Habib (Migration)

[2023] AATA 1176

Habib (Migration) [2023] AATA 1176 (2 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rana Habib

VISA APPLICANT:  Mr Gerges Ramaz Habib

CASE NUMBER:  2302998

HOME AFFAIRS REFERENCE(S):          BCC2022/5631195

MEMBER:Stephen Witts

DATE:2 May 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 02 May 2023 at 4:16pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to depart or remain – travel for family wedding and reception – extended family in Australia and immediate and extended family, property, savings and long-term employment in home country – previous compliant travel by wife – 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 14 February 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 30 December 2022. 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 the delegate was not satisfied that the applicant intends a genuine temporary visit to Australia.

5. The review applicant, Ms Rana Habib, appeared before the Tribunal on 2 May 2023 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant Mr Gerges Habib and Ms Celestine Khalil, his wife

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

8. The review applicant was represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of a family visit to Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

12. 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)).

13. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

15. The Tribunal notes that the Tribunal has provided with a copy of the relevant delegate’s decision where it was stated that the visa applicant applied for a visitor sponsored family stream (FA 600) visa to visit Australia. The delegate stated that it considered whether the applicant intends to stay temporarily for this purpose and made a decision that it was not satisfied that the visa applicant intends a genuine temporary visit to Australia.

16. It was stated by the delegate that it considered such matters as the personal circumstances of the applicant that would encourage him to return to his usual country of residence Lebanon and other matters.

17. It was stated that the visa applicant declared that the purpose of his stay in Australia was to visit family and that the delegate considered the lack of travel history by the applicant. It also stated that it considered the applicant’s declared employment status as a driver and that a leave letter was provided but it nevertheless decided that it was not satisfied that the applicant’s employment circumstances would act as a strong incentive for the applicant to return home. It also stated that it considered the current political, security, and economic conditions in the visa applicant’s home country and decided that this would not encourage the applicant to return home.

18. The Tribunal notes that evidence was provided prior to the hearing by the applicants.

    Applicant submissions

19. The Tribunal now turns to the submissions provided prior to the hearing.

20. The Tribunal notes that a wedding reception invitation for the visa applicant was provided indicating that there is a wedding reception in Melbourne on 28 May 2023 for a relative of the applicants, in particular, the visa applicant’s nephew.

21. The Tribunal also notes that a statement was provided by the sponsor stating that her father, the visa applicant, has not travelled to Australia before and has no previous travel in the last five years to any other country.

22. The Tribunal notes that a grant of a visitor visa dated 22 March 2022 from the department was provided for Celestine Khalil, the wife of the visa applicant.

23. A letter dated 23 December 2022 was also provided from a parish priest who will be officiating the marriage of the applicants’ relations stating that he would like the visa applicant, the uncle of his nephew who is getting married, to be present at their wedding.

24. A letter was also provided from the groom at the wedding stating that his uncle will be a member of the wedding party for the wedding.

25. A deed of property in the visa applicant’s name for property held in Lebanon was provided.

26. A letter dated 27 December 2022 from a property development company was provided stating that the visa applicant is employed as a driver, paid a salary of US$1596 per month, and is owed recreational leave.

27. A copy of a register from Lebanon was provided bearing the names of various parties related to visa applicant including Celestine Khalil, and Rami, Rana, and Roy Habib.

28. Also included was national Social Security and family allowance material, and bank statements from the visa applicant’s home country, and a Commonwealth bank account in the name of the review applicant dated 3 March 2023 with a current account balance of approximately AU$36,000.

29. A submission from the review applicant was also provided dated 3 March 2023 where it was stated that she is lodging an application for merits review on behalf of her father who is currently living in Lebanon with his wife Celestine Khalil and two sons, one of which has a wife and three children. It was stated that she, the review applicant, is the only daughter.

30. It was stated that the visa applicant will not overstay his visa but will return home to be with his family and his job.

31. It was stated that the review applicant is married since 2019 and is the mother of three young boys aged three years, two years and one year. It was stated that she needs her parents to be with her and provide support to her young children and that she is a permanent resident and the holder of a partner visa.

32. It was stated that the visa applicant applied for a visitor visa to attend his nephew’s wedding on 28 May 2023 and that he intends to visit his daughter, nieces, nephews and cousins and extended family relatives that he has not seen for many years. It was stated that he will be staying with the review applicant.

33. It was also stated that in making its decision the Department did not consider the visa applicant’s personal circumstances such as his immediate family, his job and property ownership. It was acknowledged that he has never been to Australia but that his wife has travelled to Australia on two occasions to be with her daughter, and that she complied with all the conditions of her visa.

34. It was also stated that the visa applicant has been employed as a driver with the same company for 25 years, and that he commenced his job on 1 July 1998 and that his salary is a good one by Lebanese standards.

35. It was also stated that the review applicant has the means to provide financial and accommodation support for her father’s stay in Australia, and that he will be bringing $8000 US with him.

36. It was further stated that as well as never visiting Australia before the visa applicant has never visited any other country.

37. In summary it was stated that the visa applicant has a genuine intention to comply with the conditions of his visa will return to his home country, his family and his job, as did his wife before him.

38. The Tribunal also notes that it was provided with an updated submission on 6 March 2023 where it was reiterated that the visa applicant has been invited to participate in an event of special family significance in which he is directly concerned, that is, the wedding of his nephew on 28 May 2023, that he applied for a visitor visa on 30 December 2022 which, it was stated, was five months before the wedding and long enough for the event to allow for review by the Tribunal if the application was refused. It was also stated that he has been sponsored by his daughter who is a permanent resident and the holder of a subclass 801 partner visa.

    Hearing submissions

39. At the hearing the Tribunal had discussions with the applicants regarding the application.

40. The applicant stated that he was 56 years old, that he is working full-time and that he lives with his wife and one son and that he has another son who has three children in his home country of Lebanon. He provided evidence of his family circumstances, and his financial and employment circumstances, including his house and some apartments in the mountains that he owns. He stated that his wife works as a secretary in an office and that they have significant family in Lebanon including his seven brothers and two sisters and their families, and that he has one brother and his family in Australia.

41. He stated that his wife has travelled to Australia on two occasions to visit their daughter most recently in 2022 and that she has always returned within her visa period, and that she is staying back in their home country to look after family responsibilities including their son who lives with them and that he genuinely intends a short-term visit to visit his daughter and attended the wedding of his nephew.

42. The Tribunal has considered the evidence very carefully noting that although the applicant does lack international travel experience it is also the case that he has significant incentive to return to his home country including his wife and the rest of his family, as well as funds and assets back in his home country, and a job that he has worked in full-time for 25 years.

43. The Tribunal is satisfied that the visa applicant genuinely intends to stay in Australia temporarily to visit his daughter and family and attend the wedding as noted above.

44. 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

45. 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.

    Stephen Witts
    Member