CHLAYLAT (Migration)

[2024] AATA 3645

CHLAYLAT (Migration) [2024] AATA 3645 (27 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Daad CHLAYLAT

REPRESENTATIVE:  Mr Tariq Dadu (MARN: 1385166)

CASE NUMBER:  2308628

HOME AFFAIRS REFERENCE(S):          BCC2023/2564469

MEMBER:Rachel Da Costa

DATE:27 September 2024

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 27 September 2024 at 4:54pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – physical and emotional support to family – period of unlawful residence – family violence – security situation in Lebanon – desire for further family visits – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 30 May 2023 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 28 April 2023. 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 Tourist 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 temporarily in Australia.  

5. The visa applicant appeared before the Tribunal on 29 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s daughter (Ms Al Jamal) and granddaughter (Miss Hraichie). The Tribunal hearing was conducted by videoconference using the Microsoft Teams videoconference platform and the parties attended from the office of their representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. In the hearing, the Tribunal formed the view that at times, the visa applicant was having difficulty understanding and responding to some of the Tribunal’s questions. The Tribunal made an effort to simplify its questions as much as possible and repeated them in different words where appropriate in an effort to assist the visa applicant. The Tribunal does not consider the difficulties the visa applicant was experiencing were due to shortcomings in the interpretation. In any event, to facilitate the hearing, the Tribunal gave Ms Al Jamal greater scope to speak about and on behalf of her mother than would ordinarily be the case.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of providing physical and emotional support to Ms Al Jamal and Miss Hraichie. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

11. 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)). As confirmed by the applicant in the hearing and noted in the delegate’s decision, the visa applicant arrived in Australia in 2019 and has been here ever since. Her original Visitor visa expired in 2020 and then in 2023 she applied for the Visitor visa which is the subject of this application for review. She currently holds a Bridging A visa. While there is no evidence that the visa applicant has not complied substantially with the conditions of her last Visitor visa or current Bridging visa, she has spent time in Australia as an unlawful non-citizen.

12. 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 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

13. The visa applicant is a 76-year-old Lebanese woman who does not speak English. She gave evidence that she is financially supported by Ms Al Jamal and another daughter who lives in the United States. She lives with Ms Al Jamal and Miss Hraichie. The Tribunal accepts that she does not work and has no intention of working in Australia. The Tribunal also accepts that she does not intend to engage in study or training in Australia.

14. The Tribunal has also considered all other relevant matters (cl 600.211(c)). In the hearing, the visa applicant gave evidence that when she came to Australia in 2019, she only intended to stay for three or four months but then her daughter was going through difficult circumstances and was under a lot of stress and she could not leave her daughter in that situation. She has not returned to Lebanon because although she wants to go back, her heart won’t let her leave her daughter alone in Australia and the visa applicant’s husband in Lebanon tells her to stay.

15. Medical and legal documents provided as evidence to the Tribunal, which the Tribunal accepts, indicate that Ms Al Jamal has been the victim of domestic violence, there has been an apprehended domestic violence order made against her ex-husband and she has been granted sole custody of Miss Hraichie. Ms Al Jamal suffers from major anxiety and depression and sees a psychologist and Miss Hraichie also suffers from depression and both women rely on the visa applicant for support.

16. In the hearing, the visa applicant gave evidence about her intention to return to Lebanon that was sometimes contradictory. She said that she wants to go back to Lebanon because she wants to see her husband, other children and grandchildren. On the other hand, the visa applicant said her daughter (Ms Al Jamal) has no other family support in Australia and her heart tells her to stay here and so does her husband, and the situation in Lebanon is not good and the airport may close. She said she wants to stay in Australia until she is sure her daughter is in a good situation and then return to Lebanon, which could be in about five months, but she had no evidence to support that timeframe.

17. Ms Al Jamal gave evidence that she and her daughter are alone in Australia and her daughter needs to live in a family setting and the visa applicant helps with this. She also said that when she had to go to hospital earlier in the year, the visa applicant helped in a way her daughter could not and she would not have been able to manage without her. Ms Al Jamal said the visa applicant wants to go back to Lebanon to see her family back there and then come back to Australia. The visa applicant had booked a ticket but then Ms Al Jamal asked her to delay leaving and the Tribunal hearing was scheduled. She would like the visa applicant to be able to stay for another year.

18. Miss Hraichie gave evidence that the visa applicant wants to go back to Lebanon but she also wants to support Ms Al Jamal and Miss Hraichie. Miss Hraichie said she is getting older and better and doesn’t have other family in Australia and needs her grandmother’s support. She said she wants the visa applicant to stay for another six months or so, go back to Lebanon and then return to Australia to see her again.

19. Similarly, the representative made oral submissions emphasising the visa applicant’s family ties in Lebanon and that she would go back, but also noting that because of the situation of Ms Al Jamal and Miss Hraichie, she needs to stay in Australia. The representative said the visa applicant had booked a ticket a few months ago in May 2024 but then the Tribunal hearing was scheduled. The representative also submitted that the visa applicant is going to stay temporarily and after the hearing, the visa applicant would book her return ticket to Lebanon and they would provide the Tribunal with details.

20. On 13 September 2024, the visa applicant provided the Tribunal with the first page of a flight itinerary showing she has booked a flight to Lebanon departing Australia on 25 January 2025. She also provided screenshots of what may be a record of a flight that was booked in May 2024, but there is no name attached to the booking and the travel details are unclear.

21. The Tribunal expressed its concern about whether the visa applicant genuinely intended to stay temporarily in Australia in light of the evidence, and whether she would depart Australia as required if the visa were granted. Ms Al Jamal assured the Tribunal that it should not have any concerns. Based on the Tribunal’s discussions with the visa applicant, Ms Al Jamal and Miss Hraichie in the hearing, the Tribunal considers that they all now understand that the visa applicant cannot remain indefinitely in Australia under her current visa situation and that if she is granted the Visitor visa she must depart Australia before the visa expires. The Tribunal also explained to them that if the visa applicant returns to Lebanon and wants to be able to return to Australia for another visit in the future then it is very important that she obeys the conditions of her Visitor visa or this could jeopardise her ability, and the ability of other family members, to come and visit again. 

22. The Tribunal is sympathetic to the situation of Ms Al Jamal and Miss Hraichie, who have clearly been through a very difficult time and continue to suffer the consequences. The Tribunal acknowledges that the visa applicant’s presence has been very important to them during this time and as a mother and grandmother, the visa applicant has felt it is critical she remains in Australia to support them for as long as required. The Tribunal is encouraged by the fact that the visa applicant has sought the assistance of a migration agent, she has applied for a Visitor visa rather than remaining in Australia without a visa, and that she has now booked a flight to return to Lebanon where the rest of her family is, in the fairly near future. The Tribunal is satisfied that if the visa is granted, the visa applicant will comply with the visa conditions. On balance, the Tribunal is satisfied that the visa applicant intends to return to Lebanon as planned and she will not remain in Australia after the end of her permitted stay and that the visa applicant, Ms Al Jamal and Miss Hraichie will ensure that this is the case.

23. 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

24. 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.

    Rachel Da Costa
    Member