Khoder (Migration)

[2019] AATA 1110

Khoder (Migration) [2019] AATA 1110 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ghadir Khoder

VISA APPLICANT:  Mr Mohamad Khoder

CASE NUMBER:  1800296

DIBP REFERENCE(S):  BCC2017/3721047

MEMBER:Ian Garnham

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 February 2019 at 10:52 am (VIC time)

DATE OF WRITTEN RECORD:                14 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review 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 14 March 2019 at 3:53pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting sister and her family – incentive to return to home country – gainful employment – medical condition of review applicant’s youngest child – genuine need for a new and close relative to assist them for a short period – prospects of sponsoring future family visits – decision under review remitted

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 October 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 11 February 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. ORAL DECISION OF MEMBER GARNHAM

4. MEMBER: The following are my reasons for decision and decision in this matter. This is an application for review of a decision made by the delegate of the Minister for Immigration on 26 October 2017. The decision was to refuse to grant the visa applicant a (Visitor) (Class FA) visa under 65 of the Migration Act.

5. The visa applicant is Mr Khoder Mohammed and he applied for the visa on 10 October 2017.  At that time the visa application was lodged class FA contained one subclass of visa; that is subclass 600 visitor visa which has four streams.

6. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the sponsored family stream. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations. Relevantly to this case they include clause 600.211. This clause requires that the visa applicant satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

7. The review applicant Mrs Ghadir Khoder appeared before the tribunal on 11 February 2019 to give evidence and present arguments.  The tribunal also received oral evidence from the visa applicant and the review applicant's husband Mr Mohammed Eriq.

8. The tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.  The review applicant was not represented in relation to the review.

9. The issue in this case is whether clause 600.211 is met.  This requires the tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of 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.

   Family connections and purpose of visit:

10. In this case the visa applicant seeks the visa for the purpose of visiting his sister and her family.  It is opportune to point out at this stage that the family construction is as follows.  The visa applicant is the sister of the review applicant who first came to Australia sponsored by her uncle as a visitor in 2006 and then [subsequently] married an Australian citizen of Lebanese background and migrated on an overseas partner visa.

11. She became an Australian citizen in 2012.  And since migrating on the partner visa in 2007 has travelled to Lebanon on two occasions with her family to visit her family there, firstly in 2012 and then separately in 2016.  On both occasions she [took] her children who were alive at the time with her.

12. And I note her children are comprised as follows; an 11 and a half year-old, an eight year-old and a six year-old, all healthy school aged [children].  And most recently a 19 month old severely disabled prematurely born child who I will discuss in due course.  The tribunal is satisfied that the purpose for which the visa applicant seeks the visa is a valid purpose within the sponsored family stream.

    cl.600.211(a):

13. Okay, turning firstly to clause 600.211(a); which requires the tribunal to consider whether the visa applicant has complied substantially with the conditions of any previous visas.  In this case the visa applicant has never travelled previously to Australia or indeed as far as the tribunal is aware judging by their passport to have been overseas has been outside Lebanon at all.  However, the tribunal has received evidence that one of the applicant's siblings Ahmed a 28 year-old did travel to Australia in 2009.  And the tribunal accepts that this is the case.

    cl.600.211(b):

14. Turning to the conditions that would be applied to the visa [applicant] should it be granted, which is subclause 600.211(b).  Firstly, condition 8101 is that the visa applicant must not work whilst in Australia.  The tribunal took evidence from the visa applicant and he maintains he continues to be employed by the employer as indicated in the document on file at folios 34 and 36 of the Departmental file.

15. The main employment [is that] he works as a spray painter and a panel beater and has done so since 2011.  And that document indicates that he would be entitled to 45 days paid leave and it is dated 4 September 2017.  And the visa applicant indicated today that that situation is still valid and that he does seek to travel to Australia before the European summer when his employment becomes busier.

16. I accept that the visa applicant has gainful employment in Lebanon which provide a strong incentive for him to return.  The other conditions to which the visa would be subject are; 8201, that he must not engage in study or training for more than three months.  Condition 8503, that he is not entitled to a substantive visa other than a protection visa while remaining in Australia.  And 8531, that he must not remain in Australia after the end of his permitted stay.

17. The tribunal has considered all of these conditions in conjunction with considering all other relevant matters, subclause 600.211(c).

    600.211(c):

18. In this regard the tribunal has considered the visa applicant's extensive family in Lebanon.  I accept the applicant's evidence today that the visa applicant lives in Lebanon in the family home with his mother and father.  The visa applicant is 24 years old and he lives at home with his 21 year-old, 23 year-old and 28 year-old brothers.  There is also one sister that lives at home, a 19 year-old sister.  And two further sisters who are married and living independently and one of those sisters is pregnant with her first child due imminently and the other has two children or shortly will have two children.

19. The tribunal [notes] that the review applicant who the visa applicant seeks to visit is the first of the children to have an extensive family.  I note her children I have described earlier in these reasons.  But I also note at this stage that the review applicant is no longer in a position to travel to Lebanon to leave their children apart from the expense and difficulty involved in doing that, travelling with a family of six people would be very expensive.  I note that the visa applicant's 19 month old child, as stated earlier, is severely disabled and unable to travel overseas.

20. The disabled condition of the review applicant’s [youngest child] is associated with being at 26 weeks gestation.  He is not mobile, not independently mobile, has severe vision problems, is required to be fed permanently by a tube, and also may require oxygen intermittently.  These medical conditions are fully described in a document provided to the tribunal today dated 12 December 2017 by a social worker at the Williamson Children's Northern Hospital.  Also provided is a Northern Hospital medication profile required by the child prepared on 9 December 2017.  As well as a physiotherapy report dated 6 July 2018, a vision assessment report dated 2 August 2018, and a children's hospital discharge summary dated 27 September 2017 and a Department of Education and Training report dated 9 January 2018.

21. Based on the credibility of the applicant and her husband and her evidence before me I am satisfied that their life is very difficult caring for their four children, in particular the young child for the reasons I have described.  And in particular I note that a significant operation is planned for the child in a further month.  And I accept the visa applicant's husband's evidence, that his job is in jeopardy Due to time he has been absent from work to care for the child].  And this family have a genuine need for a new and close relative to assist them for a short period.

22. [In addition] there are also strong family reunification reasons that cause me to think it appropriate for the review applicant to be reunited with the visa applicant for a short period.

23. Finally, I note that the review applicant understands they may be required to provide a security deposit.  And all parties appeared genuinely committed to a genuine temporary stay by the visa applicant in order not to jeopardise future family visits.

24. The tribunal has also considered all factors associated with migration by young males from Lebanon and considers that for the reasons described earlier the factors indicating that this visa should be granted grossly outweigh any perceived factors with respect to the visa applicant not choosing to return to Lebanon.

25. For these reasons the tribunal is satisfied that the visa applicant does genuinely intend to stay temporarily in Australia for the purpose for which the visa is to be granted and finds that the requirements of clause 600.211 are met.

26. Therefore the decision of tribunal is as follows, the tribunal remits the application for a visitor class FA for reconsideration with the direction that the visa applicant meets the following criteria for a subclass 600 visitor visa; clause 600.211 of schedule 2 to the Regulations.

27. And that concludes my reasons for decision and decision in this matter.

    END OF ORAL DECISION

    DECISION

28. The Tribunal remits the decision under review with the direction that the applicant meets the following criteria for a subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Ian Garnham
    Member