Jdid (Migration)

Case •

[2019] AATA 3464

•

2 July 2019

Jdid (Migration) [2019] AATA 3464 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Jdid

VISA APPLICANTS:  Mr Ahmad Jdid
Mrs Alia Darwich

CASE NUMBER:  1804708

HOME AFFAIRS REFERENCE(S):          BCC2017/4591800

MEMBER:Ian Garnham

DATE:2 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 July 2019 at 4:54pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – visa to visit children and grandchildren – Tribunal not satisfied applicants genuinely intend to stay temporarily in Australia – son did not comply with visa conditions – son sought permanent residency while travelling on visitor visa – potential for visa applicants to seek permanent residency while on visitor visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 17 January 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

  2. The visa applicants are married and citizens of Lebanon.  They are the parents of the review applicant.  They applied for the visas on 30 November 2017. At the time the visa applications were lodged, Class FA contained one subclass, subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because they were not satisfied that the applicants genuinely intended to stay temporarily in Australia.

  5. The review applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant by conference telephone.    

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

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

    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 applicants seek the visas for the purposes of visiting Australia together; spending time with their 2 sons and 5 grandchildren and conducting some tourist activities with them.

  10. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

    cl.600.211(a):

  11. 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.

  12. The visa applicants have not previously travelled to Australia.  However, the delegate attached significant weight to the conduct of another family member.  Another son of the visa applicants; …travelled to Australia on a temporary visa and did not abide by the conditions of that visa.     

  13. The visa applicants’ son, (Nadir) is 32yo and came to Australia on 22/09/2012 on a subclass 679 Tourist visa.  The visa ceased to have effect on 03/11/2012.  Since 19/06/2014 Nadir has been on subclass 050 Bridging visas.  At the hearing the review applicant said his brother was being persecuted in Lebanon; he did not know this at the time, he applied for protection and was unsuccessful, he now has a Partner visa application lodged and has been granted work rights.

  14. His brother, the review applicant came to Australia in December 2007 on a subclass 572 Vocational Education & Training visa.  In June 2012 he was granted a subclass 801 permanent Partner visa.  He married in 2010 and has 3 young children.  There is no evidence before me that the review applicant has failed to comply with any of the conditions of his visas.

    cl.600.211(b):

  15. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. 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.

  16. The visa applicants have a large family of 12 children.  Three of them who live independently have had children themselves.  Seven children live at home along with a sister of the 1st named visa applicant.     The two sons in Australia have 5 children and it is understandable that their grandparents wish to visit them.  The 10 children and grandchildren remaining in Lebanon provide a strong incentive for the visa applicants to return.  In addition, in the application forms, the 1st named visa applicant claimed 5 siblings and the 2nd claimed 11 siblings all living in Lebanon, they also provide incentives for the visa applicant’s to return to Lebanon. 

  17. In the visa applications, both applicants sought visa periods of up to 3 months.  The 1st named visa applicant said he may not stay for the entire visa period due to work commitments.    He has various orchards, with fruit to pick and workers to pay.  Evidence of the land assets[1] of the 1st named visa applicant were provided with the application.

    [1] At FF: 4-6 (DOHA)

  18. I acknowledge that the 1st named visa applicant has provided evidence of his landholdings in Lebanon.  I also acknowledge that he has 7 dependent children who would remain in Lebanon and this provides significant incentive for him and his wife to return after visiting their 2 sons and 5 grandchildren living in Australia.

  19. At the hearing the 1st named visa applicant was adamant that he would not seek to remain in Australia, and thereby breach his visa conditions, as one of his sons has done.  He said that in season he has fruit to pick and workers to pay. 

  20. The 1st named visa applicant is almost 68yo and his wife is 60yo.  At their stage in life it is highly unlikely they will seek to work or enter long-term study.  What is in issue is whether they would seek to remain in Australia after their permitted stay ends.  When I asked the 1st named visa applicant about his son’s conduct, who did just that, (as discussed at paragraph 13) he said he was surprised when his son did this and he did not realise that his son was trying to escape from the war.

  21. Therefore it is the last condition which, on its face, the visa applicants would be at risk of breaching.  In essence a consideration of the likelihood of the visa applicant’s breaching this condition must balance their incentives to remain in Australia against their incentives to return to Lebanon.      

    cl.600.211(c):

  22. The Tribunal has also considered all other relevant matters.

  23. All of the visa applicants’ live in Kabhit in the Akkar district of Northern Lebanon.  The delegate referred to the current instability of the region.  While I acknowledge this is a dangerous part of the world my understanding is that the conflict within Syria and close to the border has decreased significantly since the delegate’s decision was made (January 2018).  For this reason I have attached little weight to this aspect of the visa applicants’ circumstances.

  24. I discussed with the applicants the possibility of, initially one parent coming to Australia rather than both.  This would significantly increase the incentive for the travelling parent to return to Lebanon.  The 1st named visa applicant said that they want to come together but if the tribunal would only approve one of them it is better than nothing and either one of them would be OK with this.  They just want to see both of their sons and their families.  In this regard I note the review applicant last returned to Lebanon and visited his family there in 2016.  Whereas, his brother who remained in Australia has not returned since 2012. 

  25. I have acknowledged that the visa applicants have significant family who will remain in Lebanon and if they were to come separately they would also have the incentive of a partner to return to as well.

  26. In addition, the review applicant has provided evidence of a successful business and assets to provide for his parents in Australia.[2]  He has also declared a willingness to provide a security deposit to ensure their return should DOHA require this.

    [2] At F: 25-34 (DOHA)

  27. While I recognise significant indicators in the applications that the visa applicants will return, I also retain concerns regarding the visa applicant’s son’s actions and his determination to remain in Australia.  I say this because the family narrative is that he came to Australia on a tourist visa and, unbeknown to the review applicant or the 1st named visa applicant, he claimed to have been persecuted in Lebanon and unsuccessfully sought protection here.  He has gone on to now lodge a permanent partner visa claim. 

  28. While his visa status in Australia is still undetermined I maintain concerns with respect to the rest of the family members and the potential that exists for them to also seek permanent residence while travelling on a visitor visa as he has done.              

  29. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

    DECISION

  30. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Ian Garnham
    Member



Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Natural Justice

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