El Massri (Migration)

[2019] AATA 6765

El Massri (Migration) [2019] AATA 6765 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Aida El Massri

VISA APPLICANT:  Mr Ibrahim El Masri

CASE NUMBER:  1934471

HOME AFFAIRS REFERENCE(S):          BCC2019/5739864

MEMBER:Jason Pennell

DATE:20 December 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 20 December 2019 at 1.03pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – 40 day morning period after applicant’s mother’s death – previous compliant visits to Australia – secure employment in Lebanon – most family members remain in Lebanon – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 26 November 2019 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 13 November 2019. 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 applicant did not meet the criteria for the grant of a Visitor (Class FA) Visitor (subclass 600) visa.

5.    The review applicant appeared before the Tribunal on 20 December 2019 at 11.00am to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ibrahim El Masri. 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 her registered migration agent.

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. Clause 600.211 of Schedule 2 of the Migrations regulations states:

‘The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

(a)  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; and

(b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

(c)  any other relevant matter.’

1. Therefore, 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)).

2. In the present case, the visa applicant seeks the visa for the purposes of visiting his sisters and marking the fortieth day after his mother’s death with family and friends. The purposes for which a visa in the Tourist stream may be granted are detailed in cl.600.221 and cl.600.222 Schedule 2 of the Migrations Regulations.

3. Relevantly, cl 600.221 provides that:  

   ‘The applicant intends to visit Australia, or remain in Australia:

   (a)  to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or

   (b)  for any other purpose that is not related to business or medical treatment.’.

4. The Tribunal notes that the applicant has travelled to Australia on three previous occasions in 2005, 2008 and 2010. On each occasion the applicant returned to Lebanon in accordance with his visa conditions. The visa applicant provided copies of his previous passports indicating that he had previously travelled to Australia and returned to Lebanon in confirmation of his oral evidence.

5. The Visa applicant evidence was that his father passed away in or about 2010 and that his mother had passed away on 20 November 2019. He stated that he has three brothers living in Lebanon and two sisters living in Australia. His brothers are all married and have children. He stated that he had originally wanted to travel to Australia to visit him mother who was terminally ill. He had booked a flight to travel to Australia on 25 November 2019. However, as a result of his visa being refused he had not been able to see his mother prior to her passing. He states that his sole reason for travelling to Australia was to be with his sisters for the purposes of morning their mother’s death at the end of the 40 day morning period on 30 December 2019.

6. The visa applicants evidence was to the Tribunal was that he was employed as a supervisor by a transport company known as Kamal El Kheir. He stated that he had been employed by the company for a period of eight years. His evidence was that he had been employed by the company for a period of eight years. The applicant’s evidence was that he could only stay in Australia for approximately one month due to his commitments at work.

7. 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.

8. The visa applicant confirmed to the Tribunal that his sole reason for travelling to Australia was to be with his sisters for the purposes of morning their mother’s death at the end of the 40 day morning period after the date of her death. He stated that he had no intention of breaching any of the conditions of his visa. He stated that he had a comfortable life in Lebanon and confirmed that that he was not subjected to any form of persecution in Lebanon or that he had been threatened in any manner. He stated that if he wanted to life in Australia he would have made application for an appropriate for him to be able to live permanently in Australia.

9. Therefore, based on the applicants own evidence the Tribunal is satisfied that the applicant will comply with conditions 8101, 8201, 8503 and 8531.  

10. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has considered the economic, political and security situation in Lebanon. It is well documented that Lebanon has suffered political and civil unrest over many years and that the situation remains unpredictable. The Tribunal recognises that it is not uncommon for Lebanese’s visitors to overstay their visa or change their status after their arrival. However, the applicant’s evidence in this case was that he had a good and comfortable life in Lebanon and that that he does not fear any harm upon his return.

11. In addition the Tribunal recognises that the applicant does have family links in Australia which may constitute an incentive for him not to return to Lebanon, the Tribunal notes that he equally also has family ties in Lebanon. While it’s possible the applicant may overstay his visa due to his family ties in Australia, there is no evidence that would necessarily lea to this conclusion. The applicant has previous complied with his visa condition on previous visits to Australia, is engaged in regular employment in Lebanon, states that he hold no fear of persecution or harm in Lebanon and that he has significant family ties in Lebanon being three brothers and their families. 

12. 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

1. 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.

Jason Pennell
Senior Member