Baiuo (Migration)

[2018] AATA 206

Baiuo (Migration) [2018] AATA 206 (25 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamed M A Baiuo

VISA APPLICANT:  Mr Ramadan Mohamed Ali Bayou

CASE NUMBER:  1725341

DIBP REFERENCE(S):  BCC2017/3318595

MEMBER:Moira Brophy

DATE:  25 January 2018

PLACE OF DECISION:  Sydney

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 25 January 2018 at 3:50pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family Stream – Wishes to visit ill brother – Travelled extensitivley to other countriesfor work – Strong incentivites to return to Libya – Remaining family in Libiay – Successful medical career – Credible witnesses

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994 Schedule 2 cls 600.211, 600.612, 600.231 Schedule 8 Conditons 8503, 8531

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 7 October 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 11 September 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 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 because the delegate was concerned the purpose of the visit was not a genuine temporary stay and further the applicant was not sponsored by a prescribed person or organisation.

5. The review applicant appeared before the Tribunal on 23 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from the wife of the review applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother who is medically unwell. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).

11. At the time of hearing the visa applicant told the Tribunal that while he had not previously travelled to Australia he had travelled extensively in Europe and Asia as part of his employment as a paediatrician and neonatologist. His evidence was he had previously studied for seven years in Germany and he had attended medical conferences in many places including Italy, Hungary, Germany and the Philippines. He said he had always complied with the terms of any relevant visa and apart from the refusal of Australia to grant him a visa he had no other visa refusals.

12. The Tribunal accepts the evidence given by the visa applicant that he has to date substantially complied with the terms of any visas he has been 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. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit his brother. The review applicant has recently undergone a heart transplant and his recovery has been complicated by ‘severe oropharyngeal dysphagia and malnutrition requiring percutaneous enterostomy gastric feeding (PEG)….’ All the review applicant’s siblings were remaining in Libya. His wife and three children were with him in Australia as well as a cousin on his paternal side. He had not seen his siblings since he left Libya eight years ago. Given he is medically trained the siblings of the review applicant have made a decision the visa applicant is best placed to assess the review applicant’s ongoing health needs. Tribunal accepts it is the intention of the visa applicant to visit his brother who is unwell and to assess his ongoing health needs. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

16. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that he had not seen his brother for eight years. He stated he wanted to spend time with him and to meet his children. He stated the review applicant was not able to travel to Libya given his poor health.

17. The review applicant gave evidence that the visa applicant wants to come to Australia for one month. The visa applicant provided evidence he is entitled to one month’s paid leave from his employment at the Benghazi Medical Centre as Head of the Neonatal Unit and Consultant Neonatologist and Pediatrician Pediatric Department. He also works in a part time capacity as an Assistant Professor and Head of the Pediatric Department in the Faculty of Medicine at the Libyan International University. In his evidence at hearing he said he would be in Australia for two to three weeks. He stated he intended to stay with his brother but if it was too crowded he had the financial means to stay at alternative accommodation close by.

18. The Tribunal asked the review applicant what incentives the visa applicant has to return to Libya at the end of his permitted stay in Australia.

19. He responded that his incentives to return are his wife and children, his siblings and his work. All his siblings save for the review applicant are in Libya. When asked what would happen if he comes here, changes his mind and does not want to return to Libya, he responded that he loves his wife and children and it took him a long time to build his successful medical career in Libya. He stated that he also has his business interests in that he owns three parcels of land In Benghazi as well as the house he and his family live in.

20. The Tribunal asked the review applicant what impact the political, economic and security situation in Libya has had on the visa applicant.

21. He responded that they live in a city where the situation has improved and it has not been as impacted as other parts of Libya.

22. The Tribunal asked the visa applicant what incentives he has to return to Libya at the end of his permitted stay in Australia. He responded that his biggest incentive to return is his family. He stated that his wife, children and siblings live in Lebanon. When asked what would happen if he came here and then changed his mind and decided to stay here, he responded that he has not even thought about that. He stated that he has his family and his work in Libya. He stated that he wants to visit his brother and his family in Australia but has no intention of living here. He stated that some of his children are still in school and he has to cover their expenses. He stated that it is impossible for him to leave them.

23. The Tribunal asked the visa applicant what impact the political, economic and security situation in Libya has had on him and his family. He responded that the situation in Benghazi has improved markedly in the past few months. He stated that the security, political and economic situation has had little impact on him.

24. The Tribunal has considered the evidence given by the review applicant's and his wife. They have young children and neither of them is in paid employment. When this was considered along with the health of the review applicant the Tribunal accepts it would be most difficult for them to travel to Libya. The review applicant stated he is very close to the visa applicant and they want him to come here and have a holiday. He stated that the visa applicant is law abiding and that all the members of the review applicant's family are also law abiding.

25. The Tribunal has considered other relevant matters. The review applicant gave evidence that it is difficult for him to travel to Libya so it is very important for him to be able to have his family members visit him in Australia. He stated that if the Department requires a security bond he and his wife are prepared to lodge a bond of between $20,000.00 and $25,000.00. He stated that he is confident that he will return to Libya.

    Findings

26. Having considered all the evidence, the Tribunal is of the view that the visa applicant, the review applicant and his wife are credible witnesses. The Tribunal accepts that the visa applicant has a deep commitment to his family and that this would provide a strong incentive for him to return to Libya. The Tribunal also accepts that he is well established in his employment and that this provides a further incentive for him to return to Libya. The Tribunal accepts that he has the financial resources to pay for his trip to Australia. The Tribunal accepts that he does not intend to work, study or undertake any training in Australia. The Tribunal places considerable weight on the fact that he has only applied to visit in the context of his brother being in poor health and not having seen any of his siblings for eight years. The Tribunal accepts the evidence that the family collectively made a decision the visa applicant was best placed to assess the health and ongoing needs of the visa applicant and his family because of his medical training.

27. The Tribunal accepts that the review applicant and her husband will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that his family members are able to visit him in Australia and that he will ensure that the visa applicant complies with the conditions of his visa so as not to jeopardize other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of his visa.

28. The Tribunal accepts that the visa applicant's incentives to return to Libya outweigh his incentives to remain in Australia after the end of his permitted stay. The Tribunal accepts that he intends complying with the conditions of his visa.

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.

    Moira Brophy
    Member