Elawik (Migration)

[2024] AATA 403

Elawik (Migration) [2024] AATA 403 (23 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Manal Elawik

VISA APPLICANT:  Miss Mariam Al Awik

REPRESENTATIVE:  Ms Joumana El Halwe (MARN: 1388161)

CASE NUMBER:  2400617

HOME AFFAIRS REFERENCE(S):          BCC2023/7509438

MEMBER:Alison Murphy

DATE:23 February 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 23 February 2024 at 8:48am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – support and care for review applicant and children during child’s surgery – genuine temporary entrant and compliance with conditions – young unmarried woman living with parents and brothers and not working, with two sisters in Australia – political, security and economic conditions – family’s location and relatively unaffected – review applicant’s sufficient funds – medical evidence provided – previous compliant sponsorships and future intentions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, conditions 8101, 8201

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 11 January 2024 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 24 December 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 Tourist 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 she did not genuinely intend to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 22 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Ms Mariam Al Awik, by telephone from Lebanon. 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.

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 is a 24-year-old woman from Lebanon. She seeks the visa for the purposes of visiting the review applicant (who is her sister) who has lived in Australia since 2011. The review applicant requires support and care for two of her three young children at a time when the youngest child is scheduled to undergo urgent heart and other surgery. 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)). In this case the applicant has not been granted a visa or otherwise travelled to Australia in the past.

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 600.611 (3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

12. Both the review applicant and the visa applicant gave evidence that the visa applicant has no intention of working or studying in Australia. Rather their evidence is that she seeks to travel to Australia only for the purpose of visiting the review applicant and caring for her children while the youngest daughter undergoes surgery for a serious congenital heart condition. There is no evidence before the Tribunal that would indicate otherwise, noting the applicants’ father visited Australia in 2019 and returned home at the end of his visa period. The Tribunal accepts the evidence of the review applicant to the effect that she wishes in the future to sponsor the visas of other family members and that she is aware that may not be possible if her sister breaches the conditions of her visa.

13. The Tribunal has also considered all other relevant matters (cl 600.211(c). As noted in the delegate’s decision, the delegate considered that the visa applicant may seek to remain in Australia permanently if she is granted the visa. In making that assessment the delegate considered that she had not demonstrated strong financial or economic ties to Lebanon and that she did not have dependents in that country. The delegate was also concerned about the economic and security situation in Lebanon, considering they may encourage the visa applicant to remain in Australia.

14. The visa applicant acknowledges that she does not have strong financial or employment ties to Lebanon, arguing that as an unmarried young woman she is supported by her father and brothers as is common in that culture. She and her five brothers live with their parents and the applicant helps her mother with the household. The family owns their house as evidenced by the land title deed submitted to the Tribunal and has sufficient income from the employment of the father and brothers to live comfortably. The review applicant will be responsible for the visa applicant’s costs while she is in Australia and she has submitted a bank statement indicating that she has sufficient funds to do so. On the evidence before it the Tribunal is satisfied the review applicant has sufficient funds to support the visa applicant’s travel to Australia and that the visa applicant has a home to return to in Tripoli.

15. While the visa applicant has family ties in Australia being the review applicant and one other sister, the majority of her family including her parents, five brothers and four other sisters remain in Tripoli. The Tribunal considers that the visa applicant’s family circumstances provide some incentive to return to Lebanon at the end of the visa period.

16. At hearing I discussed with the applicants DFAT’s advice that Lebanon has experienced a severe economic crisis leading to significant political instability. The security situation is also considered to be uncertain given conflict in neighbouring Syria, a maritime dispute with Israel and more recently the conflict between Israel and Gaza which has caused DFAT to issue a do not travel alert for Lebanon.[1] The review applicant and the visa applicant both gave evidence that their family was relatively unaffected by the economic crisis, given that they owned their home and the male family members had work. They each stated that the security problems in Lebanon were focused on the south of the country while their family lives in the north, well away from the conflict.

    [1] DFAT DFAT Country Information Report Lebanon 26 June 2023; Lebanon Travel Advice & Safety | Smartraveller

17. The Tribunal has also considered the visa applicant’s need to travel, which is to provide care and support to the review applicant and her children while the review applicant’s youngest daughter undergoes heart surgery and other medical treatment. The review applicant gave evidence that her only relative in Australia, another sister also in Melbourne, can provide only limited support during this time because she is caring for three children of her own. In this regard the Tribunal notes the significant amount of medical material provided to the department and the Tribunal about the child’s medical conditions and upcoming surgeries and the Tribunal is satisfied that there are compelling and compassionate reasons why the visa should be granted.

18. In view of all of the available evidence, the Tribunal is satisfied that the applicant is a 24-year-old woman who wishes to travel to Australia for a short period of time to visit her sister and her sister’s children and provide them with much needed support while one of those children undergoes a series of surgeries. She will be financially supported and accommodated by the review applicant, who has sponsored other family members to visit Australia in the past and intends to do so in the future. She leaves behind her parents and nine of her 11 siblings and the Tribunal is satisfied she has real and significant incentives to return to Lebanon at the end of the visa period. There are compelling reasons for the visa applicant to travel to Australia and a decision to refuse her the visa would have adverse consequences for the review applicant and her children, all of whom are permanent residents of Australia.

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.

    Alison Murphy
    Member