Saoud (Migration)

[2021] AATA 2993

Saoud (Migration) [2021] AATA 2993 (29 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Aymat Fawzi Saoud

VISA APPLICANT:  Mr Bilal Saoud

CASE NUMBER:  1923164

HOME AFFAIRS REFERENCE(S):          BCC2019/3745453

MEMBER:Linda Holub

DATE:29 July 2021

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 29 July 2021 at 2:59pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant family visits – applicant’s growing business in Lebanon – many relatives in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 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 9 August 2019 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 25 July 2019. 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 clause 600.211 because after considering the information provided, the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out.

5.    The review applicant appeared before the Tribunal on 21 July 2021 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. 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 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 she or the witness 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.

6.    The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

BACKGROUND

8.    The review applicant is a woman born in 1983. Department records indicate that she first came to Australia in September 2002 as a holder of a Subclass 309 Partner (Provisional) visa. She was granted a Subclass 100 Partner (Migrant) visa in February 2003. She became an Australian citizen by grant in May 2005.

9.    The visa applicant who is the review applicant’s brother is a Lebanese citizen born in 1992 in Mechmech City, Akkar province, 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 his sister, his three brothers, their spouses and children and to visit his three maternal uncles and aunts and their families. At the time of application, the visa applicant also stated that he wants to celebrate Eid with them as it is their most significant event. In his application he wrote that he also plans to tour briefly around Melbourne and other tourist attractions in Victoria with his siblings. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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. Department records indicate that the visa applicant has not previously travelled to Australia. He has not provided any evidence of travel to other countries.

5. In her sponsorship form the review applicant states that she has sponsored another brother for a visitor visa. Ahead of the hearing the review applicant emailed the Tribunal with information about her two brothers she previously sponsored. She wrote that the first brother was sponsored in about 2004 and that he stayed here for the duration of his visa and departed before his initial entry permit expired. The second brother she sponsored arrived in Australia, on a Visitor visa, arrived in Australia on or about 12 December 2017 and departed on 7 March 2018. She wrote neither of her previously sponsored brothers overstayed their visas or changed their status while onshore. She wrote they fully adhered to the conditions of their visas and respectfully departed before the expiration of their entry permit. Departmental records confirm that two of the review applicant’s brothers have travelled to Australia and complied with their visa conditions.

6. 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.

7. At hearing the review applicant states that she is no longer married to the person who sponsored her Partner visa. She stated that she has remarried, and she and her husband have five daughters aged 12, 10, 9 and 6-year-old twins.  She stated that she does home duties and cares for her children and that her husband operates a grocery store. They live in their own house which has three bedrooms.

8. Information provided in regard to the visa applicant, is that he is a self-employed concrete renderer and that his business dealings are done in cash as per the norm in many villages around his town.

9. The review applicant stated that the visa applicant has been a concrete renderer since around 2015. She stated that prior to that he worked with their father who was also a renderer. She stated that if he can visit Australia another brother can manage the business in his absence. She explained that over the winter in Lebanon (from around November to February) his business is less busy because of the cold.

10. The review applicant stated that in Lebanon most people get paid in cash and that they keep their savings in their houses. She stated that the visa applicant does the same. She stated that even before economic problems in Lebanon most people, especially those living in the country, rarely kept money in the bank. She stated they could have put money into a new account, but she stated that it would be obvious that the account was opened for the purpose of supporting the visa application and would not be very convincing.

11. In relation to any incentives for the visa applicant to return to Lebanon after a visit to Australia, the review applicant stated that the visa applicant is very involved with the family and in supporting his father and younger sister since their mother passed away in 2016. She stated that Lebanon is his country and he has worked very hard to develop his own business. She stated that she does not know if he has someone in mind that he may wish to marry but, in any event, she stated that there are cultural sensitivities regarding such issues.

12. The visa applicant confirmed he lives with his family in his own home and that he is concrete renderer. He stated that he has his own business and has a couple of teams working for him. He stated they does some Council work as well as private work. The visa applicant stated that his brother will run the business in his absence.

13. In relation to incentives for him to return to Lebanon he stated he has three reasons he wants to return, namely his family, his business, and his house. The visa applicant elaborated that he has worked very hard over the past six years to get the business to the level it is at. In addition, he stated that he has a love interest in Lebanon, but it is early days.

14. The visa applicant stated he would like to stay in Australia for three months if he is granted a visa.  He told the Tribunal the best time to come would be during the winter period in Lebanon; at the end of the calendar year because the business is less busy at that time. He stated that the reason he would like to stay that long is because he rarely has holidays and once he comes to Australia, he would like to stay and enjoy the beauty of the country and spend time with his siblings and nieces and nephews.

15. The Tribunal heard consistent evidence that the review applicant and her siblings will pay for the airfare of the visa applicant and that he will stay with her and other family members and he would bring his own spending money.

16. The Tribunal heard consistent evidence that the visa applicant has not experienced any problems in Lebanon because of his religion/ethnicity or for any political/security situation. The review applicant stated that the family home is in the north and they have had no problems.  She stated that most of the villages very peaceful and people are left alone.

17. The Tribunal was told that the visa applicant would not work or undertake study or training if the visa applicant is able to come to Australia. The Tribunal was told that if he come here, his intention is to have a holiday.

18. The Tribunal noted that a letter of support had been provided from the Mayor of Mechmech Municipality dated 13 July 2021 stating that the visa applicant owns a property and has worked as a renderer for four years. The Tribunal indicated that it had some concerns regarding the lack of other supportive evidence regarding the fact that he owns a business. The Tribunal asked if other written evidence could be provided, perhaps from clients of the business. The Tribunal provided until 28 July 2021 for any additional information to be provided.

19. Following the hearing the Tribunal was provided with additional letters substantiating the visa applicant’s business as a concrete renderer.

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

Findings

1. The Tribunal considered the review applicant and visa applicants to be credible witnesses.  They presented the evidence in a straightforward and open manner. The oral evidence was consistent and substantiated by the written evidence.

2. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for a up to three for the purpose of visiting his sister and brothers and their families.

3. The Tribunal accepts that the family in Australia can fund the cost of the visa applicant’s airfare and that he will stay with his siblings who will also cover the cost of his living expenses while he is in Australia. The Tribunal is prepared to accept he will provide his own spending money.

4. The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia.

5. The Tribunal accepts that the visa applicant’s family in Lebanon, his house and his business provide sufficient incentives for him to return to his country of residence at the end of his permitted stay in Australia.  The Tribunal has put positive weight on the positive migration history of the review applicant and her other brothers. 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.

6. 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