Kaddoura (Migration)

[2021] AATA 4841

Kaddoura (Migration) [2021] AATA 4841 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Kaddoura

VISA APPLICANT:  Mrs Fatima Salameh

CASE NUMBER:  2002094

HOME AFFAIRS REFERENCE(S):          BCC2019/6659874

MEMBER:Mark Bishop

DATE:3 December 2021

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 03 December 2021 at 11:36am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – compliance with visa conditions – non-dependent family remaining in Lebanon – previous compliant visits – financial support received from overseas family – family commitments in home country – security, political, and economic situation in Lebanon – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 31 December 2019 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 December 2019. 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.

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 (RA) and Visa Applicant (VA) appeared before the Tribunal on 3 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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 family. 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. The delegate made the following findings:

    ·“Under policy when considering “any other relevant matter”, decision makers may take into account a wide range of considerations to determine whether an applicant genuinely intends a temporary stay in Australia. This may include, but is not limited to, the applicant’s employment, economic and family circumstances, their credibility, the claimed purpose and period of stay, and the applicant’s previous travel history.

    ·In assessing these criteria I have taken into account the information provided in your visa application form and the supporting documents provided. I find that the information provided is not sufficient to satisfy me of your genuine temporary stay intention, and you have not demonstrated you have sufficiently strong commitments in Lebanon that would be an incentive for you to return to Lebanon. I have based this conclusion on a combination of the following factors:

    oYou have declared only adult non-dependent children remaining in Lebanon

    oYou have declared that you are unemployed or responsible for home duties

    o Your previous declared compliant travels to Australia does not persuade me that you will comply on this occasion

    oInvitation letters, such as the one you provided, are not sufficient evidence of a genuine temporary stay

    ·I have considered the economic, political and security situation in your home country. It is well documented that Lebanon has suffered political and civil unrest over many years and that the situation remains unpredictable and has been heightened over the last few weeks. Departmental information shows that it is not uncommon for Lebanese nationals to overstay their visa or change their status after their arrival in Australia.

    ·I find that these circumstances are of such a nature that they would act as an incentive for you to remain in Australia beyond the validity of your visa.

    ·In light of the above considerations, I am not satisfied that you genuinely intend to stay temporarily in Australia for the purpose you have stated, and therefore find that you do not satisfy Subclause 600.211 of the Migration Regulations 1994.”

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

    ·He had been an Australian citizen since 2016 and resident in Australia since 2009. He was married, lived in Sydney and had a 7 month old daughter. He was employed in a secure position in the education sector.

    ·His family came from Tripoli in the north of Lebanon.

    ·He had limited family in Australia comprising a younger brother and cousins.

    ·His mother (the VA) had lived in Lebanon all of her 61 years and had extensive family (inclusive of 4 children living in Lebanon with their families and children) and friends in the home country.

    ·All the children of the VA supported her on a roughly equal basis. The VA did not have independent income in Lebanon or any business assets. She relied upon family support.

    ·The RA advised the Tribunal the VA had a settled life in her home country and only wished to visit Australia to stay with her children and see family.

    ·The VA is not unemployed. She is not seeking work. The VA receives sufficient support from her children to live well in Lebanon. She is a mother with home duties.

    ·The VA is not affected by the current economic crisis in Lebanon because the financial support she receives is in $US and $AUD  which serve as a financial protection in the home country where the local currency has minimal value. The use of $US and $AUD  in Lebanon serve as a financial buttress and protection for the holders of those currencies.

13. In evidence to the Tribunal the VA advised as follows:

    ·She was 61 years of age, married and her husband has passed. All her children were now adults and with one exception had their own families. The VA lived with her daughter.

    ·The VA has 5 grandchildren in Lebanon.

    ·Whilst in Australia she will stay with her son and her son will look after all her costs.

    ·The VA has visited Australia on 2 occasions in the past  and adhered to all visa conditions.

    ·The VA wishes to visit Australia for  1 month to see family and her new grand-daughter.

    ·The VA has no business or commercial interests in Lebanon and relies on her family in Australia and Lebanon to provide support.

    ·The VA is not affected by the current difficult situation in Lebanon. People in  Lebanon have put up with a lot in the last 20 years and are use to it.

14. Under Departmental policy when considering “any other relevant matter”, decision makers may take into account a wide range of considerations to determine whether an applicant genuinely intends a temporary stay in Australia. This may include, but is not limited to, the applicant’s employment, economic and family circumstances, their credibility, the claimed purpose and period of stay, and the applicant’s previous travel history.

15. As explained to the RA the Tribunal is not bound by Departmental policy and brings an independent mind to these review proceedings.

16. In assessing these criteria the Tribunal taken into account the information provided in the visa application form, the supporting documents provided and the evidence of the RA and VA. The Tribunal finds that the information provided is sufficient to satisfy the Tribunal of the applicant’s genuine temporary stay intention and the applicant has demonstrated sufficiently strong commitments in Lebanon that would be an incentive to return to Lebanon.

17. The Tribunal has considered this evidence very carefully. The Tribunal has paid particular attention to the evidence of the RA and VA that goes to GTE matters. The Tribunal notes the evidence of the RA and the VA was largely similar and any slight differences are matters of emphasis only or caused by difficulties in translation due to phonetic pronunciations.

18. The Tribunal after careful consideration finds that this evidence going to GTE is sufficient to outweigh the other factors including the recent significant deterioration of the economic, social, and security situation in Lebanon as outlined in the evidence and summarised in country information reports and discussed with the RA and VA. The Tribunal notes the VA’s current circumstances including the fact she lives with her nuclear family in Tripoli in the north of Lebanon, has immediate family in Tripoli who provide economic, financial and care support and her family have other assets in the form her own home and has extensive family and friends in Tripoli. It is also noted by the Tribunal that the VA has limited family links in Australia.

19. The Tribunal is persuaded these matters taken together are sufficient to confirm the applicant's expressed intention to visit Australia temporarily is genuine. The Tribunal is satisfied that the VA would abide by the conditions subject to which a Visitor (class FA) (subclass 600) visa is granted or that the applicant would depart Australia at the end of the requested period of stay.

20. As stated, the Tribunal has also considered the recent country information reports from the Department of Foreign Affairs and Trade, and notes that the security, political, and economic situation in Lebanon at the present time is particularly bad and any improvements in the last 12 months only marginal and at best incremental. Both the RA and VA separately advised the Tribunal of the current difficulties in Lebanon. The RA advised the Tribunal that generally economic matters were poor but local residents had got use to these difficulties over the decades. In particular the RA advised the Tribunal that as the VA is in receipt of $US and $AUD she is in a relatively advantageous financial position compared to the majority of the populace.  The Tribunal notes the recent humanitarian crisis and how it has evolved for the worse over the last few years. The Tribunal has considered this matter very carefully and finds that the situation back in the VA’s home country is quite poor and that this does lend some weight to the contention that the VA does not genuinely intend to visit Australia temporarily for the purpose for which the visa is granted. However on balance the Tribunal is persuaded by the physical location of the VA with close access to her family in Tripoli a major population centre in Lebanon offers a degree of comfort, support and protection and act as an incentive to return to the home country.

21. Having taken all these factors into consideration the Tribunal finds that should the VA now be successful in coming here as a visitor taking into account the changed circumstances in Lebanon (the ongoing breakdown and only gradual differentiated improvements in government, community, social and restricted services since the date of lodgement of the visa application in the home country as set out above) that the VA does genuinely intend to stay in Australia temporarily.

22. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

23. For the above reasons the Tribunal is satisfied that the VA 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.

    Mark Bishop

    Member