EL LAKISS (Migration)

[2022] AATA 2412

EL LAKISS (Migration) [2022] AATA 2412 (14 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Maya El Lakiss

VISA APPLICANT:  Mrs Amal Khedi

CASE NUMBER:  2201957

HOME AFFAIRS REFERENCE(S):          BCC2021/2169972

MEMBER:David Crawshay

DATE OF ORAL DECISION:  14 July 2022

DATE OF WRITTEN STATEMENT:         15 July 2022

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 criterion for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 15 July 2022 at 9:15am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – multiple compliant travel to other countries – no job and husband retired – house, land and savings – most family members in home country, one child in Australia and another in third country – general economic conditions – husband’s separate application – 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 6 February 2022 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 13 November 2021. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. The review application was made by the review applicant, who is the daughter of the visa applicant.

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 intended to stay temporarily in Australia for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 14 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from Mr Georges Estephan Lakkys, who is the visa applicant’s husband. Mr Lakkys is the subject of another visitor visa application. A decision in respect of him has been made separately.

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa 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 visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)). There is no evidence that the visa applicant has held a visa to travel to Australia. This matter is given no weight either way.

10. 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.

11. Based on the profile of the visa applicant, the Tribunal is satisfied that she is at low risk of working or engaging in study or training while in Australia. This matter is given some weight.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

13. The Tribunal has considered that the visa applicant has undertaken multiple trips to countries other than Lebanon, including some in Europe. In particular, it notes that she claims to have travelled to Belgium on four occasions, and evidence in the form of passport stamps confirms that she has travelled there multiple times. The consistent testimony of the parties is that these trips were to visit her daughter who lives there.

14. The Tribunal accepts this evidence and accepts that the visa applicant has undertaken travel to countries that offer similar incentives both economically and due to the presence of family and there is no evidence other than that she complied with the conditions of travel including that she returned within the validity of her visas. It gives this evidence substantial weight of a positive nature.

15. The Tribunal has considered that the visa applicant does not have a job and her husband is retired from his job. It has therefore considered that they do not have work obligations that would tie them to Lebanon. It accords some weight of an adverse nature to this evidence.

16. The Tribunal has considered any ownership of land and other assets by the visa applicant and her husband. In this regard, it notes claims made by the parties and by Mr Lakkys that the visa applicant and her husband own a house in Kour, Lebanon, as well as other properties. Two documents, both titled “title deed” were submitted to the delegate which purport to show that the visa applicant’s husband owns five parcels of land and her son owns another parcel over which she and her husband have been granted rights of exploitation. These documents substantiate some ownership of land, although they do not show that the visa applicant or her husband own a house as claimed. This evidence is given some positive weight by the Tribunal.

17. The Tribunal has considered the dire economic situation in Lebanon and in particular Northern Lebanon, which it put to the review applicant as a reason for not returning there at the end of any visitor visa period imposed on the visa applicant and her husband. She replied that her parents are financially well-off, being the owners of a house and other parcels of land (see above) and having considerable sums of money stored both in the bank and otherwise. She said that she sometimes remits money to her parents, but this is more in the way of gifts at Christmas and Easter.

18. The Tribunal notes that there is no documentary evidence to substantiate the claims of having significant sums of money. That said, it nonetheless accepts that the visa applicant and her husband live comfortably, her husband having worked for a multinational company (Holcim) for more than 40 years and having accrued superannuation during at least part of this time. It accords this evidence some weight as an incentive to return to Lebanon.

19. The Tribunal has lastly considered the location of the visa applicant’s family members. In this regard, the testimony of the parties is that the visa applicant has:

    ·one daughter, being the review applicant, and a grandchild who live in Australia;

    ·one daughter (who in turn has two sons and a daughter and is expecting a fourth child in a month’s time) and one son (who in turn has an infant daughter) who live in Lebanon; and

    ·one daughter (with a son and daughter) who lives in Belgium.

20. The Tribunal accepts based on the consistent testimony of the parties at hearing that the bulk of the visa applicant’s immediate family lives in Lebanon, as against one daughter in Australia and another in Belgium. Similarly, it accepts that most of her grandchildren live in Lebanon. It accepts that the presence of a majority of immediate family in Lebanon would act as an incentive for her to return at the end of any visitor visa period imposed. It also accepts that the imminent arrival of a further grandchild would offer a further incentive to return. The Tribunal gives this evidence significant and decisive weight in favour of the visa applicant returning.

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.

    David Crawshay
    Member