El Khaled (Migration)

[2024] AATA 3080

El Khaled  (Migration) [2024] AATA 3080 (24 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Dima Ahmad  El Khaled

VISA APPLICANT:  Mr Maher El Khaled

REPRESENTATIVE:  Mrs Mirvat  El dehaibi (MARN: 1281889)

CASE NUMBER:  2306536

HOME AFFAIRS REFERENCE(S):          PNJ

MEMBER:Anne Grant

DATE:24 July 2024

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 24 July 2024 at 10:02am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family – employment and financial circumstances – significantly greater family incentives to return to Lebanon – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 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 1 March 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 January 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 they were not satisfied that the visa applicant genuinely intended to stay temporarily in Australia, having regard to the economic and security situation in Lebanon.   

5. The review applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone.  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. 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 his sister. 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 visa applicant previously visited Australia for approximately three months in 2009.There is nothing on the departmental file to suggest that he failed to comply with the conditions of his last visa.  I give this aspect some weight in favour of the applicant.  I note the delegate considered that it should not be given much weight because the last visit was so long ago, and the economic and security conditions in Lebanon have changed significantly.  However, where a visa applicant has a compliant history, I consider regard must be had to that history and so I give it some weight in favour of the applicant’s intention to comply with the conditions of any visa, if granted. 

12. The visa applicant has travelled extensively to and from Turkey as part of his business.  I accept his evidence that he has always complied with the conditions of his visas, wherever he has travelled.  He stated that he has no intention of leaving Lebanon permanently. 

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 visa applicant confirmed that he has no intention or desire to work or study in Australia, or to apply for any other visa.  He confirmed the information in the submissions before the tribunal, namely that when he applied for the visa, his sister was experiencing serious family violence related difficulties and had separated from her husband. He wanted at that time to come and comfort her, and help her to get re-established apart from her husband.  At the time of applying for the visa, the applicant and sponsor had provided support letters from family violence counsellors suggesting that the sponsor would greatly benefit from having some family support at that time.  I accept that his presence in Australia would have been a significant comfort for the sponsor at a very difficult time in her life.    

15. At hearing, and in submissions sent in prior to hearing, the parties confirmed that the sponsor lived separate to her husband for a year but that they have since reconciled. They did not reconcile until after the family violence order had expired and he had signed an undertaking not to perpetrate family violence again. They each underwent counselling, and so far, according to the sponsor, things are going well.  The visa applicant said that he wants to visit his sister to support her and satisfy himself that she is ok after this ordeal.  He knows her husband, and also wants to remind him that the sponsor has supportive family behind her and that he should treat her well. 

16. I asked the visa applicant if there was any ongoing animosity between himself and his brother-in-law – namely, was there any reason why I should be concerned about possible confrontations given his brother in law’s conduct in the past.  The visa applicant responded that he was very worried and angry at the time, but matters have been resolved since then, and they have put it behind them.  Because his sister and her husband have reconciled, there is no ongoing animosity, and he has no desire or intention to confront his brother-in-law.  He just wants to ensure that his sister and her husband are ok and that he is treating her well.      

17. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The visa applicant has ongoing employment as a manager of a café in Tripoli, where he has worked since 2016. His bank statements showed regular salary income until June of last year, and when I asked generally about his pay, he volunteered that because of the banking shutdowns and problems in Lebanon over the past year, there had been a change, and last year he started to get paid cash in US dollars rather than by direct deposits.  He gets paid monthly an amount of $1500 USD.  The visa applicant has also provided evidence that he has savings of $24,000 (US), and that he owns an apartment in which he and his family live and also an investment property, (residential). It was noted that many Tripoli properties had been damaged during recent earthquakes and the applicant agreed, but noted that he was lucky because his properties were relatively new and so they are both fine.  The visa applicant said that his rental income is currently less than previously, not because of damage to the properties, but due to the economic crisis.  His rental in the past was $350US per month, paid in cash, but now it is only $100US.  The visa applicant freely volunteered the information about these changes in his financial circumstances and I accept his evidence.  I accept that the visa applicant has ongoing employment and significant resources, and is financially stable in Lebanon despite the ongoing economic crisis in the country.

18. The visa applicant has no other family, apart from the sponsor, in Australia.  In Lebanon, he has his wife and children as well as his elderly parents who rely on him for care and support.  He also has several brothers and sisters and their families in Lebanon.  I consider that the visa applicant has significantly greater family incentives to return to Lebanon than he has to remain in Australia.  I note that in a written submission, the parties also stated a willingness to provide a security deposit and I give this willingness some weight as indicating that the visa applicant intends to and will comply with the visa, particularly given the sponsor’s limited financial means. I also note that the parties were aware that, in the event that the visa applicant failed to comply with the terms of the visa, the sponsor’s capacity to sponsor other members of the family in future would potentially be limited.  I consider that, given the sponsor’s isolation from her family in Australia, the visa applicant would take every step he can to ensure that he and other family in Lebanon can respond as quickly as possible in future to her need for support, particularly given their frustration at his not being able to come quickly in 2023 when she was in crisis, and how long this current process has taken. I give this some weight as suggesting that the visa applicant would comply with the conditions of the visa, and intends to do so. 

19. I have had regard to the current economic and security situation in Lebanon.  I have carefully considered the information before me, including the submissions of the representative, supporting documents and the evidence of the visa applicant and sponsor as discussed above.  I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and find 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.

    Anne Grant
    Member