Hadchity (Migration)

[2024] AATA 667

Hadchity (Migration) [2024] AATA 667 (21 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Moura Hadchity

VISA APPLICANT:  Miss Jean Dark Hadchity

CASE NUMBER:  2320824

HOME AFFAIRS REFERENCE(S):          BCC2023/6726599

MEMBER:Tania Flood

DATE:21 March 2024

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 21 March 2024 at 9:56am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – participation in the review applicant’s wedding – financial resources – stable full-time employment – emotional support – family commitments in home country – offer to provide a security bond – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 December 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 21 November 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 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 visa was refused on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that she genuinely intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 20 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   Background

7. The visa applicant applied for a Visitor visa on 21 November 2023.  According to information contained in the application for the visa the visa applicant is a twenty-three-year-old Lebanese citizen.  She is single and resides in Bacharre, North Lebanon.    She indicated she would like to stay in Australia for up to three months to act as maid of honour at her sister’s wedding and to spend some time visiting with her family.   The visa applicant indicated she is employed as a customer service representative at Le Notre Hotel in Lebanon.  She will self-fund her travel to Australia from personal savings. 

8. The following evidence was provided to the Department in support of the application:

   -Bank statements of the review applicant and her fiancé.

   -Proof of the review applicant’s wedding arrangements.

   -A statement from the review applicant’s fiancé.

   -Medical certificate in respect of the visa applicant’s brother indicating he has chronic renal failure requiring constant treatment.

   -Confirmation of the visa applicant’s employment at Le Notre Ski Resort.

   -Family Extract of Civil Registration.

   -A statement from the visa applicant.

   -A statement from the review applicant.

   -A statement from the review and visa applicant’s mother.

   -Proof of Australian citizenship of the review applicant.

   -Divorce Order of the review applicant.

   -Birth Certificate of the review applicant.

   -Various family photographs.

   -Review and visa applicant’s passport pages.

   Evidence before the Tribunal

9. The review applicant resubmitted the statements previously provided to the Department by herself, her fiancé, the visa applicant and the visa applicant’s mother.   She also attached proof of her wedding date of 1 June 2024.

10. The review and visa applicants appeared before the Tribunal by telephone and provided credible and consistent evidence which is summarised and referred to in the findings below.

    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 family. 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)).

14. The review applicant first arrived in Australia on 30 March 2008 holding a Partner Provisional Visa.  She was subsequently granted permanent residency and is now an Australian citizen.

15. The visa applicant has never entered Australia.

16. 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.

17. The Tribunal found the review and visa applicants to be credible witnesses.  Based on their oral testimony and the supporting documentation provided the Tribunal is satisfied the visa applicant is in stable full-time employment and that despite her modest income she has some personal savings sufficient to cover the cost of her stay in Australia.  Additionally, the review applicant’s fiancé has given an undertaking to assist her financially during her stay should the need arise.  The evidence provided satisfies the Tribunal that he has the means to do so.  The Tribunal is satisfied the visa applicant will not and has no need to work in Australia if she is granted a Visitor visa.  The visa applicant is intending to visit Australia to act as the maid of honour at her sister’s wedding and to spend time with her and her children.  There is nothing to indicate from the evidence before the Tribunal that she intends to engage in study or training in Australia if she is granted a Visitor visa.  The Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 if she is granted the visa.

18. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia.

19. The Tribunal acknowledges that Lebanon is suffering through a severe economic and political crisis and that those conditions could arguably induce the visa applicant to remain in Australia.  However, the evidence before the Tribunal indicates that the visa applicant has stable full-time employment.  The Tribunal is satisfied that it is her intention to return to her position after a short stay in Australia.  She has produced evidence from her employer which indicates she will be granted three months leave with the ability to resume her position on return to Lebanon.

20. Despite that the visa applicant’s earnings are relatively modest she lives in the family home with her mother and brother who is also employed in the armed forces and provides financial assistance to the household.  Despite the prevailing economic difficulties in Lebanon the Tribunal is persuaded that the visa applicant’s economic circumstances are relatively stable and will not cause her to overstay or seek to remain permanently in Australia.   

21. The Tribunal acknowledges that the review and visa applicants appear to enjoy a very close relationship and that the review applicant, having suffered through a difficult first marriage, the sudden death of their father and the recent death of their young brother, would clearly benefit from the emotional support her sister could provide if she remained in Australia.  However, based on the available evidence, the visa applicant is the only remaining daughter living with their mother who reportedly has a heart condition.  During the hearing the visa applicant persuaded the Tribunal that she would not abandon her responsibility to support her mother by remaining in Australia.  Additionally, the available evidence indicates the visa applicant has three other siblings, a grandmother, numerous aunts and uncles and cousins living in close proximity to her.  The Tribunal is satisfied that this large extended family outweighs the visa applicant’s family ties in Australia and will be a strong incentive for her to return to Lebanon.

22. The review applicant testified that her father was granted a Visitor visa to enter Australia but sadly he passed away just prior to his intended travel date.  She stated she has one brother residing in Australia and the Department’s records show that he was granted a Partner visa in 2019.  The review applicant stated at hearing that he and his wife met in Australia but after marriage returned to live in Lebanon for about three years before deciding to return to live in Australia.  During the hearing the visa applicant stated that she remains single and is not intending to marry in Australia.  The review applicant indicated that it is her wish that her mother might also visit her in Australia in future and the Tribunal is satisfied she will not support any erosion of the family migration history by encouraging non-compliance with visa conditions by the visa applicant.

23. The Tribunal has also placed weight on the review applicant’s willingness to provide a security bond in order to facilitate the grant of the visa. 

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

25. The Tribunal is satisfied that preparations are well underway for the review applicant’s marriage on 1 June 2024 and that the visa applicant is to be the maid of honour at the wedding.  The Tribunal is satisfied her planned visit to Australia is to support her sister at her wedding and to spend time visiting her sister, her new husband and her children.  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

26. 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.

    Tania Flood
    Member