Hanna (Migration)

[2022] AATA 4628

Hanna (Migration) [2022] AATA 4628 (24 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Charbel Mikhael Hanna 

VISA APPLICANT:  Ms Salma Roustom   

CASE NUMBER:  2208742

HOME AFFAIRS REFERENCE(S):          BCC2022/403874

MEMBER:Stephen Witts

DATE:24 November 2022

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 November 2022 at 10:26am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s previous compliant visits – family financial assistance in Australia – strong family connections to home country – willingness to provide a security bond – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 13 June 2022 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 22 February 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 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 the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant, Mr Hanna, appeared before the Tribunal on 24 November 2022 to give evidence and present arguments.

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

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 seeks the visa for the purposes of visiting Australia. 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)).

11. The Tribunal notes that there is no evidence before it in regard to a breach of any substantive visa held by either applicant.

12. According to the delegate’s decision record dated 13 June 2022 provided to the Tribunal by the applicant, the delegate made a decision that the applicant does not genuinely intend to stay in Australia temporarily taking into account the applicant’s immigration history and compliance with previous visas, and also the visa applicant’s personal circumstances, and her incentive to return to the country of residence, Lebanon.

13. According to the delegate it considered that the visa applicant has stated that she intends to visit family in Australia, that she is a housewife, that there is a lack of income stream evidence, and a consideration of the employment or economic incentive to return to her home country, including family members back in her home country, and made a decision that the visa applicant did not intend a genuine temporary visit.

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

15. In particular, the Tribunal notes a submission provided by the review applicant, the son of the visa applicant, stating that in the previous visa given to her mother in 2012 she did not overstay her visa and abided by all the necessary regulations, and that the economic circumstances and other issues back in his mother’s home country of Lebanon did not hamper her previous application for a tourist visa but that at that time the country was in a similar economic and social situation as it is during the current application.

16. It was also stated that his mother is 71 years old and has retired from work and that therefore it is irrelevant to consider whether the applicant demonstrates strong employment status. It was also stated that her family and son assist her financially for her stay in Australia and that he had sufficient funds to fund his mother’s stay in Australia.

17. It was also stated that his mother has a family incentive to return to her home country including four daughters, grandchildren and great-grandchildren, friends, and extended relatives and her home that she has lived in for over 40 years.

18. It was stated that his mother wants to come and see the children who she has not seen for 10 years and then go back to her home where she lives with majority of her family. It was stated that he, the review applicant, cannot go back to visit her in her home country and that he has business commitments in the construction industry, that his eldest son is studying his HSC, and that he does not want to disrupt his children’s study commitments. He stated that he is happy to pay some form of bond even though there is no evidence that she has ever overstayed her visa in 2012 during the ongoing economic and political crisis in her home country.

19. At the hearing the Tribunal had discussion with the review applicant regarding the application.

20. The review applicant stated that he first came to Australia in 2001 on a partner visa and married his wife in August 2002. He stated that his wife was born in Australia but is of Lebanese heritage and that her family live here. He stated that he worked in the construction industry for some years and that he has been running his own business for a number of years. He stated that he is still married and has three children who are 17,15 and 13 years old. He stated that back in his home country of Lebanon he has 4 sisters and between them they have 9 children. He stated that his father died in 2014 and that he last returned to his home country in 2019 by himself to visit family. He stated that other than his mother the only other member of the family to come to Australia was a nephew who came in 2017 on a visitor visa for a few weeks and then returned home. He stated that his mother visited him for a few months in 2012 and abided by the conditions of her visa and then returned home. He stated that at that time he had had to have a heart operation. He stated that his father didn’t come with his mother in 2012 because he was still working and that for most of their lives his parents owned and operated a family restaurant which they sold in 2012. He stated that she also came with his father to visit in 2003.

21. The Tribunal had a detailed discussion with applicant about his circumstances here in Australia and his mother’s circumstances in Lebanon noting that she did have a lifetime of employment in some capacity in the restaurant business and that she did own her own apartment which is in the immediate vicinity of the dwellings of her 4 daughters and the grandchildren. When asked by the Tribunal as to whether she in fact had an incentive to return to her home country in 2012 which she may not have now because her father died in 2014 he reiterated a number of the points made above that she has a real incentive to return home because although he and his brother and their wife and three children do live here in Australia, but that nevertheless she does have most of her family, children and grandchildren living in her immediate vicinity in her home country and that she wants to die in Lebanon  with her family around her and be buried next to her husband.

22. The Tribunal had a detailed discussion with the review applicant about all these matters noting that the Department had a realistic concern that once here in Australia in a strong family, domestic and financial position at her age that she might seek to find excuses to remain here permanently. The review applicant stated that that is not the case with them and that his mother actually does have significant reasons to return home and that he only wants her to stay for a short period of time anyway and that he recognises the importance of abiding by the laws and regulations of Australia noting that his mother has visited Australia before and has always returned and gave an assurance that she is a genuine visitor and that she would return home within the time line set by her visitor visa.

23. The Tribunal has considered the evidence provided very carefully and does appreciate that there is significant incentive for his mother who is from North Lebanon  which is particularly affected by an economic and social crisis but that at the same time his mother has visited before and has always returned and also that she does have significant incentive to return home via having most of her family, particularly her daughters and their families, residing in her home country. The Tribunal finds that this lends weight to the contention that the visa applicant if allowed to come here for a limited period of time as a visitor taking into account the evidence of statements made by her son, the review applicant, that she will return to her home country.

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.

    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.

    Stephen Witts
    Member