Kalache (Migration)

[2020] AATA 4445

Kalache (Migration) [2020] AATA 4445 (6 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hanadi Kalache

VISA APPLICANT:  Mr Mohanad Kalache

CASE NUMBER:  1819490

HOME AFFAIRS REFERENCE(S):          BCC2018/2097630

MEMBER:Melissa McAdam

DATE:6 August 2020

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 06 August 2020 at 1:33pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting Australian citizen sister– genuine temporary stay criterion – genuine intention to stay temporarily – incentives to depart Australia – good migration history of review applicant – reasonably secure and stable employment in home country–decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 1 June 2018 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 15 May 2018. 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 (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.

   Visa application

4. The following is a summary of the information provided in the visa application:

   a.The visa applicant is a 29 year old single man from Beirut in Lebanon.

   b.He wished to visit his sister, the review applicant, and her family in Australia for two months in 2018.  The review applicant is an Australian citizen.

   c.He has worked as a supervisor of a Valet Car Parking Service in Beirut since April 2017.

   d.He has his own savings to fund his trip to Australia. His sister will also help support him while he is here if he needs and will provide him with accommodation.

   e.He has previously held two Student visas in Australia.  He applied for another Student visa while he was here but his application was deemed invalid. He was then issued a Bridging visa and departed Australia before the Bridging visa expired.

   f.He has previously been refused a Visitor visa.

   g.The review applicant previously sponsored their sister, Hoda, to visit Australia.

   h.The review applicant has worked as a Marketing Manager of a newspaper for the past 16 years.

5. The applicants enclosed copies of the following documents with the visa application:

   -The visa applicant’s Bank Account statement.

   -A Statutory Declaration by the review applicant that she personally guarantees and supports her brother’s visa application.

   -A letter from the visa applicant’s employer confirming his employment and that he will be returning to his work after his two months’ leave.

   -The applicant’s Lebanese Family Register.

   -The visa applicant’s Student visa grant in August 2014.

   -Letter dated 15 December 2016 from the Department notifying the visa applicant that his December 2016 application for a Student visa was invalid.

   -The visa applicant’s flight booking dated 26 December 2016 for his departure from Australia on 2 January 2017.

   -The review applicant’s Australian passport.

   -The visa applicant’s Lebanese passport.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he had not indicated the presence of any family members in Lebanon to induce him to return; his employment was not sufficient to demonstrate he intended to depart Australia; he had not provided evidence of substantial ties to Lebanon; Departmental records indicated he had overstayed his Student visa which expired on 9 December 2016 and remained in Australia unlawfully until 19 December 2016 when he was granted a Bridging visa to depart Australia; and DFAT information indicated Lebanon was experiencing ongoing political and sectarian tensions including lawlessness, political upheavals and violence due to the war in Syria.

   Information to the Tribunal

7. The review applicant submitted a copy of her sister Hoda’s Lebanese passport showing an arrival stamp to Australia in October 2016.

8. The review applicant appeared before the Tribunal on 5 August 2020 to give evidence and present arguments. The following is a summary of the information she provided at the hearing:

   a.The review applicant has also applied for a Carer visa on behalf of the visa applicant. She requires surgery and strong medication. The visa applicant is the only one available to help her with her medical recovery and care.  Her husband has muscular dystrophy and also works full-time.  The outcome of this visa application is very important to her. She would not allow her brother to jeopardise it by overstaying a Visitor visa.

   b.She wants the chance to prove that the visa applicant will comply with all his visa conditions and depart before his visa expires.

   c.All her relatives that have visited Australia have complied with their visa conditions.  Her mother visited while she was alive. Her sister Hoda has visited four times and always departed before her visa expired.

   d.The visa applicant will visit Australia and stay for however long the visa allows and then return to Lebanon.

   e.The review applicant will not allow her brother or any of her relatives to break the law.  She is studying law herself.

   f.When her brother applied for another Student visa in Australia they had no idea he would be considered unlawful because the visa application was invalid.  They relied upon mis-information given to them by their Agent. They thought they had applied for the visa validly and within time.  She still blames her brother for not checking the information provided by the Agent. When they were informed the visa application was invalid they asked their Agent what could be done. He told them that the visa applicant could stay in Australia by applying to the Tribunal repeatedly as this would take time and he could stay here.  They responded no they would not do such a thing and that the visa applicant would return to Lebanon and take his chances there in applying for another visa to Australia.  

   g.The visa applicant lives with another brother, Ahmad, in the family home. They also have many aunts and other relatives in Lebanon.

   h.The review applicant would love her brother Ahmad to visit Australia. She also wants her sister Hoda to visit again.

   i.The review applicant and her husband can lodge a security bond for the visa applicant’s visit to Australia. If they lost a large sum of money it would be financially difficult or them because they have a mortgage debt to repay.

   j.She and her husband want to keep their good name and record in Australia. She will make sure her brother leaves before his visa expires.  Her brother is a timid person who does not want to go against anyone or cause trouble. He will not do anything to cause trouble for her and her family in Australia or their other relatives in Lebanon.

   k.Australia is dear to the review applicant and in her heart. She will never do anything or allow her family to do anything against Australia or its laws.

9. Departmental records show that the applicants’ sister, Hoda, has been to Australia on a Visitor visa on four occasions - in 2006, 2013, 2016 and late 2019.  The records confirm she departed Australia well before the expiry of her visa on each occasion.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

12. 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)).

13. The visa applicant last held a Bridging visa E in Australia. It was subject to Conditions 8101, 8207, 8506 and 8512 and expired on 2 January 2017.  There is no indication in any evidence before the Tribunal that the visa applicant breached any of the conditions attached to the Bridging visa.  He departed Australia on the last day of the visa’s validity.  The Tribunal therefore finds that the visa applicant has substantially complied with the conditions of the bridging visa he held subsequent to his last substantive visa.  The Tribunal weighs this factor in the visa applicant’s favour.

14. 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.

15. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant and her husband while in Australia. The Tribunal accepts that he has savings and will have access to sufficient funds to support himself during a short visit to Australia.  On the information before it the Tribunal is satisfied that the visa applicant intends to comply with Condition 8101.

16. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied he intends to comply with Condition 8201.

17. Condition 8503 refers to entitlement and is not a condition that involves compliance.

18. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

19. Departmental records confirm that the visa applicant’s Student visa ceased on 9 December 2016 (a Friday) and that 3 working days later he applied for a further Student visa.  He was emailed a notification of the invalidity of that application on 15 December 2016.  Within two working days he lodged a Bridging visa application on the basis of departing Australia and departed on 2 January 2017.

20. In the Tribunal’s view these circumstances indicate that the visa applicant has had regard to Australia’s immigration laws and made efforts to substantially comply with them while in Australia. Once he learned he was unable to validly apply for a further Student visa, and had briefly become unlawful, he immediately made arrangements to obtain a Bridging visa and to depart Australia.  The Tribunal also notes his, and his sister’s, firm resistance to attempting to exploit unfortunate delays in the immigration review system to extend his stay in Australia.   The Tribunal gives the visa applicant’s immigration history in Australia substantial weight in his favour.

21. The Tribunal accepts that the visa applicant is from Beirut in Lebanon and that his brother Ahmad and extended family are living in Lebanon.  The Tribunal considers that the presence of  his brother and other relatives represents some incentive for the visa applicant to return to Lebanon after a stay in Australia.

22. The Tribunal gives substantial weight to the good migration history of the review applicant in Australia. The Tribunal also acknowledges the importance to the review applicant and her husband of maintaining a good reputation with regard to their family and relatives’ immigration compliance in Australia.  The Tribunal also gives substantial weight to the good migration history of the applicants’ mother and sister Hoda, in Australia. 

23. The Tribunal accepts that the visa applicant has reasonably secure and stable employment in Beirut which he would wish to return to.

24. The Tribunal notes that Beirut, and Lebanon generally, are experiencing significant economic hardship, and that Beirut recently suffered from a devastating explosion at the port area.  The Tribunal acknowledges that the visa applicant would find Australia a more economically stable and secure environment to live in. However this does not necessarily mean the visa applicant would choose to live in Australia rather than in Lebanon.  Further, there is no indication that the visa applicant would breach or disregard Australia’s immigration laws to achieve a prolonged stay in Australia and not return to Lebanon.  The review applicant impressed the Tribunal with her apparent sincerity and professed drive to ensure she and her family respect and abide by Australia’s laws.  She and the visa applicant have also demonstrated this in their past efforts to regularise the visa applicant’s status and ensure his compliance with immigration laws, without resorting to any abuse of processes here.  In short they have demonstrated that they hold adherence to the laws here to be above their own self-interest.

25. The Tribunal notes the review applicant’s intention to try to sponsor the visa applicant to be her carer in Australia. While this indicates she wishes him to remain here and that he may be willing for this to happen, it does not necessarily mean that she or he would breach any laws or conditions while waiting for the outcome of a Carer visa application.  The evidence does not suggest it would be in their interests to do so.

26. The review applicant has also indicated a willingness to lodge a security bond for her brother’s visit to Australia.  The Tribunal considers that the risk of losing the bond, with the ensuing financial difficulty this would cause, is further motivation for her and the visa applicant to ensure his compliance and departure before his visa expires.

27. Finally, the review applicant has expressed her wish to sponsor her sister again, and her brother Ahmad, to visit Australia.  The Tribunal considers this will be further motivation for her and the visa applicant to ensure he complies with all the conditions of his Visitor visa and departs before the visa expires.

28. For 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

29. 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.

    Melissa McAdam
    Member