HABIB (Migration)

[2018] AATA 1416

HABIB (Migration) [2018] AATA 1416 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Maren Fahd HABIB

VISA APPLICANT:  Mr Fredy HABIB

CASE NUMBER:  1721895

DIBP REFERENCE(S):  BCC2017/2651892

MEMBER:Linda Holub

DATE:26 April 2018

PLACE OF DECISION:  Sydney

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 26 April 2018 at 5:20pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Whether the applicant is a genuine temporary entrant – Visa applicant – Plans to visit extended family –Never travelled to Australia – Family members have visited Australia and complied with visa conditions –Visa applicant is a non-English speaker – Review applicant will fund the trip to Australia – Needs to return to Lebanon to finish schooling

LEGISLATION
Migration Act 1958 s 65

Migration Regulations 1994 Schedule 2 cls 600.211, 600.612 Schedule 8 Conditions 8531, 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 Immigration on 25 August 2017 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 24 July 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 5 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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.

BACKGROUND

1. The review applicant was born in Lebanon in March 1971 and first came to Australia in March 2002 on a Temporary Work (Skilled) visa as the spouse of the visa holder.  She became an Australian citizen in September 2011.  She has three adult children and a teenage daughter.  Two of her children are married and the younger two live at home together with her and her husband.

2. The visa applicant is the nephew of the review applicant – he brother’s son.  He is currently 19 years of age and is a school student.  He is a citizen of Lebanon. 

10) The review applicant’s husband is a builder and owns a number of companies. She stated that she is not involved in the business but that the business is very successful. After the hearing the review applicant provided a copy of her husband’s bank account which shows a balance of $104, 000 in mid April.  Other written evidence was provided in relation to the business of the review applicant’s husband including a detailed profit and loss statement for the year ending June 2017. The statement indicates that the profit earned by one of his company was $586,000 for that financial year. At hearing the review applicant explained that the business and the bank accounts are all held in her husband’s name.

CONSIDERATION OF CLAIMS AND EVIDENCE

11) 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.

12) In the present case, the visa applicant seeks the visa for the purposes of visiting his extended family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

13) 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)).  The visa applicant has not previously travelled to Australia.

14) The review applicant’s sister was granted a Visitor visa in February 2017. Her brother has travelled to Australia on a number of occasions including in 2005, 2008 and arrived for a third visit in April 2018. Her father came to Australia in 2006 and in 2013. Another of the review applicant’s sisters came to Australia in 2008. The Departmental movement records confirm that these members of her family have all complied with their visa conditions.

15) 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.

16) The review applicant stated that she and her husband will pay for the visa applicant’s airfare and his living expenses.  He will stay with her.  She explained that when she and her husband were in Lebanon recently, the visa applicant was their guide and very hospitable.  She said she has ample room in their house to accommodate him and has already prepared his room.  She stated that it is customary that she and her husband would provide that sort of hospitality to family members.  The review applicant stated that she has a large extended family in Australia and they are all keen for her nephew to visit. The visa applicant confirmed that he would stay with his aunt and uncle but stated that he thought that his father would like to pay for the airfare.

17) The review applicant stated that the visa applicant has no intention of working or studying or undertaking any training in Australia.  There is nothing in the evidence before the Tribunal which suggests that the applicant would seek to work or study during his proposed visit.  The Tribunal put significant weight on the fact that he does not speak English.  The Tribunal is satisfied he will comply with conditions 8101 and 8201.

18) Condition 8503 refers to entitlement and does not require compliance.

19) The review applicant stated that the incentives for the visa applicant to return to Lebanon are his parents, sibling and his studies.  At hearing the Tribunal discussed with the review and the visa applicants continued schooling and studies.  Following the hearing, evidence was provided that the visa applicant still has a year of studies to complete before obtaining his high school final results.  The review applicant also referred to the unblemished family history of coming to Australia and that it is important for her and her husband that the family can continue to travel easily.  She stated that they would not jeopardise that.

20) Both of the visa and review applicants stated that the visa applicant has not experienced any problems Lebanon as a result of the political/security situation or because of his religion or ethnicity.

21) With regard to condition 8531, the Tribunal put significant weight on the fact that there has has been extensive travel by family members to Australia and the migration history of the family has been positive with compliance with conditions of the visas.

. FINDINGS

22) Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for up to 3 months for the purpose of visiting his extended family.  The Tribunal accepts that that the review applicant is prepared and able to pay the costs of the visa applicant’s airfare and for the day-to-day expenses and that he will stay with the review applicant.

23) While the visa applicant’s incentives to return to Lebanon are very limited, the Tribunal has had regard to the fact his own nuclear family is in Lebanon and that it is important that he complete high school.  The Tribunal is also cognisant of the fact that each applicant’s circumstances and motivations are different, but taking into account all the circumstances and the family’s positive migration history, overall the Tribunal is satisfied that the visa applicant will not remain in Australia after the end of his permitted stay. 

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

25) 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.

26) For the above reasons the Tribunal is not 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 not met.

DECISION

27) 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.

Linda Holub
Member