Assaad (Migration)

[2024] AATA 1459

Assaad (Migration) [2024] AATA 1459 (19 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Moustafa Assaad

VISA APPLICANT:  Mr Ragheb Assaad

REPRESENTATIVE:  Mr Sam Issa

CASE NUMBER:  2306334

HOME AFFAIRS REFERENCE(S):          BCC2023/2438942

MEMBER:Anne Grant

DATE:19 April 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 19 April 2024 at 2:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – substantial compliance with previous visa conditions – close family members – capacity of other family members to visit Australia in the future – intention to comply with visa conditions – all other relevant matters – economic and security situation in Lebanon – 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 Home Affairs on 4 May 2023 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 21 April 2023. 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purposes for which the visa is granted.  

5. After considering the information provided by the visa and review applicants, and taking into account that the application had been granted priority,  I decided that I was able to make a decision on the papers without inviting the applicants to a hearing. 

6. The review 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 visa applicant is a citizen of Lebanon.  In the application for the visa (lodged on 21 April 2023), the visa applicant stated that he wished to visit Australia for the purposes of a family visit, hoping to arrive in June 2023.   He gave his address in Aakkar Province and requested a stay of up to three months.  He stated that he intends to visit his brother (the review applicant, who sponsored the application.) The review applicant lives in Victoria, Australia.

9. In the application, the visa applicant gave his occupation as a professional who works at an Accounting Business in Tripoli, Lebanon.  He stated that his visit would be self-funded by his own resources.  He also stated that he had never visited Australia or any other country and failed to comply with visa conditions.  He declared that he had previously applied for and been refused a visitor visa to enter Australia.

10. Documents lodged with the application for the visa were as follows: 

    ·Evidence that the review applicant is a ratepayer (owner) for the property in which he lives;

    ·The family register demonstrating that the visa applicant and sponsor are siblings, both children of Mahmoud Assaud and Fatima Youssef;

    ·Evidence showing that the review applicant had a Westpac account balance of more than $13,000 as at 5 April 2023.

    ·Letter from the visa applicant’s employer confirming he works as an accountant at UDAC Office for Accounting, Auditing and Consultation since 1 April 2018.  This letter confirms he is entitled to two months leave.

    ·Letter from the Mayor of Souwaika certifying that the visa applicant intends to marry Ms MMH in October 2023;

11. The applicants have submitted additional material to the Tribunal in the process of review.  That information includes: 

    ·A letter from Northern Health Cardiology Doctor Tran confirming that the applicants’ father was admitted to hospital on 24 February 2024 with a discharge date expected to be 27 February 2024. 

    ·Medical Report from Dr Adil Al-Hobaish at Broadmeadow Medical Centre dated 22 March 2024.  This letter states that the report writer is intimately familiar with the applicants’ father’s medical condition and the importance of family support in managing his heart condition.  He suffers from poorly controlled type 2 Diabetes, a high lipid profile, complicated by a recent heart attack which required hospitalisation and further treatment by stenting.  The doctor notes that the presence of his family has proven to be a vital source of comfort and strength during his treatment.  He gives the opinion that the visa applicant’s presence will positively affect the patient’s psychological well-being, and his health and recovery.  Dr Al Hobaish also requests that his son can safely travel from Lebanon to Australia to have the opportunity to escort the patient home.

    ·Statutory declaration from the review applicant, dated 1 April 2024.  In this declaration, he includes information of his being an Australian Citizen who was granted permanent residence on the basis of a partner visa application.  He is currently married with a dependent child.  He owns his own business.  He also notes that the visa applicant is engaged.  He notes that his brother initially intended a visit to spend time with him and his family but since his father’s recent medical episode, there is now an urgent need for him to come to Australia so he can accompany their father back to Lebanon.  He will only stay a few weeks and will be staying with the review applicant and his family. He notes that his parents have visited Australia on 3 separate occasions; in November 2019, November 2022, and November 2023.  They are both currently in Australia on valid visitor visas.  He further notes that his father was intending to return to Lebanon in May 2024 but due to his health concerns is currently waiting on advice about when he can safely travel.  The visa applicant has been a Red Cross volunteer ambulance crew member for approximately 5 years, and has received emergency medical training which would be useful if their father experiences any episodes during the flight back to Lebanon.  He also notes that his brother has long term employment, with a monthly salary of USD $1200, and owns a two-storey house and three commercial shops from which he derives monthly rental income of USD$2000.  He also has cash savings totalling around USD $88,000.  The review applicant addresses and acknowledges the importance of maintaining a sound immigration record which will assist in facilitating future family visits, and offers to provide a security bond.  He notes that his brother is also planning to marry in September 2024.

    ·Red Cross First Aider card in the visa applicant’s name;

    ·Further letter from the visa applicant’s employer confirming his continued employment as an accountant at Audac Auditing and Consulting in Tripoli, Lebanon and confirming his salary.

    ·Confirmation from The Lebanon Ministry of Interior and Municipalities of the visa applicant’s property holdings;

    ·The visa applicant’s BBAC account statement in US Dollars showing a balance of USD $10,550 as at 7 March 2024;

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting his family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

14. 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)).

15. The visa applicant has not previously held an Australian visa nor visited Australia.  However close family members (his mother and father) have been sponsored to visit Australia in 2019, 2022 and 2023. An examination of the relevant movement records for the visa applicant’s parents indicate that they have complied with the conditions of visas granted to them.  The sponsor has also acknowledged that they are aware that any breach of conditions by the visa applicant if the visa is granted could negatively impact on the capacity of other family members to visit Australia in future.  I accept that the potential impact on the review and visa applicants’ elderly parents’ capacity to visit Australia in future is a significant incentive for the visa applicant to comply with the conditions of the visa if granted.  I give the family history of having complied with visas granted some weight, noting in particular that they have travelled to and from Australia during periods of significant unrest and economic instability in Lebanon and nonetheless returned in compliance with visa conditions. The delegate cited the current economic and security conditions in Lebanon as a significant factor which provided the applicant with an incentive to remain in Australia at the end of the permitted stay. 

16. 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.

17. The evidence before me suggests that the visa applicant intends to comply with any and all conditions to which the visa would be subject.  I accept that the visa applicant is fully employed in Lebanon, has substantial personal resources, is planning to marry later in the year.  The evidence suggests that he intends to and would comply with the conditions of the visa, and intends only to visit Australia for a short visit to enable him to accompany his ill father home to Lebanon. 

18. I have also considered all other relevant matters (cl 600.211(c)).   I am satisfied that the visa applicant has the means to support himself during his stay, that he will be provided with accommodation by his brother, and that there are significant personal and professional incentives for him to return to Lebanon. 

19. I have had regard to the economic and security situation in Lebanon and acknowledge that the country has faced genuine and serious economic and political instability over recent years, and particularly since 2019.  However the region of the country in which the visa applicant and his family reside is distant from the troubled border regions and the visa applicant’s situation is not one of financial hardship.   As noted earlier, I also observe that despite the economic and security situation in the country, since 2019 his parents have visited Australia and returned to Lebanon twice, even during periods where significant hardship and insecurity have been reported.     

20. I have carefully considered the information and evidence provided against the relevant matters to which I must have regard. I am satisfied that the visa applicant’s career, his upcoming marriage, the return of his parents and his relative financial security in Lebanon provide him  with significant incentives to return to his country at the end of a permitted stay.  Even when those incentives are weighed against the continuing economic situation in the country,  I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia to visit his family and assist his father to return safely to Lebanon.

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.

    Anne Grant
    Member