Assaad (Migration)

[2018] AATA 4530

Assaad (Migration) [2018] AATA 4530 (20 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Badrie Assaad

VISA APPLICANT:  Mrs Fattoum Hassan

CASE NUMBER:  1715949

HOME AFFAIRS REFERENCE(S):           BCC2017/1701405

MEMBER:Nicole Burns

DATE:20 September 2018

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 20 September 2018 at 9:20am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous visa compliance – purpose of visit – care of grandchildren – definition of work – child with a medical condition – numerous family in home country – property in home country – family farm commitments – security situation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 600.211, 600.231, 600.612

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 13 June 2017 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 10 May 2017. 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 19 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her brother, Youssef Assaad, and the visa applicant (who is the visa applicant’s mother) via the telephone from Lebanon.  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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her children and grandchildren in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. 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)).

10. Departmental movement records indicate that the visa applicant has visited Australia five times as the holder of a visitor visa: from 22 April 2009 to 13 Oct 2009; 1 July 2010 to 31 December 2010; 10 July 2012 to 10 January 2013; 7 April 2014 to 29 September 2014; and from 23 October 2015 to 21 April 2016.  There is no evidence before the Tribunal to indicate that the visa applicant did not comply with the conditions of those visas, including departing before the end of her permitted stay. 

11. 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.

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

13. The delegate was not satisfied that the visa applicant demonstrated sufficient ties to return home to Lebanon after any visitor visa that may be granted.  He noted as well that the unpredictable security situation in Lebanon may encourage the visa applicant to stay in Australia. 

14. The Tribunal has considered the visa applicant’s particular circumstances in Lebanon and reasons for the proposed visit as well as the immigration history of her family members in Australia, where relevant.

15. The visa applicant indicated in the visa application form that she wished to visit her daughter (the review applicant) in Australia for up to six months to assist after the birth of her seventh child on 5 April 2017.  At hearing the review applicant said she is pregnant with her eighth child who is due in December 2018 and wants her mother to be present for the birth and help her look after her other children, who are all under the age of 12, with four of them currently attending school.  The Tribunal had some concern that the visa applicant was intending to provide child care to her grandchildren in Australia, can be considered to meet the definition of ‘work’.  The Tribunal notes in this respect that even if this work is unpaid, it is considered ‘work’, defined in regulation 1.03 as ‘an activity that, in Australia, normally attracts remuneration’ and therefore would not comply with condition 8101.  At hearing the review applicant said that would not be the case and she just wants her mother to visit during this period, as she has many times in the past without breaching her visa conditions.  Although not without doubt, the Tribunal is willing to accept her claims in this regard, and accepts the claimed purpose of the visit and is satisfied that the visa applicant does not intend to undertake ‘work’ whilst in Australia.

16. Before the Tribunal the review applicant described her mother’s circumstances in Lebanon.  She said she is a 68 year old widow who lives in Kabhit, Akkar Province in Northern Lebanon in a house she owns with her son, who does not work due to suffering from heart disease. Whilst she is in Australia her son will stay with her daughter, as he has in the past. The visa applicant has three other children who live nearby in Lebanon and around 23 grandchildren as well as extended family members.  The review applicant said her maternal grandmother also lives near her mother, with her mother’s brother and his family.  In addition to owning her own house, the visa applicant owns land and receives an income from producing olives. 

17. In addition to the presence of the review applicant and her seven children in Australia, the visa applicant’s three sons and two grandchildren live here.  Their presence does act as incentive to some extent for her to stay in Australia.  However the existence of her other children – including her son with heart disease whom she helps care for – numerous grandchildren and elderly mother in Lebanon acts as a significant incentive for the visa applicant to return there before the expiry of any visitor visa that may be granted. 

18. The Tribunal accepts the visa applicant owns her house and land in Lebanon and considers this acts as some, albeit limited, incentive for the visa applicant to return to Lebanon.  However these assets could also be sold if required.

19. The review applicant told the Tribunal she migrated to Australia in 2006 on a spouse visa.  Two of her brothers who reside in Australia also migrated here on spouse visas.  There is nothing before the Tribunal to indicate that they circumvented the proper migration channels to do so and establish their lives here.  The review applicant and her brother, Youssef, were emphatic in their oral evidence to the Tribunal that they would ensure their mother abides by any future visa conditions, as she has on five separate occasions in the past.  Given these considerations the Tribunal is of the view that the review applicant and her brother Youssef would ensure their mother returned to Lebanon before the expiry of any visitor visa that may be granted, particularly so as not to jeopardise any future visitor visa applications.

20. At hearing the review applicant gave evidence that another brother (Assaad Assaad) came to Australia in 2007 on a [visitor visa].   She was not sure about the status of his case or why he [chose to leave] Lebanon, except to say that he has some ‘issues’.  When asked, she said that her brother’s issues are not related to their mother.  Youssef said the Department had refused to grant his brother a [different visa], he sought review of that decision with the Tribunal (unsuccessfully) and then he appealed that decision with the courts.   Youssef was also unaware of the status of his brother’s case or the reasons why his brother had [applied for a different visa].  The visa applicant said [she] was unable to state why he [left] Lebanon, apart from making a general reference to the sometimes unstable and unsafe security situation there: however she was quick to add that she is not affected.  The Tribunal found the applicants and Youssef’s vague oral evidence about Assaad’s [current] status to be of some concern, finding it odd that they would not know any details about his case, particularly [since he applied for the new visa].  Despite these concerns, the Tribunal is willing to accept the review applicant’s claims that Assaad’s ‘issues’ are not related to their mother, giving weight to the fact that the visa applicant has visited Australia at least four times since Assaad applied for [another visa] and has always returned to Lebanon before the expiry of her visitor visas. 

21. The delegate noted in their decision record concerns about the unpredictable security situation in Northern Lebanon as a result of the neighbouring conflict in Syria, referring to DFAT reports.  DFAT’s assessment in their most recent country information report on Lebanon is that overall the security situation in Lebanon remains largely stable, but unpredictable.[1] DFAT’s most recent travel advice is to reconsider a need to travel to Northern Lebanon (where the visa applicant resides) due to a high level of risk.  They also state the ongoing conflict in neighbouring Syria is affecting stability in Lebanon.[2]  At hearing the review applicant said her mother is not affected (by the security situation); she has no concerns; and leads a normal life there.  Youssef submitted that Akkar covers a big area; their village is far away from Syria and the border area; there is no war or kidnappings currently; and nothing to worry about at the moment.  As mentioned, the visa applicant acknowledged the at times unstable security situation but emphasised that she is not affected and is economically secure with her house, land and the support of many family members.  The Tribunal found the applicants’ credible witnesses at hearing and is willing to accept that the visa applicant is not directly affected by the unpredictable security situation in Northern Lebanon as submitted.  Whilst the Tribunal considers the at times unpredictable security situation in Northern Lebanon may act as a disincentive for the visa applicant to return there to a certain extent even if not directly affected, it notes DFAT’s assessment that overall the security situation remains largely stable and considers any residual concern about its unpredictability is outweighed by other positive aspects of this case, as discussed. 

    [1] DFAT Country Information Report Lebanon, 23 October 2017.

    [2] DFAT Smartraveller, Lebanon, last updated 22 June 2018, still current at 13 September 2018.

22. In summary, the Tribunal accepts that the visa applicant has reasonably strong incentives to return to Lebanon in the form of numerous family members, including young grandchildren, as well as her olive farm commitments, which it is submitted (and the Tribunal accepts) are seasonal and can be looked after by her son-in-law’s when she is away.  There are some concerns about the unpredictable security situation in Northern Lebanon acting as a disincentive for the visa applicant to return there, but the Tribunal is of the view that this concern is outweighed by other positive aspects of the case, as discussed.  .  

23. In reaching this conclusion the Tribunal has given significant weight to the visa applicant’s immigration history in Australia: specifically visiting five times for a total of around 30 months, and having always abided by the relevant visa conditions, including returning to Lebanon before the expiry of her visas.

24. 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

25. 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.

    Nicole Burns
    Member