Boutros (Migration)

[2021] AATA 2087

Boutros (Migration) [2021] AATA 2087 (27 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Roula Boutros

VISA APPLICANT:  Mr Khalil Boutros

CASE NUMBER:  2007752

HOME AFFAIRS REFERENCE(S):          BCC2019/6786846

MEMBER:Nora Lamont

DATE:27 May 2021

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 27 May 2021 at 3:39pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – visa and travel history, including visa refusals, overstay, immigration detention and 3-year exclusion – parents in home country and two close siblings and their families in Australia – strong assurance of compliance by applicant and family members in Australia – consequences of non-compliance on potential future returns to Australia – 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 26 February 2020 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 20 December 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 for the following reasons:

   ·The applicant’s family ties are limited to his parents.

   ·The Northern area of Lebanon has civil unrest.

   ·The applicant has an adverse immigration compliance and history

   ·Departmental records indicate that some of the applicant’s close family did not comply with their visa obligations.

5. The review applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the applicant’s sister, the applicant’s brother in law, and the Representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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 sisters, their spouses and his nieces and nephews. 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. The Tribunal is aware of the applicant’s migration background and holds concerns related to his past visa applications. These include the following:

    ·A Protection Visa which was refused on 16 April 2010.

    ·Ministerial Intervention for the Protection Visa was not considered on 15 September 2011.

    ·On 10 April 2015 the applicant applied for a waiver of his visa condition 8503 which was refused on 15 April 2015.

    ·The applicant was detained by the Department and a three-year exclusion ban was applied.

    ·The applicant departed on 1 May 2015 after receiving a Bridging Visa E. (See discussion below)

    ·On 3 July 2015 the applicant lodged a partner visa which was refused on 11 September 2017.

12. The Tribunal did discuss with the review applicant and the visa applicant his adverse migration history. The following is a summary of the discussion:

    How can the Tribunal be certain you will return to Lebanon given the adverse migration information before it? The biggest mistake was coming to Australia and breaking the law. All my life I will regret this, and I assure you that I will solve this issue and this will never happen again. It was wrong, it was all very stressful, and this is what happened. I feel guilty about doing this to my niece we are very close.

    I have to go back to take care of my mother as I am her caretaker and live with her. She has high blood pressure and needs help with her diet. I also need to get back to the family business.

    The applicant’s brother in law stated that he would put his house up as a security and that he assured the Tribunal that there would be no way he would be staying beyond the validity of his visa. He would make sure of it.

    The applicant’s sister stated that when he was in Australia, he lived with her and her family and that he was a member of the immediate family and very close to the children, his nieces and nephews.

    The applicant has been out of Australia for six years and is sorry for his non-compliance. He would not want to put his family in harm by disregarding the law again.

    The family is extremely close, and the review applicant is especially close to her brother and suffers from anxiety and migraines which has been exasperated due to the family situation.

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. The applicant has an adverse migration history and several years of being unlawful. The Tribunal has taken this into consideration. However, the applicant did receive a Bridging Visa E on departure grounds in 2015 and an airplane ticket paid for by family. The applicant did comply with the conditions on his Bridging Visa E and did depart Australia on the date he was scheduled to. In the delegate’s record the delegate noted the following:

    From speaking with Mr Boutros at length I find him to be credible, I also believe that the motivation to depart Australia as he so states and potentially return lawfully to be with his family is greater than the risk to conceal himself unlawfully in Australia. I have considered the strong family support that Mr Boutros has in Australia and note that he is well support financially by his family and as such have assessed that he does not require to work during the next 2 weeks in Australia. I have considered the imposition of a security bond however I feel that Mr Boutros's strong family support and motivation to return to Lebanon is strong enough to not require this.

15. The Tribunal has given this factor and the applicant’s compliance with his Bridging Visa E on departure grounds, and that he did indeed depart some significant weight. The passage of time and regret expressed by the applicant and his family also have been given significant weight.

16. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has regard for family reunification and has given weight to the closeness of the family. It is obvious to the Tribunal that the entire family regrets that the applicant was unlawful and did not abide by the conditions on his visa. The Tribunal is satisfied that the applicant will abide by the conditions on his visa and depart Australia prior to the expiry of his visa.

17. The applicant since he left Australia in 2015 has had his partner visa refused and affirmed by the AAT. He has subsequently been divorced due to the stress and distance from his wife whom he married in Australia in 2012. This has caused the applicant and his family much stress and heartache and leads the Tribunal to believe that the applicant would not want to get into a situation again such as he did prior to 2015.

18. Further, the passage of time and compliance with his departure has been given weight in the conclusion that the applicant plans a genuine visit to Australia. His strong family ties and the closeness of the entire family is also a factor, they have assured the Tribunal he will return to Lebanon and under no conditions will he stay beyond the validity of his visa.

19. 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

20. 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.

    Nora Lamont
    Member