Assaad (Migration)

[2021] AATA 3549

Assaad (Migration) [2021] AATA 3549 (14 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nermine Assaad

VISA APPLICANT:  Mrs Farize Assaad

CASE NUMBER:  1927385

HOME AFFAIRS REFERENCE(S):          BCC2019/3594434

MEMBER:Stephen Witts

DATE:14 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 14 September 2021 at 11:59am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine intention to stay temporarily for purpose of visa – incentives to remain or return – four adult children, extended family and friends in home country and two adult children in Australia – economic and social conditions – stable and safe area – compliant travel to third country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 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 2 August 2019 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 19 July 2019. 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 the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia for the purpose for which the visa is granted.

5. The review applicant Mrs Nermine Assaad, appeared before the Tribunal on 14 September 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant, Mrs Farize Assaad, the review applicant’s mother.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

9. For the following reasons, the Tribunal has concluded that the decision and review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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 Sponsored Family stream may be granted: cl 600.231.

12. 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)). There is no evidence before the Tribunal that there have been any substantive breaches by either applicant.

13. According to the delegate’s decision record dated 2 August 2019 provided to the Tribunal by the applicant, the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

14. According to the delegate the visa applicant did not provide any evidence of previous travel or demonstrated previous compliance with immigration laws in Australia or other countries. On that basis the delegate stated that the current instability in Lebanon may act as a disincentive for the applicant to return to her home country. According to the delegate it also made an assessment that the visa applicant’s family ties to her home country are limited to non-dependent relatives, that is six adult children, and that the presence of these family members are not sufficient to demonstrate that the visa applicant intends a genuine temporary stay to Australia.

15. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing. In particular Tribunal has considered material provided in an email to it dated 6 September 2021. This material includes a sponsors application letter stating that the review applicant would like her mother, the visa applicant, to visit Australia and see her two young children, material regarding the visa applicant including passport documentation and family registration material as well as bank account details and other visa information. Also included are family details of the visa applicant including a record of her six children, a travel itinerary to Australia, and other information.

16. The Tribunal has also considered a submission from the applicants’ representative dated 6 September 2021 where it was stated that the visa applicant is a 56-year-old female of Lebanese nationality who was born and resides in Lebanon with her family. It was stated that she has four adult children residing in Lebanon and two children in Australia including the review applicant. It was further stated that the review applicant is a permanent resident married with three children and that the other immediate member of the direct family is Wassim Assaad, who is married with one child and who recently arrived in Australia on a spousal visa. It was further stated that the review applicant arrived in Australia in 2014 also on a spousal visa and that she has not travelled back to her home country.

17. In this submission it was also stated that there are significant family ties to the visa applicant’s home country including children and grandchildren, her siblings and other extended family and friends, that the visa applicant would like to visit her family here in Australia for various activities and that where she lives in North Lebanon is a stable and safe area. It was further asserted that the visa applicant genuinely intends to stay in Australia temporarily.

18. At the hearing the visa applicant stated that she has never visited Australia but that she did have another visitor visa application which was refused about two years ago. She stated that the only other country ever visited was Saudi Arabia where she went for a pilgrimage in 2010. She stated that she has two children in Australia aged 25 and 22, including the review applicant, and that they have four children between them and that she has four children in Lebanon, aged 21, 27, 30, and 35 and that there is one grandchild. She stated that she is living with three of her four children and that she is a housewife and divorced. When asked how she was surviving financially she stated that her children were helping her financially and that she has a shop that she rents out. She stated that she has a nephew in Australia and that she has siblings and her parents in Lebanon. She stated that she does not intend to stay permanently in Australia and that she has a life back in Lebanon to return to.

19. At the hearing the review applicant stated that she would like her mother to come here on a short visit as she could not go back to Lebanon for a visit as it is difficult to travel with her three children and that her mother does intend a genuine temporary visit to Australia as she has a life back in her home country.

20. The Tribunal has considered this matter carefully and is concerned about the lack of incentive that the visa applicant has to return home. It is noted that she does have relatives and children in her home country and that she is living with three of them. However, it is also noted that she is divorced and did not indicate that she had a partner, and that her children range in age from 21 to 35. It is noted that she has one grandchild in Lebanon, but it is also noted that she has three grandchildren in Australia. The Tribunal also notes that the visa applicant has stated that she owns a shop which she rents out and that she is managing financially through her children’s salaries earned through sewing and, working in the supermarket, and growing some produce. The Tribunal notes that her shop can continue to be rented out while she resides in Australia and that such investments can be leased or sold from here in Australia in any case, and that her house back in her home country that she says she also owns can also be maintained by three of her children who she says are working and all live in it. As stated the Tribunal has considered this matter carefully and is concerned that the visa applicant lacks an incentive of employment or any dependent family members that would act as an incentive for her to return to her home country and that this lends weight to the contention that the visa applicant does not genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

21. The Tribunal has also considered the applicant’s travel history noting that the only country she has ever visited is Saudi Arabia. The Tribunal is concerned by this as the visa applicant lacks a defined travel history. The Tribunal has considered that Saudi Arabia is not a comparable immigration option to Australia in that it does not provide the same economic and social opportunities that the developed economy of Australia offers and it is also noted that she has family here in Australia anyway. The Tribunal finds that this also lends weight to the contention that the applicant would not be a genuine temporary visitor to Australia.

22. The Tribunal also notes that the economic, and social circumstances back in Lebanon are particularly bad according to country information reports issued recently by the Department of Foreign Affairs and Trade which refers to that countries limited economic opportunity for its citizens. The Tribunal considers that these economic and humanitarian crises of recent times are a significant factor promoting migration to Australia. The Tribunal has considered this information very carefully but is not satisfied that the conditions back in the visa applicant’s home country are conducive to her having a genuine intention to stay in Australia temporarily for the purpose for which the visa is granted.

23. Accordingly, the Tribunal is not satisfied that if the visa applicant were to come to Australia that she would not seek to change her status on shore given the advantages that she would derive from being here in Australia with her family. The above-mentioned factors give the Tribunal significant concerns that the visa applicant would seek to change her status on shore and/or remain in Australia and that she does not genuinely intend to stay in Australia temporarily.

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

25. For the above reasons the Tribunal is not 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 not met.

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Stephen Witts
    Member