Jawad (Migration)

[2021] AATA 5261

Jawad (Migration) [2021] AATA 5261 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wajih Jawad

VISA APPLICANT:  Mr Mohamad Jawad

CASE NUMBER:  2005515

HOME AFFAIRS REFERENCE(S):          BCC2020/196443

MEMBER:Mark Bishop

DATE:5 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 05 November 2021 at 11:51am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – sponsored by a ‘relative’ of the applicant – cousin – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 600.232

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 18 February 2020 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 10 January 2020. 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 600.232 because the applicant did not fit the criteria.

5. The review applicant appeared before the Tribunal on 5 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 Australia. 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 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.

11. Clause 600.232 is as follows:

    600.232
    (1) one of the subclauses (2) to (4) applies.
    (2) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent
    resident, who is at least 18 and;
    (a) a relative of the applicant; or
    (b) a relative of another applicant who is a member of the family unit of the applicant; or
    (c) a relative of another application in relation to whom the applicant is a member of the
    family unit.
    (3) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent
    resident, who:
    (a) is a member of the Commonwealth Parliament or a State Parliament; or
    (b) is a member of the Legislative Assembly of the Australian Capital Territory or the
    Northern Territory; or
    (c) Holds the office of mayor.
    (4) The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

12. The term ‘relative’ is defined in reg 1.03 of the Regulations as follows:

    relative, in relation to a person, means:

    (a)  in the case of an applicant for a Subclass 200 (Refugee) visa or a or a protection visa:

    (i)  a close relative; or

    (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or

    (iii)  a first or second cousin; or

    (b)  in any other case:

    (i)  a close relative; or

    (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

    Note:    Close relative is defined in this regulation: see above.

    Close relative’ is defined in reg 1.03 as follows:

    close relative, in relation to a person, means:

    (a)  the spouse or de facto partner of the person; or

    (b)  a child, parent, brother or sister of the person; or

    (c)  a step-child, step-brother or step-sister of the person

13. The delegate made the following findings:

    ·“In accordance with regulation 1.03, the following individuals may also sponsor a subclass 600 applicant: a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

    ·These relationships are considered to be within a sufficiently close degree of family relationship to ensure effectiveness of the security bond provisions. Persons such as cousins, fiancés, relatives by marriage (in-laws) friends and New Zealand citizens are ineligible to sponsor a Visitor Visa (subclass 600) applicant.

    ·Given that the nominated sponsor, Mr JAWAD Wajih is the applicant's «cousin he does not come under the definition of 'relative' listed above. Mr JAWAD Wajih is therefore ineligible to sponsor under this class of visa.

    ·Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.232 in Schedule 2 of the Migration Regulations.”

14. In his Application for a Visitor visa -Sponsored Family Stream dated 26 December 2019 the visa applicant set out his family details father, mother and 3 brothers by name and date of birth at paragraph 21. In the same visa application he declared “I have my salary and my cousin to support me” at paragraph 35. The review applicant is the cousin of the applicant. At paragraph 36 of the same visa application the visa applicant declared the full name of his sponsor as Wajih Jawad. Mr Wajih Jawad is the review applicant in the current review application.

15. In evidence to the Tribunal the RA advised as follows:

    ·The VA was his cousin.

16. The Tribunal asked the RA had he read the delegate’s decision. The RA advised in response he had been provided with a copy of the decision but had not read it. The MA had not explained the decision to the RA. The Tribunal explained the rationale of the delegate’s decision and the significance of the relationship between the RA and the VA being that of cousins.

17. The Tribunal is satisfied the VA and the RA are cousins.

18. Therefore, the Tribunal is not satisfied that the applicant meets the relevant criteria in clause 600.232 in Schedule 2 of the Migration Regulations.

19. As clause 600.232 is not satisfied, the Tribunal finds the criteria for the grant of a Visitor (Sponsored Family) visa in the Sponsored Family stream are not satisfied.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Mark Bishop
    Member