Baarini (Migration)

[2018] AATA 1452

Baarini (Migration) [2018] AATA 1452 (3 April 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hanady Baarini

VISA APPLICANT:  Mr Mohamad Al Baarini

CASE NUMBER:  1710541

DIBP REFERENCE(S):  CLD201718732973

MEMBER:Rosa Gagliardi

DATE OF DECISION:  3 April 2018

DATE CORRIGENDUM

SIGNED:25 May 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

On the front page of the decision record the date was recorded as “3 April 2017” this should be replaced with “3 April 2018”

Rosa Gagliardi
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hanady Baarini

VISA APPLICANT:  Mr Mohamad Al Baarini

CASE NUMBER:  1710541

DIBP REFERENCE:  CLD201718732973

MEMBER:Rosa Gagliardi

DATE:3 April 2017

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 03 April 2018 at 5:09pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsor’s health condition – Family’s travel history – Age and education of visa applicant – Sponsor’s credibility

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 25 April 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 19 April 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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 because of the prevailing social, security and economic circumstances in Lebanon at this time.

5. Having had regard to the review applicant’s circumstances (the sponsor) the Tribunal has decided to make a decision in this matter “on the papers”.

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 his daughter (the sponsor) and grandchildren in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   Background

9. The sponsor is 31 years of age.  She has submitted credible information that she is a mother of three children aged 10, 4 and 11 months.  She has stated that she wishes to have her 58 year old father from Tripoli, Lebanon, visit as she has been experiencing a difficult separation from her husband and as a result has developed mental health difficulties arising from the stress.  The sponsor would like her father to visit for 3 months only to assist her with her circumstances.  While the Tribunal queries why her mother is not travelling to Australia on this occasion, it appears that the separation involves cultural factors where the presence of a male authority figure as an intermediary is required. 

10. Evidence of an admission in an emergency department has been submitted where she was treated for “stress”.  An additional medical report notes that she suffers from severe depression, high blood pressure and diabetes.  She has no family members in Australia who can assist her with her family issues and to assist care for her children.

11. Information shows that the applicant has been an Educator with Playtime Family Day Care educating and caring for children on a full-time basis since December 2016, and that prior to this she worked as an Educator on a full time basis with Just 4 Kids Family Day Care services for a period of three years.

12. The sponsor has also provided evidence of her salary and that she has $18,423.34 in a Westpac account.  She has claimed that she is in a comfortable position to be able to take care of her father’s travel expenses.

13. From the evidence the Tribunal is satisfied that the sponsor is finding it difficult to cope with her personal circumstances in Australia.  A statutory declaration by Ms Fatima Joud, an Australian Legal Practitioner who has been assisting the sponsor with legal and moral advice, dated 6 April 2017, states that the sponsor has been dealing with severe depression and anxiety due to her current domestic situation and separation.  Ms Joud confirms that the sponsor does not have family in Australia as they all reside in Lebanon and that, “I have witnessed the trauma she is currently experiencing and believe that she urgently requires the support of a family member to assist her in overcoming her current difficulties”.  Ms Joud states that her greatest concern is that if the sponsor’s current condition were to worsen, it would be detrimental for the children.  The sponsor had also has expressed concerns for her safety due to her separation and upcoming divorce and has admitted struggling to sleep at night.  The Tribunal places significant weight on Ms Joud’s statement.

14. The Tribunal notes, however, that accepting the sponsor’s personal circumstances is not part of the test for the applicant meeting the requirements of cl.600.211. The Regulations focus, instead, on the intention and circumstances of the sponsor in assisting the decision maker to be satisfied as to whether or not the applicant genuinely intends to stay temporarily in Australia for the stated purpose. Nonetheless, the Tribunal accepts that in some circumstances, as occurs in this case, the credibility and the circumstances of the sponsor intersect with the projected intention of the applicant.

    cl.600.211(a)

15. 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)).

16. The applicant has never travelled to Australia previously.  Nonetheless, the sponsor has stated that her mother, who is married to her father, has visited Australia on three separate occasions and on each occasion has abided by Australia’s immigration laws.  Furthermore, the sponsor argues that the fact her father has never made overtures previously to come to Australia, supports her contention that her father has never had an intention to leave Lebanon and migrate to Australia permanently.

17. The Tribunal places weight on the applicant’s mother’s previous travel history to Australia and her compliance with her visa conditions on those occasions.  The Tribunal considers that it is reasonable to extrapolate that her father will similarly return to Lebanon and that he, his wife and family do not have long-term plans to migrate to Australia permanently, and that it is the sponsor’s condition that has prompted a visit by her father on this occasion.

    cl.600.211(b)

18. 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:

    ·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.

19. The applicant would be leaving behind his wife and four children; some of whom are adults but still dependent on the applicant.  At the time of application his parents also appeared to live in Lebanon along with his siblings. The applicant is a janitor who, the evidence shows, has worked for “The Green Building” in Tripoli, North Lebanon for ten years.  His employer has provided a letter to advise that he earns 900, 000 Lebanese Pounds per month (the equivalent of roughly AUD775.30) and that he had been granted 3 months’ leave from his employ. 

20. In addition, the applicant has submitted evidence of holding the title, with his spouse, an apartment with three bedrooms and two bathrooms.  His deposit account demonstrates that as at 4 April 2017 he had saved 7,105,173 Lebanese Pounds which is roughly equivalent to AUD6,069.44.

21. The Tribunal has considered the evidence individually and as a whole and is satisfied that in light of the applicant’s profile he will abide by his visa conditions.  The applicant’s age as a 58 year old man and his work history in Lebanon has largely determined this matter. 

22. Had the applicant had an intention to work in Australia, the Tribunal considers he and his family would have migrated here during his younger years to maximise his earning capacity, rather than wait until his chances of finding any form of unskilled or skilled work would be diminished considerably given his age.  The applicant has invested in his current employment in Lebanon in terms of having worked there for ten years and the Tribunal finds that it is not probable that the applicant would start over in Australia to accumulate any superannuation-like benefits, as he has done in Lebanon, although the Tribunal acknowledges that salaries in Australia are much higher, even in unskilled jobs.

23. While the applicant’s earnings in Lebanon are minimal compared to what he might be able to earn as a janitor in Australia, his age combined with his limited education, would mean that it is not likely he would find regulated work as a janitor here for the longer term.

24. Furthermore, the applicant’s age and profile do not point to the applicant coming to Australia to study for a lengthy period and changing his status onshore.  Even if he were to study in Australia for some reason, he would have little time given his age, to realise the efforts and costs of such study in terms of being employable in Australia or elsewhere.

25. The Tribunal does not dismiss the worrying economic and security conditions in Lebanon, particularly in the North of Lebanon and Tripoli, in particular and that Australia represents a highly desirable migration destination.  However, the Tribunal is not aware of any circumstances that affect the applicant that would prompt him to flee his country and make a new life in Australia.  Given the Tribunal’s findings regarding the credibility of the applicant and his personal circumstances the Tribunal considers that the adverse country information is outweighed by such concerns about the country conditions on this occasion.  An applicant with a dissimilar profile and set of circumstances may have produced a different result.

26. For similar reasons the Tribunal is also satisfied that the applicant would over stay his visa and is satisfied that his only purpose is to provide some temporary assistance to the sponsor and his grandchildren while she undergoes a transition from a married woman to a single mother of three young children without a male figure head.

    cl.600.211(c)

27. The Tribunal has also considered all other relevant matters (cl.600.211(c)).    The Tribunal has also considered the sponsor’s letter to the Tribunal of 16 May 2017 in which she wrote, among other things:

    I am currently undergoing extreme emotional stress due to my domestic issues and separation.  The rejection of my father’s visa application is making it substantially more difficult.

    My father is a hard working family man and intends to come to Australia temporarily to provide my three children and I with emotional support in this difficult time.  He has no intentions in overstaying his time.

    I note that the town in which my father resides in Lebanon has not been subjected to the current political conditions in Lebanon.  My father, mother and siblings have always lived a pleasant life in Lebanon, have been able to financially support themselves, have lived very comfortably and have no reason to want to depart Lebanon permanently.  My parents have a strong and compatible relationship and there is no chance of my father not returning back home to my mother and his other children.  My father has 4 other children in Lebanon that he will need to go back and support.  He works full-time.

28. While the Tribunal has emphasised that it is the intention and circumstances of the applicant that are paramount in the Tribunal’s deliberations as to whether or not the applicant will comply with his visa conditions, the Tribunal considers that in this case, the sponsor’s credibility and her strong need to have a male parent to assist with her circumstances have also contributed, albeit to a lesser extent, to the Tribunal reaching its decision in favour of the applicant.

29. 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

30. 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.

    Rosa Gagliardi
    Member