Reda (Migration)

[2024] AATA 753

Reda (Migration) [2024] AATA 753 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr David Reda

VISA APPLICANT:  Ms Nasra Hammoud

CASE NUMBER:  2403953

HOME AFFAIRS REFERENCE(S):          BCC2024/354106

MEMBER:Linda Holub

DATE:3 April 2024

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 03 April 2024 at 3:24pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – review applicant husband and visa applicant wife – review applicant’s health and visa applicant’s security situation – strong ties to family, friends, land and home and village life – no intention to live in Australia and no partner visa application made – previous compliant travel to other countries – two previous refusals with no applications for review made – 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 2 February 2024 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 24 January 2024. 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 the delegate was not satisfied the applicant has sufficiently demonstrated that they intend only to visit Australia temporarily.

5.    The review applicant appeared before the Tribunal on 27 March 2024 to give evidence and present arguments.

6.    The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal took account of the fact that the review applicant has a number of health conditions which would have made it onerous for him to attend a hearing in person. A telephone hearing was more manageable in the circumstances.

7.    The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8.    The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages although the review applicant did not need to avail himself of the interpreter.

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

BACKGROUND

1. The review applicant was born in Australia in July 1973 and is an Australian citizen The visa applicant, who is his wife, is a Lebanese citizen born in March 1971. They married on 19 August 2019 in Lebanon.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant who is her husband. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231. In her application she wrote that she wants to visit him after he had another stroke which stopped him from travelling. She also stated that her village has been bombed many times.

3. 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)).

4. The visa applicant has not previously travelled to Australia. At hearing, the review applicant stated that the visa applicant has travelled to Turkey, Iraq and Indonesia and this is confirmed by the stamps in her passport.

5. 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.

Information provided to the Department

1. In a statement of support provided to the Department, the review applicant wrote that the parties married on 19 August 2019 and have created a life together. He states that he is currently suffering from a stroke that prevents him from travelling and that he is financially stable. He wrote that the visa applicant is concerned about his current health condition and also noted that he is worried about her safety because of the current situation. He wrote that the village in which the visa applicant resides has been bombed last word times and the neighbour’s house has been destroyed.

2. In the statement, review applicant also wrote that his wife fully understands the purpose and duration of her visit to Australia, and she is committed to abiding by the terms and conditions of the visitor visa. He stated that she has no intention of overstaying her visa or engaging in any unauthorised employment while in Australia. He stated that he will ensure that she complies with the laws and regulations of Australia during her stay. He also wrote that she is a responsible individual with no history of immigration violations or criminal activities. He assured the Tribunal that she has strong ties to her home country, including her family, friends, and their home, which gives her every incentive to return to her home country at the end of her visit.

3. The review applicant wrote that that during her intended stay in Australia, his wife will be staying with him at his home, and that he would be responsible for her accommodation, financial support, and any other expenses incurred during her visit and provided a number of relevant documents to support her application.

4. The Department was provided with a copy of the review applicant’s everyday transaction account statement for the period 1 to 29 January 2024 and a copy of the marriage certificate and identification information.

Evidence before the Tribunal

1. In a statement from the review applicant dated 17 March 2024 seeking priority processing of the review application, he wrote that they had received distressing news that the village of the visa applicant had been bombed, putting her life in grave danger. He wrote that she has been facing increasing threats and violence in her village and that the recent bombing has escalated to a critical level. He fears for her safety and well-being, and urgently needs to secure her relocation to a safe environment.

2. The review applicant provided the Tribunal with medical records showing he was admitted to hospital a number of times since 2014 and a Centrelink Statement for Disability Support Pension dated 20 March 2024 showing he is in receipt of a disability support pension and related supplements.

3. The review applicant provided further submissions on the morning of the hearing. He stated that he was writing to provide an explanation as to why he has not applied for a partner visa for the visa applicant and provided a number of documents. He wrote that they show that he recently purchased land with the intention of building a home for both him and the visa applicant in her village and stated that their plan was to create a peaceful and stable life together where they could spend the rest of their days in tranquillity. He explained that their plans have been disrupted due to the current tensions between Lebanon and Israel. The escalating situation has forced them to put their construction plans on hold until there is a more conducive environment to proceed safely.

4. The attachments provided by the review applicant, include a translated and untranslated real estate attestation showing that he and the visa applicant purchased land in the village in which she resides in mid-2023 and construction plans.

Oral evidence

1. At hearing the review applicant confirmed that he was born in Australia and is an Australian citizen. He stated that he has not worked since 2014 because of his health and that he receives a disability pension. He stated that he has five children from his previous marriage, and they help him from time to time and his 22-year-old son lives with him. The review applicant stated that he owns his own house but has no other assets. There is no mortgage on the property.

2. The review applicant stated that the visa applicant has previously been refused a Visitor visa on two occasions. He stated that he did not previously apply for review, but his health has deteriorated so on this occasion he did so, because he needs his wife here.

3. The review applicant explained that his wife had not applied for a Partner visa because she has no intention of residing in Australia. He stated that the plan is for him to build a house and live there which is why they bought land.

4. I tried to ascertain what their timeline was for him living in Lebanon. The review applicant stated that he wants to do so when things settle down. I put it to him that they have been married since 2019 and the current conflict in Gaza only emerged about six months ago. The review applicant stated that he wants to live with the visa applicant. He stated he has MELAS syndrome and that the usual life expectancy for someone with this condition is 55 years and he is now 50. He stated he wanted to go to Lebanon to live and die there. The review applicant stated that he and the visa applicant bought the land together and are planning to build and referred to the written evidence submitted.

5. The review applicant stated that he and the visa applicant were married by proxy and a few years ago spent two months together in Indonesia, but his health deteriorated while they were there. They lodged a Visitor visa application for the visa applicant, but she was refused so she returned to Lebanon, and he was forced to return to Australia alone.

6. The hearing was told that the visa applicant has never married, and she does not have any children but that she took care of her parents for many years. All her family resides in Lebanon, including her seven sisters and three brothers and their children. The review applicant gave evidence that he supports the visa applicant financially and that she also gets help from her family. He stated that she lives in her parent’s house with her sister who is divorced.

7. In relation to the incentives for her to return to Lebanon if she is granted a visa to Australia, the review applicant referred to the visa applicant’s family, her village, her village life and her memories. He stated that she has no interest in remaining in Australia because those things are very important to her, and she has no family in Australia. I put to the review applicant that her memories would surely come with her. He responded that she is 53 years of age and is very connected to her origins and that she took care of her parents in the village for many years. It is all is she has known and that she does not want to leave. He stated that he is 100% sure of this. He stated that the visa applicant’s large, extended family is important to her. He stated that she is very close to her nephews and nieces because she does not have children of her own.

8. The Tribunal was told that the visa applicant is a Muslim and has had no problems in Lebanon for any reason until the outbreak of the recent conflict in Gaza. I discussed the information provided by the review applicant that the visa applicant’s village had been bombed. I put it to him that returning to a village that has been bombed would be a strong disincentive for anyone to return. He responded that the bombings are temporary and that the conflict is not within Lebanon is temporary noting ceasefire negotiations are continuing.

9. The review applicant stated that the visa applicant speaks very little English. Only the few words he has taught her. He stated that she has no intention of working or studying if she is granted a visa to come to Australia. The Tribunal was told her health is good.

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

Findings

1. The Tribunal has considered available information regarding the current security situation in southern Lebanon. The only specific article the Tribunal was able to locate that was of direct relevance to the visa applicant’s village was an article in the Guardian, entitled ‘Everyone is leaving: bombardments drive tens of thousands from southern Lebanon’ of 10 January 2024. However, Al Jazeera, The Associated Press and other media outlets have reported about the continuing conflict on the Lebanon-Israel border and there are reports of increasing deaths.

2. The Tribunal has had regard to the fact that despite the review applicant and visa applicant having been married for close to five years, she has not applied for a Partner visa while offshore although she could have done so. The Tribunal takes the view that this supports the review applicant’s evidence that their intention is to live in Lebanon on the property they have purchased.

3. The Tribunal also has had regard to the review applicant’s medical history and the fact that he was last hospitalised for almost three weeks in October/November 2023. The Tribunal accepts that at this time for health reasons it is difficult for the review applicant to travel to spend time with the visa applicant as he has done in the past.

4. The Tribunal has considered the issue of the current conflict and bombings that have occurred around the border between Lebanon and Israel. The Tribunal accepts that this is a strong disincentive for the visa applicant to return to her home country. However, while the Tribunal accepts that there is no imminent end currently insight, the situation is temporary and has taken into account the particular circumstances of this case as well as the broader international efforts to negotiate a ceasefire and/or a resolution to the conflict.

5. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for the purpose of visiting her husband. The Tribunal accepts that he will fund the cost of her airfare and other costs and that she will stay with him while she is in Australia.

6. The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia having regard to the fact she speaks very little English and has not worked outside the home for the past 18 or so years.

7. The Tribunal puts significant weight on the fact that that all of the visa applicant’s extended family reside in Lebanon and she has no other family here. Given her age and the fact that she has no children of her own, that they provide sufficient incentives for her to return to her country of residence at the end of her permitted stay in Australia.

8. Condition 8503 refers to entitlement and does not require compliance. The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

9. 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

1. 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.

Linda Holub
Member