Darwich (Migration)

[2023] AATA 2261

Darwich (Migration) [2023] AATA 2261 (14 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Darwich

VISA APPLICANT:  Mr Hassan Al Darwich

REPRESENTATIVE:  Mr Mohamed Al-Fadhli (MARN: 1799282)

CASE NUMBER:  2306279

HOME AFFAIRS REFERENCE(S):          BCC2023/2408483

MEMBER:Justin Meyer

DATE:14 July 2023

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 14 July 2023 at 3:43pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – travel to visit brother and attend niece’s wedding – employment, assets and personal funds – sponsor’s offer of bond – reception centre booked and applicant’s traditional role in ceremony – economic crisis in home country does not outweigh other factors – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.612, 600.231

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 3 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 19 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 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 because he was not considered a temporary entry to Australia.

5. The review applicant was represented in relation to the review. After the Tribunal received a submission and further evidence the Tribunal considered that a hearing was no longer required. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.

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 a family visit (visit his brother and attend his nieces wedding). This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. 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)).

10. There is no evidence of non-compliance with conditions of previously held visa.

11. 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.

12. There is no evidence of propensity not to comply with such conditions.

13. As was noted by the delegate, the applicant is a 45-year-old married Lebanese male residing in Mount Lebanon. The applicant requested a visa from 15 July to 15 October 2023, for Tourism/Family visit purposes. The applicant is requesting to visit his brother and attend his niece’s wedding in Australia.

14. The applicant has claimed employment at the Council for Development and Reconstruction. He included a document from that body saying that he earned the equivalent of AUD25,000 per annum.  The applicant has provided evidence of personal funds and ownership of assets in his home country of Lebanon in order to demonstrate significant economic ties and therefore an incentive to return to their home country.

15. To the Tribunal’s mind these may provide incentive to return. This is reinforced by his brother’s commitment to pay AUD30,000 in a security bond in the event of the applicant not returning in as promised.

16. There is evidence of a reception centre in Sydney having booked a wedding reception for this in August 2023, and a written declaration that the applicant is a Wali or person committing to take care of or be a guardian of his niece before and throughout the marriage.

17. Therefore I discern an intention to abide by the conditions of the visa and to stay temporarily in Australia for the purpose for which the visa is proposed to be granted.

18. I have taken into consideration the fact that Lebanon has been undergoing an economic crisis since mid to late 2019 and that the outlook remain negative. However this does not outweigh the other circumstances and they are not of such a nature that they would encourage the applicant to remain in Australia beyond the validity of any visa granted.

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.

    Justin Meyer
    Member