Altahan (Migration)

[2019] AATA 1830

Altahan (Migration) [2019] AATA 1830 (30 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Samir Altahan

VISA APPLICANT:  Mr Hamad Chendeb

CASE NUMBER:  1809269

HOME AFFAIRS REFERENCE(S):           BCC2018/776799

MEMBER:Brendan Darcy

DATE:30 May 2019

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 30 May 2019 at 2:31pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting family – visit fiancée – pending offshore prospective marriage visa application – economic and security situation in northern Lebanon – past history of compliance – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 15 March 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 14 February 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 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 (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.

5. The review applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant via a teleconference facility. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   Background

7. The review applicant claimed to be born in Lebanon in January 1970. He first arrived in Australia in 1996 while holding a partner visa. He acquired Australian citizenship in 2003. The visa applicant is a citizen of Lebanon and was born in that country in January 1992.

8. The review applicant claimed to be the paternal uncle of the visa applicant for the purposes of his sponsorship under cl.600.232.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting the sponsor (his uncle) and other members of his extended family at the time of application. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)).

12. As discussed in the hearing, the visa applicant previously travelled Australia while holding a visitor visa in 2012. The movement record indicates that that the applicant orderly departed Australia by the date of the visa’s expiry. There is no evidence before the Tribunal that he had otherwise been non-compliant with Australia’s visa condition then imposed on him. Accordingly the Tribunal place considerable weight on the visa applicant’s history of compliance in favour of finding the applicant genuinely intends to stay temporarily in Australia, if this visa were to be granted.

13. 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.

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

15. The visa applicant does not have any immediate dependants and is not married. He works in a family business with his father and in a restaurant as a cook or chef and he does not claim to own any assets of his own. However, he does claim to belong to a large and supportive family and it is accepted that he resides and works in a manner in which he is relatively buffered from the risks of poverty due to his father’s entrepreneurial endeavours.   

16. With regard to the review applicant’s own visa history, there is no evidence before the Tribunal that he has not been non-compliant with Australia’s migration laws and regulations in the past.

17. Subsequently to applying for his visitor visa in early 2018, the applicants have informed the Tribunal that the visa applicant, as of October 2018, is engaged to be married to an Australian citizen. The applicants further explained that the visa applicant has a pending onshore prospective marriage visa application under consideration and he does not expect it to be processed for another twelve to eighteen months. As discussed in the hearing, the Tribunal has considered whether the visa applicant will circumvent this offshore visa application by applying for this temporary visitor visa which, in turn, will incentivise him to apply for an onshore visa to remain in Australia. The visa applicant insisted that in seeking to come to Australia on this visitor visa he would be able to visit his fiancée again while they wait for the other visa to be granted and that this is not unreasonable in itself. The visa applicant further insisted that he would not jeopardise his prospective marriage visa application in favour of breaching conditions imposed on any visitor visa. The review applicant also stated that such a scenario would damage his own reputation with the Department and he would not allow it to occur as he has other relatives who wish to visit Australia, which the Tribunal accepts.

18. As discussed in the hearing, the visa applicant resides with his family in a village near Tripoli in northern Lebanon. The visa applicant’s submitted family residence documents indicating that he belongs to a Sunni family. The fact remains that the economic and security situation in Tripoli and northern Lebanon more generally is poor and unpredictable It was not disputed by the applicants that there were underlying tensions between religious communities, the ongoing negative consequences of large numbers of Syrian refugees on the economy or that there is relative poverty in Lebanon with many seeking to emigrate from that part of Lebanon. While the Tribunal accepts that there have been no serious incidents of violence since 2015 in Tripoli, these factors continue represent strong incentives for the applicant to seek to reside in Australian on an indefinite basis, should the applicant be granted this visitor visa under review. 

19. Nonetheless, in the context of the visa applicant’s sound history of compliance when he last visited Australia, the Tribunal is satisfied that the incentives, including northern Lebanon’s security and economic situation, in him not returning to his home country without breaching conditions imposed on him for a temporary visit do not outweigh the risks to his prospective marriage visa and those other incentives to depart Australia in a timely and lawful manner. While it is clear that the visa applicant intends to permanently settle in Australia as a married partner to an Australia citizen, the granting of this visa is not incompatible with his intentions to temporarily stay in Australia for the purposes for which this visa may be granted. Overall, the Tribunal is satisfied the visa applicant is very unlikely to be induced to recklessly circumvent Australia’s migration laws by applying for a partner visa if this visa were to be granted.

20. Considering the visa applicant’s circumstances cumulatively and for the reasons set out above, the Tribunal is satisfied that the visa applicant’s stated intention to visit Australia temporarily for the express purpose of visiting his paternal uncle and other family members, as well as his affianced, currently residing in Australia is genuine.

21. 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

22. 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.

    Brendan Darcy
    Member