HINDI (Migration)

[2018] AATA 3138

HINDI (Migration) [2018] AATA 3138 (26 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs FADIA HASSAN HINDI

VISA APPLICANT:  Ms ROUKAYA CHAABAN

CASE NUMBER:  1722408

DIBP REFERENCE(S):  BCC2017/2903469

MEMBER:Meena Sripathy

DATE:26 June 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 June 2018 at 11:55am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Sponsored Family stream – Visiting family members – Genuine intention to stay temporarily – Engagement to a French resident – Ongoing commitment to resume and finish study – Ongoing employment – Greater incentives to seek to reside in France than Australia – Decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 18 September 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 11 August 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 the visa applicant intends a genuine temporary stay in Australia having regard to her personal circumstances and country conditions in her country of origin.

5. The review applicant appeared before the Tribunal on 8 June 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa applicant is a 29 year old single woman from Tripoli, North Lebanon. She seeks the visa to visit her mother and three siblings, who live in Australia.  She is a student, studying a Masters in French language at University of Clermont Auverge- Kavilam Vichy.  She indicates she was refused a Child (Migrant) visa in July 2017 because she did not meet the criteria. The application is sponsored by the review applicant who is the visa applicant’s mother and who is an Australian permanent resident.  The application is accompanied by the visa applicant’s passport evidencing a Schengen visa valid to September 2017; the review applicant’s passport indicating her nationality as Palestinian, and arrival in Australia on 17 June 2013; review applicant’s Australian travel document indicating her permanent visa and subsequent arrival in Australia on 26 January 2016; [a document] indicating the review and visa applicants’ family relationship; Certificate of Enrolment confirming the visa applicant’s enrolment in the Master of French Language program from 26/6/2017 to 21/7/2017 at Cavilam, Vichy, France and a bank statement showing card withdrawals in Vichy in July 2017.   

9. Before the Tribunal the applicant provided a Statutory Declaration from the review applicant setting out relevant details of her background, including migration history, and details of the visa applicant’s circumstances.  She provides information that she came to Australia in June 2013 as a visitor and subsequently applied for [a permanent visa]. She is now an Australian citizen. She acknowledges that her own migration history and also the history of her sponsorship of her children for Child visas would have an adverse effect on the visa applicant’s application. However she states, the visa applicant is 29 years old. She has been studying a Masters of French Language at Cavilam Vichy Alliance University for the past two years and will be commencing her study again on 25 June 2018.  She has a scholarship for her study through the French Embassy in Lebanon, facilitated by UNWRA where she has been employed as a French teacher this past year. She is also engaged now to a Frenchman who is also of Lebanese Palestinian origin and they intended to marry in March this year but it was delayed because of this visitor visa application.  She hopes and intends to continue to reside in France and hopes to be sponsored for French residency through her husband. She has also travelled to Dubai and returned to Lebanon previously. The review applicant states that she is unwell and anxious to see her daughter.  Attached in support are documents relating to the visa applicant’s enrolment in a course at Cavilam Vichy Alliance Française from 25 June to 20 July 2018, UAE visa and a psychologists letter relating to the review applicant’s condition.

10. At the hearing the review applicant told the Tribunal she has a daughter and two sons in Australia and the visa applicant in Lebanon. She has no other children and her husband passed away in May 2014.  The review applicant told the Tribunal she came to Australia in June 2013 to provide assistance to her daughter who was giving birth to a baby, and also had young twins at this time. After she arrived she made an application to change her status and remain here [permanently]. When she got her permanent residency she applied for all her children to join her here, on Child (Migrant) visas, but only her two sons were successful. The visa applicant was found to be an independent by this time.  The Tribunal put to her that given this history, it may also have a concern the visa applicant would seek to do the same.  The review applicant said in response, the visa applicant’s circumstances are very different to her own. She just wants to come for a visit. 

11. The review applicant provided the following evidence about the visa applicant’s circumstances.  She is single and lives alone in their family home. The review applicant’s father lives in Lebanon, he is 94 years old.  She also has 4 sisters and  a brother there, and another brother who lives in France. The visa applicant lives in the Beddawi refugee camp. The review applicant’s father and siblings live outside the camp.  The review applicant said most of her nieces and nephews remain in Lebanon with their parents, with the exception of 2 nephews, one is in the USA and one in Turkey. The visa applicant has been working at UNRWA as a French language teacher for the past one year.  She has two jobs, one as a French language teacher for UNRWA and one marking language tests at the French Embassy, as required.   She got the job at the UNRWA after she returned from France last year, and the second job earlier this year. She is also studying a Masters program of French Language.  This is an online course and requires her to travel to France each year to sit the exams.  She went last year for one month and is due to go again this June.  While in France last year she met her fiancé Mohammad Abu Taha, and they are planning to marry.  He is also Palestinian Lebanese and he lives, works and studies in France.  After she returned to Lebanon last year he came and they got engaged in August 2017.  They were going to marry in March but then postponed it. 

12. The Tribunal asked why she postponed the marriage.  She said she wanted to come here and see her mother and family before marrying him.  The Tribunal put to the review applicant its concern that it may not believe she has a fiancé and plans to marry given that she has not married to date and its concern is that she may have an intention to seek to remain here.  The review applicant said the visa applicant’s circumstances are very different to her own. Unlike the review applicant, the visa applicant has work as a teacher, she has access to an UNRWA marked car to take her to and from school.  She is very happy with her work and her study and she has worked very hard to do this study and needs to complete it.  The review applicant said that earlier before she had her job or her study, she made an application to join her mother and siblings in Australia and this is normal.  But since then, her circumstances have changed, she is almost 30 years old, she is independent, she has done her degree, now has work, and a fiancé. She is planning to complete her studies in France and she will very likely seek to live in France with her fiancé.  If she did not want to return to Lebanon, she would have stayed in France when she went there last year.  She is not likely to overstay her visa here when she is in the model of her study, and has a job to return to there. Her incentives to leave Australia are her work, job and fiancé. The review applicant also mentioned that she would not allow the visa applicant to overstay her visa because she wants to invite other family members to come later. She just would like to see her daughter before she marries.  They want to surprise her with a party before her marriage.

13. The Tribunal spoke with the visa applicant by telephone.  She told the Tribunal she wants to see her mother and siblings, for a short visit.  She confirmed that she lives alone in the camp.  She has close relatives close by including her grandfather, aunts and uncles. She said she was recently engaged to a man she met in France last year.  His name is Mohammad Abu Taha. They got engaged in August and planned to marry in March but it was postponed so that she could visit her mother and siblings first.  She is going to France again this month and they will discuss the plan to have the wedding in the future.  The visa applicant said she is studying a course, online, and goes to France to sit exams each year. She has another one year to finish the course. She works as a French teacher at an UNRWA school. She has been working here since one year.  She is paid a salary into her bank account.  She also has a casual job marking exams at the French Embassy. The visa applicant confirmed she has a valid Schengen visa and will be traveling to France this month for one month. She won’t stay longer because she must abide by the visa conditions and has to return to Lebanon in July.

14. In response to the Tribunal’s concerns that she may seek to remain here because her mother and siblings are all here and she has previously applied for a permanent visa the visa applicant said the following: she is preparing for her masters degree; she is no longer young and wants to consider further higher studies after this course. She has met the person she loves and plans to get married to him.  She has a door open to her to migrate to France down the track if she wanted to leave Lebanon.

15. Following the hearing the review applicant provided further evidence in support of matters that arose: a Statutory Declaration from the review applicant addressing issues arising at the hearing; sworn statement from the visa applicant’s fiancé Mohammad Abou Taha confirming his engagement to the visa applicant and indicating their plan to marry in March 2019; a wedding invitation stating this proposed date of marriage; Certificate of Service confirming the visa applicant’s employment at Mouont Tabout School; visa applicant’s bank statement showing regular salary payments form UNRWA; documents relating to the visa applicant’s fiancé’s work, study and residency in France; letter from a Sheik referring the the visa applicant and fiancé’s planned marriage in Lebanon in March 2018 dated 9/11/2017.

16. 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.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting her mother and siblings in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

18. 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)). As the visa applicant has not travelled to Australia previously, there is no personal visa history to consider.

19. 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.

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)). Having regard to all of the evidence now before it, the Tribunal makes the following findings.  It accepts that the visa applicant is presently single and lives alone in the family home in a Palestinian refugee camp in Lebanon. It accepts on the oral and documentary evidence provided that, since the application was made, she has become engaged to a Palestinian Lebanese man who resides in France, and they plan to marry in the near future. The Tribunal accepts that the visa applicant has ongoing employment as a French teacher and marking exams for the French Embassy in Lebanon.  She has provided letters to confirm this employment and also her bank statement showing payment of salary. The Tribunal accepts that she is also presently engaged in a masters course in the French language, which requires her to travel to France each year to sit exams.  The Tribunal accepts that the visa applicant holds and has held Schengen visas permitting her to travel to France and that she has travelled there last year and intends to travel there again in June this year for this purpose. 

21. Having regard to these findings, the Tribunal is satisfied that the visa applicant has extended family ties in Lebanon, is now engaged to be married to a man who resides in France, has stable accommodation, ongoing employment and is in the middle of a course of study and these are all strong incentives for her to depart Australia and return to Lebanon at the end of the visa period. 

22. The Tribunal has also taken into consideration the visa applicant’s strong family ties in Australia, her mother’s (the review applicant’s) own migration history; her past unsuccessful application for a permanent visa and independent information about country conditions in Lebanon and in particular for Palestinian refugees and women, to the extent that these are factors which may discourage her return or indicate her intention to seek to remain.  These matters were all discussed with the review applicant and visa applicant at the hearing and the Tribunal has carefully considered their responses and explanations.  On balance, having regard to the visa applicant’s changed circumstances since her last permanent visa application, it accepts that her incentives to return to Lebanon far outweigh the factors that may indicate she would remain.  In particular, the Tribunal accepts that her engagement to a French resident, and ongoing commitment to resume and finish her French language study are strong indicators that she has greater incentives to seek to reside in France than Australia.  The Tribunal observes and places weight on the fact that the visa applicant has held multiple Schengen visas and has travelled to France and returned and this is a clear indication that she has no immediate intentions of leaving Lebanon or fears of returning there. 

23. For all 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

24. 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.

    Meena Sripathy
    Member