Hassan (Migration)

[2023] AATA 4739

Hassan (Migration) [2023] AATA 4739 (6 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mayssa Hassan

VISA APPLICANT:  Mr Mahmoud Hassan

REPRESENTATIVE:  Ms Latifa Al-Haouli (MARN: 1175724)

CASE NUMBER:  2311188

HOME AFFAIRS REFERENCE(S):          BCC2023/818129

MEMBER:Nicole Burns

DATE:6 December 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 06 December 2023 at 5:19pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – substantial compliance with previously held visa – intention to comply with visa conditions – other relevant matters – limited economic circumstances in New Zealand – strong family ties in Australia – 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 22 May 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 13 May 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211.

5. The review applicant – who is the visa applicant’s daughter - was represented in relation to the review.  The representative provided a comprehensive submission to the Tribunal on review and supporting documents (set out in an attachment). On this basis the Tribunal was able to make a decision on the material before it without the need for a hearing, satisfied the visa applicant meets the criteria in dispute, for reasons discussed further below. 

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 his daughter and grandchildren. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. The visa applicant plans to visit Australia with his wife, whose application for a visitor visa made at the same time was also refused.  She has sought a review of that decision, which is being considered separately, by the same Member.[1]

   [1] AAT Number 2307867

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)). It does not appear that the visa applicant has travelled to Australia before and therefore this sub clause does not apply in his case.

11. 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.

12. In doing so the Tribunal has considered factors that may act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to New Zealand.

13. The visa applicant is a 58-year-old married man originally from Lebanon who holds permanent residency in New Zealand where he presently resides with his wife, three children, and three grandchildren.  Evidence has been provided to the Tribunal (and Department) showing his New Zealand permanent residency status and to the Tribunal indicating that he has applied for New Zealand citizenship, which is pending.

14. The delegate was not satisfied the visa applicant genuinely intended to stay temporarily in Australia for several reasons including due to his limited economic circumstances in New Zealand, and strong family ties in Australia.

15. In her submission to the Tribunal the representative notes the visa applicant plans to visit Australia to meet his newest grandchild and help care for the review applicant’s four older children as the review applicant is experiencing post-natal depression and has been referred to a mother and baby psychiatric unit.  It is submitted the review applicant is divorced and her ex-husband was violent towards her.  She has limited support in Australia.  Evidence has been provided including letters from the review applicant’s treating psychiatrist, social workers, the Perinatal Mental Health unit, Mercy Hospital, the Family Court and Child Protection and the Tribunal accepts the submission in this regard.  It considers there are compelling and urgent reasons for the visa applicant (and his wife) to visit Australia to assist their daughter and her children, until she has stabilised.

16. It is submitted that after the review applicant has received the necessary support, the visa applicant (and his wife) will return to New Zealand where they are permanent residents and reside with their three other children and three grandchildren.  Further, one of their daughters there is pregnant and the visa applicant will return prior to the birth of her child in March 2024 to help support her with the newborn.  The representative submits the visa applicant is close to his family members in New Zealand.  The Tribunal accepts that is the case and considers the presence of the visa applicant’s three children (one of whom is pregnant) and three grandchildren in New Zealand whom he lives with would likely constitute strong incentives for him to return to New Zealand before the expiry of any visitor visa that may be granted. 

17. In terms of his financial situation, the representative submits that the visa applicant (and his wife) receive pensions in New Zealand as indicated to the Department.  They have provided evidence of such to the Department and to the Tribunal.  It is submitted that they are also financially supported by their children there, whom they live with.  The Tribunal accepts that is the case and whilst modest, accepts the visa applicant and his wife are financially secure, receiving an income from their pension and financially supported by their adult children.   

18. The representative provided a copy of the visa applicant’s lease and vehicle ownership showing he and his wife are stable, and well-integrated into New Zealand society, where they plan to return once they help out their daughter here. 

19. It is submitted the visa applicant will stay with the review applicant during the proposed visit, who will also cover all of his (and his wife’s) costs.  A copy of a recent bank statement from the review applicant was provided to the Tribunal indicating she has the financial capacity to do so.

20. The Tribunal notes whilst the visa applicant has not visited Australia before, Departmental records indicate his wife has several times before, the last time in 2012.  It appears she abided by relevant visa conditions, including departing Australia before the expiry of the visitor visas.  

21. The Tribunal considers the review applicant will ensure her father abides by relevant visa conditions if the visa is granted, so as not to jeopardise any future visits. 

22. 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

23. 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.

    Nicole Burns
    Member

    
    
    

    ATTACHMENT: Documents provided to the Tribunal

    Priority request received by the Tribunal on 11 October 2023 containing the following attachments:

    ·Letter for priority request from a healthcare professional at DPV Health dated 6 October 2023

    ·Letter from maternity social worker at Mercy Hospital for Women attesting to family violence (for a court hearing) dated 4 May 2023

    ·Letter from psychiatry registrar at Mercy Hospital for Women (for court hearing) – 22 May 2023

    ·Letter from child protection practitioner, Department of Families, Fairness and Housing – undated

    ·Letter from social worker at Integrated Family Services for priority request dated 21 September 2023

    ·Letter from social worker at Merri Health explaining personal circumstances of review applicant to Hume City Council, Infringement Management – undated

    ·Letter from social worker, The Northern Hospital Acute Social Work Team dated 23 October 2023

    ·Letter from maternal child health nurse at Hume City council dated 3 November 2023

    ·Letter from a doctor at Tullamarine Complete Health Centre dated 6 November 2023

    Pre-hearing submission and supporting documents received on 27 November 2023 which include:

    ·Letter from Olivia Twining, Child Protection Practitioner (undated)

    ·Letter from Dr. Shyam Ravilla- Senior Psychiatry Registrar, North West Area Mental Health Services, dated 31 July 2023

    ·Letter from Ms Julie Toohey - Social Worker, Integrated Family Services dated 5 September 2023

    ·Letter from Annie Jennings- Social Worker, the Northern Hospital Acute Social Work Team, dated 23 October 2023

    ·Letter from Tali Troy- DPV Health dated 6 October 2023

    ·Letter from Dr Abbas Mohammed-Ali- Psychiatry Registrar, Perinatal Mental Health Mercy Hospital dated 17 November 2023

    ·Letter from Alison Rose- Nurse at Hume City Council dated 3 November 2023

    ·Final Family court order dated 5 October 2022 -  Evidence of travel restriction on the review applicant’s children

    ·Australian birth certificates for the review applicant’s children

    ·Rental Agreement for the visa applicant in New Zealand signed on 16 March 2020

    ·A letter from SL Shabani Law dated 1 November 2023 confirming the visa applicant applied for New Zealand citizenship in March 2023

    ·Evidence of the visa applicant and her husband’s pension benefits

    ·Copies of the visa applicant and his wife’s New Zealand permanent residency visas