Handouch (Migration)

[2024] AATA 3848

Handouch (Migration) [2024] AATA 3848 (24 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mahmoud Handouch

VISA APPLICANT:  Ms Yamama El Haj Ahmad

CASE NUMBER:  2422468

HOME AFFAIRS REFERENCE(S):          BCC2024/3107196

MEMBER:Anne Grant

DATE:24 September 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 24 September 2024 at 1:49pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit husband – applicant has already applied for a partner visa – does not intend to apply for any other visa during her stay in Australia – supported (both financially and emotionally) by her Australian citizen husband – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 1 July 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 12 June 2024. 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 they were not satisfied that she genuinely intended to stay in Australia temporarily.   

5. The review applicant appeared before the Tribunal on 19 September 2024 by video using the Microsoft Teams application to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Lebanon who connected to the hearing by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting the sponsor  (her husband) and family.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. 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)).

10. The visa applicant has not previously visited Australia or held a visa to do so.  No significant weight can be given to this particular aspect of her migration history.  However, at hearing she gave evidence that she has visited both Türkiye and Qatar and complied with the laws of those countries, returning each time to Lebanon.  I accept this evidence and give it some weight as indicating that the visa applicant intends to return to Lebanon after visiting Australia.

11. The review applicant (and sponsor) is an Australian citizen.  The sponsor gave evidence that he has not previously sponsored  anyone, but his mother visited Australia in 2015 when one of his children was born and returned in accordance with the conditions of the visa.

12. 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.

13. The visa applicant confirmed that she does not intend to work or study during her stay.  She graduated as a nutritionist in 2021, and has also learned English at the American Centre in Tripoli. She provides advice about her specialty in her local village and has previously worked for an NGO, but is currently not working and is supported by the sponsor. She learned English to help when she joins her husband in Australia once her partner visa is granted. 

14. The visa applicant noted that she has already applied for a partner visa and does not intend to apply for any other visa during her stay in Australia.  She confirmed that she would comply with the conditions of the visa, including departing at the end of the permitted stay period.   The visa applicant observed that she wouldn’t do anything to endanger her partner visa application and so would be sure to comply with the conditions of the visa, including departing at the end of the permitted stay.   

15. It was noted that Lebanon has been experiencing years of economic crisis and political insecurity, including active conflict in the South.  Over the period of a few days before the hearing, reports of multiple explosions of pagers and other communication devices in Beirut and surrounding areas had caused multiple deaths and injuries, triggering a fear of an escalation of the border conflict.  The visa applicant acknowledged that the situation in Lebanon is ‘really bad’, but explained that this is actually a reason why she would comply with the terms of the visitor visa - it is her goal to settle in Australia when her partner visa is granted, leaving the insecurity and hardship of life in Lebanon behind.  With that goal in mind, she said she is prepared to endure some ‘short term’ hardship by returning to Lebanon and living there while her partner visa is decided, once the visitor visa term has ended.

16. The visa applicant gave evidence that she lives in a house owned by her husband.  There is no mortgage on the property, and he provides her with financial support, so she is economically secure, regardless of the external conditions in Lebanon.   She has a significant amount of US Dollars ($15,000) which she explained her husband has given her as a buffer against the financial and security crises that have bedevilled Lebanon for several years.  With her husband’s support she will be able to live safely and meet all her needs until the partner visa is granted, and she very much wants to protect and progress that application so she can join her husband, who she loves, in Australia. 

17. The visa applicant also expressed a desire to meet and get to know the sponsor’s children (aged 7 and 8). 

18. The visa applicant was eloquent and frank in giving her evidence.  I accept that evidence.

19. The sponsor explained that his children are still young and he has not yet told them about the marriage.  He doesn’t tell them when he travels overseas because they worry about him and that he will ‘leave them’.  The children live with him each week from 5pm Friday until Sunday.  The sponsor stated that he wants his wife to get to know them face to face first, rather than over the phone or video.  The sponsor described his love for his wife and how he hopes the partner visa can be granted as soon as possible, though he acknowledged it might take some years – and how much he wants his wife and his children to get to know one another.  

20. The sponsor gave evidence that he is aware that if the applicant were to overstay her visitor visa, that conduct may impact negatively on her partner visa application and would also make it more difficult for him to sponsor any other family to visit Australia in the future.  I give this some weight as suggesting that the parties are aware of the requirement for the visa applicant to depart Australia in accordance with the terms of the visa and that she would do so.   I accept the sponsor’s evidence.

21. I have also considered all other relevant matters (cl 600.211(c)). I have had regard to the various matters outlined in Departmental policy (where applicable) which must be considered, namely:

    ·     an applicant's employment and financial circumstances;

    ·     the economic situation in an applicant's home country or usual country of residence (such as employment opportunities, unemployment rates, salary rates, and living conditions);

    ·     social unrest or conflict in an applicant's home country or usual country of residence;

    ·     an applicant's incentive to return to their home country or usual country of residence (noting that the circumstances of an applicant's home country or usual country of residence can only be considered in conjunction with an applicant's personal circumstances);

    ·     an applicant's international travel history, in particular compliant travel to other developed countries;

    ·     an applicant's ties to Australia and incentives to remain in Australia;

    ·     the credibility and consistency of the information provided by an applicant;

    ·     offers of support provided by family and friends in Australia which may substantiate reasons for travel;

    ·     whether there are any compelling or compassionate reasons to travel (particularly if the decision may have adverse consequences on an Australian citizen or permanent resident);

    ·     whether an applicant holds another visa, intends to lodge another visa application, or has already lodged an application for another visa, refer to 3.10. Complex Visitor Visa Applications;

    ·     the purpose of an applicant's visit to Australia, including the proposed duration of stay and intended activities in Australia; and

    ·     the total length of time an applicant has already spent in Australia on temporary visas and whether an applicant genuinely intends to stay temporarily in Australia.

22. The security and economic situation in Lebanon is complex. Country information reflects that not only is the country experiencing an ongoing economic crisis leading to high levels of unemployment, shortages of various goods and services and an unreliable currency and financial sector, but conflict with neighbours in the south contribute to a volatile security situation. In the days prior to the hearing, multiple explosions of communications devices throughout the country had heightened instability and insecurity.  This was acknowledged by the parties. 

23. As noted above, the visa applicant confirmed that the situation is difficult and frankly unsafe, not just in the south but throughout the country.  However she is in her home and is financially supported by her husband so she has reliable accommodation and economically she is secure. The visa applicant said that she understood why the volatile country situation might be considered a reason why a visitor might be tempted to overstay the visa but as noted, to her, it was actually a reason why she would make sure that she complied with the terms of any visitor visa; because she really wants to leave that situation for good and join her husband in Australia when her partner visa is granted and would not do anything to put that visa application at risk. She said she is prepared to put up with the situation in Lebanon while her partner visa is considered, seeing it as a short-term hardship to ensure her long-term goal of being with her husband.

24. I am satisfied that the visa applicant has financial security and a home in Pakistan and is also supported (both financially and emotionally) by her Australian citizen husband.   She has no other family in Australia.  She has several siblings and parents living in Lebanon; but given her frank admission that she plans to leave her family in Lebanon once her partner visa is granted and move to Australia, I do not give her family significant weight as a factor which might encourage her to return to Lebanon at the end of a permitted stay. 

25. The review applicant has provided information and evidence demonstrating that he has the means to support the visa applicant in Lebanon and whilst she is in Australia and during any travel to and from the country.  He has indicated that he would be prepared to pay a security deposit because he is confident that she will comply with the terms of any visa.  The parties want the visa applicant to meet and bond with her stepchildren, and I consider this to be a compelling and compassionate reason for her visit to Australia pending the partner visa decision.

26. In the circumstances of this case, I find that the general security and economic circumstances of Lebanon do provide the visa applicant with a significant incentive to remain in Australia beyond the term of a visitor visa, if granted.  However, having had the opportunity to take direct evidence from the visa applicant, I am satisfied that comparatively speaking, her own situation in Lebanon is financially and practically secure enough that she intends to and is able to safely return to Lebanon after her visit and stay there until her partner visa is granted (subject of course to any later permitted visits to Australia).   

27. As discussed at hearing, the visa applicant and sponsor are both aware that failure to comply with the terms of a visa might negatively impact on the consideration of her partner visa application, and on the sponsor’s capacity to sponsor other family members to visit Australia.   

28. Although the visa applicant has applied for a residence visa in Australia and therefore can reasonably be taken to intend to stay in Australia permanently, her capacity to stay is dependent on the assessment and grant of the partner visa and is a future intent.  That is, as noted in Departmental policy, the fact that an applicant hopes and plans to settle in Australia in the future does not preclude them from having a genuine intention to visit temporarily whilst other visa applications are being considered, particularly given long processing times for offshore partner visas. 

29. I also note Departmental Policy at 3.10.3 (referring to Complex Visitor Visa Applications) referring to Partners of Australian citizens or permanent residents which states:

    “Subclass 600 visa applicants who have lodged a Partner visa application outside Australia and intend to temporarily visit Australia during the processing of the application can generally be considered more flexibly. A Subclass 600 visa with a standard visa validity period is usually acceptable for these purposes”.

30. Having regard to the various required considerations, the evidence given by the visa applicant and sponsor, and departmental policy, 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

31. 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.

    Anne Grant
    Member