Jaber (Migration) - [2024] ARTA 459

JABER (MIGRATION) [2024] ARTA 459 (13 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Abdel Rahman Mohammad Asad Jaber
Visa Applicant:  Mr Basim Mohammad Ass'ad Jaber
Respondent:  Minister for Home Affairs
Tribunal Number:  2437738

Tribunal:General Member M. Moustafine
Place:Sydney
Date: 13 November 2024
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 13 November 2024 at 2:37pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting brother and attending nephew’s wedding – genuine temporary entrant and compliance with conditions – siblings, children and grandchildren in home country and other countries, and review applicant and his family in Australia – wife’s and son’s health – one sister granted visa and cannot travel by herself – government pension, and secure political/economic/social conditions – review applicant’s plans to sponsor other family members – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 September 2024 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 16 September 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 Tourist stream.
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.
Evidence before the Department
Based on his visa application, the visa applicant Basim is a 64-year-old citizen of Jordan, born in Shuwayka, Tulkarem, Palestinian Authority and living in Irbid, Jordan. He is married and is retired since 2021. He seeks the visa for the purpose of a family visit for two weeks to attend the wedding of his nephew, the son of the review applicant, who is an Australian citizen. He proposes to travel with his sister Amal and nephew Khaled. His visit will be funded by his brother and his sons. The visa applicant stated that he has not previously visited Australia and will not work or undertake a course of study during his visit. Family members remaining in Jordan include his five daughters and two sons, as well as siblings.
A statutory declaration from the review applicant was submitted to the Department, stating that he wished to invite the visa applicant, his closest and eldest brother Basim, to visit Australia for a few weeks to attend the wedding of his eldest son Omar on 13 December 2024. The review applicant stated that the only family he had in Australia were his wife and three children. He hopes the visa applicant will be able to travel for the wedding together with their sister Amal, who has already been granted a Visitor visa and cannot travel by herself. The review applicant owns his home and a trucking company. He will accommodate both of his siblings at his house and will fund all the cost of their trip, together with his sons. The visa applicant has to return to Jordan as he is the principal carer for his only son who suffers from severe mental disability and autism spectrum disorder and is responsible for his daughters and a sick wife, is close to his grandchildren and visits his parents’ graves. He derives income from a house he rents out in Irbid. Despite the instability in the Middle East, the security and economic situation in Jordan and Irbid is quite stable and secure. The visa applicant has given his undertaking to abide by all visa conditions and depart for Jordan by 1 January 2025. He understands that the review applicant plans to sponsor other family members to visit Australia in the future and will not do anything to jeopardise this by any non-compliance on his part.
Supporting documents included the nephew’s wedding invitation, wedding venue contract and evidence of relationship; Australian visa grant for the visa and review applicant’s sister Amal; a medical report on the visa applicant’s disabled son in Jordan; the visa applicant’s family registry, rental agreement, his mother’s death certificate and parents’ graves; the review applicant’s ABN look up and bank statements and bank statements of his sons.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 finding that he had provided limited evidence of his financial standing in Jordan that would provide sufficient incentive for him to return home at the end of his proposed stay. He was therefore not satisfied that the applicant intended to stay temporarily in Australia.
Evidence before the Tribunal
On 9 October 2024, the review applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision, providing a copy for the purposes of the review. Also provided were copies of documents previously submitted to the Department (paragraphs 5 and 6 refer). The review applicant was represented in relation to the review.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 11 November 2024, ahead of the hearing the representative provided a legal submission and supporting documents, including many previously submitted. Key relevant points made in the submission were that:
a.The visa applicant has strong familial incentive to return to Jordan, where the majority of his family live including his children, grandchildren, brothers and sister and is responsible for looking after his son severely disabled younger son. These ties and obligations outweigh ties to his family in Australia
b.As a retired professor, he receives a government pension, welfare payments for his son and financial assistance from his children and brother in Australia. This provides him with sufficient income for a comfortable livelihood in Jordan, a country add culture to which he is deeply connected.
c.The applicant sister Amal, who also lives in Jordan, has been granted a Visitor visa to attend the same wedding I will be arriving in Melbourne on 15 November 2024.
d.The applicant proposes to visit for one month to attend his nephew's wedding and to spend time with the family.
e.He has no apprehensions of persecution and has no grounds to seek a protection visa during his stay in Australia. He will comply with all visa conditions.
The hearing
The review applicant appeared before the Tribunal by MS Teams videoconference on 12 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Jordan by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant told the Tribunal he first came to Australia on a Student visa, [information redacted] and was later granted a spouse visa and became an Australia citizen. He is married with two sons and a daughter, who are his only direct family in Australia. He owns his house and works in transportation as an owner/driver. He has brothers in Jordan, as well as in the UAE and Germany and a sister in Jordan. He has invited the visa applicant, his older brother who is like a father to him, to visit Australia for 6-8 weeks to attend his son’s wedding, a very important family occasion. His sister has already received her visa and will arrive next week. They also plan to visit places around Melbourne and Sydney. The review applicant last saw his brother in September 2023 when he visited Jordan with his wife and children. He said the visa applicant has not been involved in politics and has had a stable life in Jordan where he has lived for some 30 years.
The visa applicant told the Tribunal that he is a retired physics teacher, who has been living in Jordan for many years since his family moved there from Kuwait. He lives in a rented house with his wife, three of his daughters and a disabled son. His other children and grandchildren, as well as two brothers and a sister also live in Jordan. He has a stable life and strong family ties and responsibilities in Jordan. With his government pension, savings, allowance for his son and assistance from his family abroad he is able to live a good life in Jordan. He has never been involved in politics and has no interest in seeking protection in Australia. He wishes to visit Australia for a month to six weeks and return to his family, his culture and his life in Jordan. These are his incentives to return.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present 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.
In the present case, the visa applicant seeks the visa for the purposes of a family visit to attend his nephew’s wedding. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
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 previously visited Australia, the question of previous compliance is not relevant. According to Department records, there is no evidence of non-compliance with conditions of his previously held visa by the review applicant, who was granted a permanent (subclass 801) partner visa in February 2009.
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 600.611 (3)):
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 months
Based on the documentary evidence provided by the review applicant, the Tribunal accepts that he and his sons have enough funds to cover the costs of the visa applicant’s travel and will provide him with accommodation. It accepts the visa applicant’s written and oral evidence that he does not intend to work or to study while in Australia. In these circumstances the Tribunal is satisfied that the visa applicant intends to comply with condition 8101 and Condition 8201.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The delegate was concerned that the visa applicant had only provided limited evidence of his financial standing in Jordan to provide sufficient incentive for him to return to home and comply with the conditions of his visa. While the visa applicant’s means may be modest, on the basis of the evidence provided, the Tribunal is satisfied that he and his dependents are able to live a comfortable life in Jordan. Further, the Tribunal is satisfied that the visa applicant’s strong family and cultural ties and responsibilities in Jordan, which he considers his home, give him strong incentive to return there within the timeframe of his visa. Moreover, the Tribunal accepts the review applicant’s evidence that his brother would not do anything to jeopardise the chances for other family members to visit Australia at a later time.
In view of the ongoing conflict in the Middle East [information redacted], the Tribunal explored whether the visa applicant might seek to remain in Australia by applying for protection. The Tribunal accepts the evidence of both the visa and review applicant that the visa applicant has never been involved in politics, has a stable and secure life in Jordan and has no interest in seeking protection in Australia.
Having considered all the evidence before it, 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
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.
Date of hearing: 12 November 2024
Representative for the Applicant: Mr Omar Jaber