MEHEDDINE (Migration)

[2020] AATA 944

MEHEDDINE (Migration) [2020] AATA 944 (10 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nada MEHEDDINE

VISA APPLICANT:  Ms Rana MIHYE EL DDIN

CASE NUMBER:  1810453

HOME AFFAIRS REFERENCE(S):          BCC2018/1060731

MEMBER:Tania Flood

DATE:10 January 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 10 January 2020 at 11:00am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – attending a nephew’s birthday party – family’s migration history – visa applicant’s business commitments – responsibilities to parents in Lebanon – future family visits – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 20 March 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 5 March 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.

4. The visa was refused on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that she genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 9 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic, Arabic (Lebanese) and English languages.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

7. According to information provided in the application for a Visitor visa, the visa applicant is a single thirty-seven year old female who resides in El Minieh, North Lebanon, with her parents, sister, and two brothers. She has one brother and an aunt living in Australia. She wishes to travel to Australia for up to 3 months to see her aunt (the review applicant) and other family members. At the time of her application, she also indicated that she wished to attend her nephew’s first birthday party. She owns a hair salon in Tripoli, Lebanon, and indicated that she will return to her business after her visit.

8. The review applicant submitted a letter to the Department, dated 27 February 2018. She states that she would like to sponsor her niece for a holiday in Australia, to see the sites around Sydney, and to visit her aunts and uncle who are unable to travel to Lebanon to visit her. The letter also states that the visa applicant’s brother resides in Australia and he has not seen his sister in two years. He would like his sister to attend his son’s first birthday party.

9. The review applicant submitted a letter to the Tribunal dated 23 December 2019, repeating the information she provided to the Department in relation to the visa applicant’s reasons for travelling to Australia.  The review applicant states that the visa applicant has a lot of commitments in her home country; she has been working hard for eleven years, running her own salon, which has become very popular in her area. She has a regular income, and has two employees. The letter states that the visa applicant would like to take time off to go on a holiday to visit her relatives in Australia.

   Tribunal Hearing

10. The review and visa applicants provided consistent and credible evidence to the Tribunal which is summarised as follows:

11. The review applicant is married and has five children all living at home.  She does not work but her husband has remained employed with the same cleaning company for twenty five years.  The couple own two properties.

12. The visa applicant is the review applicant’s niece.  She is single and has no children.  She lives with her family – her parents and siblings, in their family home in El Minieh.  She has one brother in Australia.

13. The visa applicant’s parents do not work but she and her two brothers are employed.

14. The visa applicant has operated her own beauty salon in Tripoli for about ten years.  It is a successful business and she has two long term employees.

15. The visa applicant previously visited Australia for about 3 months and complied with the conditions of her visa.  At that time her business was not yet established.  If she is granted a second Visitor visa she can only visit for about one month as she cannot leave her business for too long.

16. The visa applicant has savings of approximately USD$20,000 and can finance her own travel to Australia.  The review applicant and other family members will provide her with accommodation.

17. The visa applicant is a Sunni Muslim and reports having no problems in Lebanon for that reason.  She claims to have no political involvement and experiences no other problems in her daily life.

18. The visa applicant will return to Lebanon after a short visit to Australia because she has a successful business there and the majority of her immediate family, including her parents and four siblings, are there as well.  In addition, her parents are planning a visit to Australia to spend time with her brother and his young children and she will not jeopardise their ability to do so.

19. The review applicant is prepared to provide a security bond if required and indicated she is aware of the implications of doing so.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

21. 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.

22. 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)).

23. The review applicant first arrived in Australia on 1 October 1994 as the holder of a Partner visa (BC-100). She was granted Australian Citizenship on 27 February 1997.

24. The visa applicant has previously visited Australia on one occasion. She was granted a Visitor visa (UL-679) on 28 September 2007, sponsored by her aunt. She arrived in Australia on 10 November 2007 and departed on 7 February 2008 before her visa ceased.

25. The visa applicant’s brother was granted a Prospective Marriage visa (TO-300) on 15 May 2015 and arrived in Australia on 11 June 2015. He was subsequently granted a Combined Partner visa (UK-820/BS-801) on 10 May 2019.

26. The visa applicant’s brother-in-law and three aunts have previously visited Australia as holders of Visitor visas (FA-600). All family members departed before their visas ceased.

27. 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.

28. The Tribunal accepts on the available evidence, including documentation and bank statements in respect of the visa applicant’s business, that the visa applicant has no need to, and will not work if she is granted a Visitor visa to undertake a short visit to Australia.  She has produced proof of the various qualifications she has obtained in Lebanon relevant to her business and has successfully operated her business for ten years with her existing skills.  The Tribunal is satisfied that she will not engage in study or training in Australia if she is granted a Visitor visa.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if the visa is granted.

29. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia.

30. The Tribunal is satisfied that the visa applicant’s business is an incentive for her to return to Lebanon.  She has a long lease in place and has long term employees and her commitment to the business is evidenced by her intention to only want to visit Australia for about one month.  In addition, the majority of the applicant’s family, with whom she enjoys a close relationship and lives with, reside in Lebanon.  During the hearing she indicated that she is the eldest child living at home and assumes a level of responsibility for her parent’s upkeep.  The Tribunal considers her business and family ties in Lebanon far outweigh any incentives she may have to remain in Australia and will induce her to return home after a short visit to see relatives.

31. The Tribunal acknowledges the delegates concerns in respect of the security situation in Lebanon but has placed weight on the family’s migration history to date.  The review applicant, the visa applicant and her brother have all demonstrated a commitment to upholding Australia’s immigration law as have various other family members who have visited Australia in the last ten years and all returned home before their visas ceased. 

32. In addition, it is claimed, and the Tribunal accepts, that the visa applicant’s parents are also looking forward to visiting their son and his young children, the youngest which they have yet to meet, in Australia in the future.  The Tribunal considers these circumstances provide an added incentive for the visa applicant to abide by the conditions of her visa.  The Tribunal has also placed weight on the review applicant’s willingness to provide a security bond in order to facilitate the grant of the visa.

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

34. 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

35. 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.

    Tania Flood
    Member