Osman (Migration)

[2023] AATA 2806

Osman (Migration) [2023] AATA 2806 (17 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Assia Osman

VISA APPLICANT:  Mr Bilal Ossman

REPRESENTATIVE:  Ms Emily Amal Saraya (MARN: 9904834)

CASE NUMBER:  2214413

HOME AFFAIRS REFERENCE(S):          BCC2022/1622408

MEMBER:Joseph Lindsay

DATE:17 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 17 August 2023 at 1:46pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting sisters – genuine temporary entrant and compliance with conditions – incentives to remain or return – business, building house and upcoming wedding – general economic circumstances – previous compliant travel by mother – review applicant’s offer of security bond – consequences for future applications – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, 600.222

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 7 September 2022 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 10 May 2022. 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 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 10 August 2023 to give evidence and present arguments. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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 his sister (the review applicant). This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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)). As the visa applicant has not been to Australia before, the Tribunal gives this factor no weight.

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 Tribunal received evidence that the visa applicant intends to visit Australia to visit his sisters in Australia, one of which is the review applicant. The review applicant gave evidence about her brother’s café business in Lebanon, a new house that he was building and his upcoming wedding to his fiancé.

12. The Tribunal spoke at length to the review applicant about the current economic circumstances in Lebanon. The review applicant indicated she was aware of these circumstances. The Tribunal discussed the potential for the visa applicant not to abide by his visa conditions and overstay his visa in Australia due to the very serious economic conditions currently being experienced in Lebanon. In response, the review applicant offered to post a security bond of up to $25,000. The review applicant indicated that her own mother had been to Australia and returned to Lebanon. The review applicant said that she would take full responsibility for her brother and ensure that he abided by his visa conditions. The review applicant indicated that she understood that should her brother not abide by his visa conditions that it would likely be the last time any visitor visa application would ever be approved. The review applicant indicated that she understood all of these considerations and gave an undertaking to the Tribunal that she would be responsible for her brother abiding by his visa conditions and returning to Lebanon before the expiry of the visa. She indicated that because she is the owner of her own building business, that her reputation was very important to her.

13. In consideration of the information available to the Tribunal, the Tribunal is satisfied that the factors that would draw the visa applicant to return to his home country outweigh the factors that would pull him to stay in Australia.

14. 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

15. 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.

    Joseph Lindsay
    Member