·   the applicant has not travelled outside of Iraq;

    ·   the applicant claims that he became engaged to a fellow Iraqi citizen on 15 April 2023, and they are planning to get married sometime in August 2024;

    ·   the applicant’s father and three other brothers live in Iraq. He lives with one of his brothers as the other two are married with their own families;

    ·   the applicant claims he has the finances to meet his expenses during the proposed visit. The sponsor has agreed to provide all material support, including accommodation to the applicant, should the visa be granted.

13. The Tribunal accepts the evidence regarding the applicant’s personal circumstances. Based on the applicant’s statements and photographic evidence it accepts that he is engaged to be married in Iraq. It accepts that he is committed to his employment in Iraq.

14. Although the applicant has not previously to travelled to Australia, the Tribunal gives positive weight to the sponsor having successfully sponsored her mother to travel to Australia to help care for her children who have special needs. There is no evidence of their mother breaching her visa conditions during her stay. The applicant and sponsor are aware that a breach of any visa condition by the former (should a visa be granted to him) would jeopardise any future visits of family members.

15. The Tribunal gives positive weight to the fact that the parties’ mother appears to have substantially complied with her visa conditions during her stay in Australia and that she is now a permanent resident.

    Cl.600.211(b)

16. The parties come from a large and close-knit family. The sponsor and his mother live in Australia; the applicant’s father and three other brothers all live in Iraq. He lives with one of his brothers.

17. Based on the evidence, the Tribunal is satisfied that the applicant is financially secure and is prepared to self-fund his needs during his proposed visit. The  Tribunal is satisfied that the applicant does not intend to work, study or train while in Australia.

18. The Tribunal is satisfied the applicant has family ties in Iraq (being his father and three other  siblings). Most importantly he has his fiancé whom he proposes to marry in August next year. The Tribunal finds these factors act as incentives for him to return before the expiration of his visa, should it be granted.

19. The Tribunal accepts that the applicant genuinely intends to comply with the terms of the visa and to depart Australia before the visa expires.

    Cl.600.211(c)

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

21. The Tribunal is mindful that the sponsor understands that non-compliance by the applicant of any visa conditions would potentially jeopardise any future visits by the sponsor’s family.

22. The Tribunal has also considered Iraq’s economic and political conditions and to the extent that these factors may discourage the applicant from returning home. Having considered these factors carefully, the Tribunal gives greater weight to the applicant’s ongoing employment and his proposed engagement to find in favour of this current application.

23. The Tribunal is satisfied that the applicant’s personal circumstances provide a greater incentive for him to return to Iraq in spite of the economic and political crises which beset the country.

24. Taking all these matters into account cumulatively, the Tribunal is satisfied that the applicant intends to comply with all visa conditions which would accompany the visa. The Tribunal is also satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

25. For the above reasons the Tribunal is satisfied that the 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.

    Stephen Conwell
    Member