Rabah (Migration)

[2021] AATA 821

Rabah (Migration) [2021] AATA 821 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rabih Rabah

VISA APPLICANT:  Mr Rachid Rabah

CASE NUMBER:  1900629

HOME AFFAIRS REFERENCE(S):          BCC2018/4337147

MEMBER:Anne Grant

DATE:24 March 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 24 March 2021 at 4:20pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – family and full-time employment in home country – no intention to remain or migrate – sponsor’s capacity to sponsor other family members in future – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 1 November 2018 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 4 October 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 (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 they were not satisfied that’s the applicant intended to stay temporarily in Australia.  

5. The review applicant appeared before the Tribunal by video conference on  24 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant who participated by conference telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) 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 Australia to see family and also for tourism. 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 visa applicant has not travelled to Australia or any other country and so consideration of this factor in this case is of limited relevance.  It is noted that his uncle (the sponsor and review applicant) is a permanent resident of Australia.

11. 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.

12. Based on the written and oral evidence given by the visa applicant, I am satisfied that the visa applicant is employed full time at the Gas Station and Store in Ain Al Dahab.  He is now assistant manager of the store and earns USD$1,000 per month.  I accept the visa applicant’s evidence that he has no debts and is in a strong financial position.  He lives in the family home owned by his parents.

13. Based on the oral and written evidence before me, I am satisfied that the visa applicant has family and employment interests in Lebanon which provide an incentive for him to return to his country before the expiry of his visitor visa.  I am also satisfied that the visa applicant intends to comply with the conditions of the visa.

14. The Tribunal has also considered all other relevant matters (cl 600.211(c)). Based on the evidence given by the visa applicant and the review applicant at hearing, I am satisfied that they are aware that in the event the visa applicant ‘overstayed’ his visa, his uncle would most likely encounter consequences which would affect his capacity to sponsor other family to visit Australia in the future and that both the applicants view such an outcome as extremely serious.  I accept that the visa applicant does not intend to endanger his uncle’s reputation with Australia’s migration authorities and does intend to stay in Australia for a maximum of six weeks before returning to his employment.  The visa applicant also gave evidence that although there are economic and social hardships in Lebanon, he is largely insulated from them because he lives in a remote part of the country, has a good job and his parents own their own property.  He wants to visit Australia to see the country and his uncle and cousins, but he has no desire nor intention of remaining in Australia or migrating here.

15. Based on the evidence before me I am satisfied that the visa applicant generally intends to stay temporarily in Australia for the purpose for which the visa is sought. 

16. 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

17. 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.

    Anne Grant
    Member