Dannawi (Migration)

[2019] AATA 596

Dannawi (Migration) [2019] AATA 596 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Dannawi

VISA APPLICANT:  Mrs Mahmoudieh Al Kurdi

CASE NUMBER:  1730138

HOME AFFAIRS REFERENCE(S):           BCC2017/4285593

MEMBER:Margie Bourke

DATE:18 February 2019

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 18 February 2019 at 10:49am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – family visit – incentives to return home – family members in Lebanon – son’s upcoming wedding – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 21 November 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 15 November 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 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 the delegate was not satisfied the visa applicant genuinely intended to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone, and from the review applicant’s wife. 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 his registered migration agent. The representative attended the Tribunal hearing.

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 her children and grandchildren who live in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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 evidence before the tribunal is that the visa applicant has never travelled out of Lebanon previously, and therefore has never held a visa in another country.  Accordingly, there is no evidence in relation to previous compliance with visas.

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(2)):

    ·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.

13. The Tribunal accepts the evidence before it that the review applicant resides in Australia, and has lived here for more than ten years. I accept the review applicant cam e to Australia as the holder of a partner visa, and is married to his wife and has three young children. I accept the review applicant has a sister and two brothers who also reside in Australia, and who are also married with children.  The visa applicant has four children and eight grandchildren who reside in Australia. I accept the purpose of the visa applicant’s visit is to visit her four children and meet and visit her eight grandchildren, and spend time with these family members.

14. I am satisfied that the visa applicant does not intend to work, study or train during her time in Australia.  I accept she wishes to spend her time with her family. I accept her children will provide the financial support for all her needs.

15. I am satisfied that the visa applicant is married, and her husband will remain in Lebanon during her visit to Australia. I am satisfied the couple own property in Lebanon, including land and a house in Mechmech, and a house in Tripoli.  I am satisfied the visa applicant has a married daughter who resides in Lebanon, and one granddaughter.  I accept the visa applicant has two sons who reside in Lebanon.  Further I accept that one of these sons is getting married in June 2019.  I am satisfied that the obligation to be in Lebanon for her son’s wedding, and the wish to be back with her husband, and in her home and community with the family members who reside in Lebanon, are sufficient incentive for the visa applicant to genuinely intend to return to Lebanon before the expiration of her visa.

16. I have considered the country information in relation to any ongoing political unrest or security issues in Lebanon.  I have considered the visa applicant’s personal circumstances, including her economic security. I have considered the visa applicant’s evidence that she intends to comply with the conditions of the visa, and that she does not intend to remain in Australia after the expiration of her visa.

17. I am satisfied that this is a situation of a mother and grandmother who wishes to visit her family members in Australia, but who also has overriding obligations to other family members in Lebanon for which she intends to return.  For all these reasons, I am satisfied that the visa applicant intends to comply with the conditions to which the visitor visa may be subject.  I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In the Department decision record dated 21 November 2017, the delegate referred to and placed negative inference on the fact that one of the visa applicant’s sons came to Australia as the holder of a student visa and subsequently applied for a permanent change of his visa status on shore, and is currently the holder of a bridging visa.  No further information was provided by the Department on this issue.  A copy of the decision record was provided to the Tribunal by the review applicant.  In a written submission the review applicant’s representative submitted this issue was not relevant to the visa applicant’s personal circumstances.

19. I consider this issue is relevant, or potentially relevant, to the visa applicant’s personal circumstances to be considered in this review.  I accept the oral evidence of the review applicant and his wife that the son referred to in the decision record is not the review applicant, but a brother of the review applicant. I accept the brother was the holder of a student visa.  The student visa, for reasons that are not known to the Tribunal, was cancelled.  The Tribunal was advised the brother married a woman in Australia over three years ago, and applied for a partner visa.

20. I have considered this evidence, and I am not satisfied that it affects my assessment of the visa applicant’s intentions. I am not satisfied that one son’s uncertain visa status affects my analysis of the visa applicant’s evidence. I am satisfied the visa applicant genuinely intends to visit Australia temporarily, for the purpose of visiting her children and grandchildren.  I am satisfied the visa applicant genuinely intends to return to Lebanon before the expiration of the visa, to her husband, family, her community and properties, and to be at her son’s wedding in Lebanon in June.

21. 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

22. 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.

    Margie Bourke
    Member