Seifeddine v Minister for Immigration and Multicultural Affairs

[2024] ARTA 848

SEIFEDDINE (MIGRATION) [2024] ARTA 848 (16 DECEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Ali Seifeddine

Visa Applicants:  Mrs Badia  Seifeddine Dit Souss
Mr Ali  Hassan

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2319996

Tribunal:Senior Member M Bourke

Place:Melbourne

Date:  16 December 2024

Decision:The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order that the first named 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 16 December 2024 at 4:42pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – combined review application with an unrelated person – no opportunity to remedy the defect within the timeframe limitations – no jurisdiction in relation to one visa applicant – previous compliant visit – balance of family and commitments in Lebanon – decision under review remitted 

LEGISLATION

Migration Act 1958 (Cth), ss 65, 338, 347, 348
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.224; rr 4.02, 4.12

STATEMENT OF REASONS

NOTICE OF APPLICATION NOT PROPERLY MADE

1. An application was received by the Tribunal on 7 December 2023 for review of decisions made by delegate of the Minister for Home affairs on 27 November 2023 to refuse to grant two visa applicants in separate decisions a Visitor (Class FA) subclass 600 visas.

2. The Tribunal has found that it does not have jurisdiction to review the application received by the Tribunal on 7 December 2023 to review a decision of the delegate dated 27 November 2023 in relation to a decision to refuse an application of the visa applicant, Mr Ali Hassan, a visitor visa (Class FA) subclass 600 made under the Tourist stream .

3. The Tribunal must review a decision under the Migration Act 1958 (Cth) (the Act), if an application is properly made under s.347 and s.347A of that Act: s.348(1). Sections 338 and 338A of the Act and reg. 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable migration decisions and reviewable protection decisions, and the circumstances in which they are reviewable. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions.

4. S.338(5) states that the decision to refuse to grant a non-citizen a visa is a Part 5 reviewable decision if (a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and (b) the non-citizen, was sponsored or nominated as required by a criterion for the grant of the visa.

5. The visa applicant (who is listed as the second named visa applicant in the review application) applied for a combined review with the application for review lodged by his wife, the first named visa applicant.

6. Reg. 4.12 sets out the requirements for combined applications for review before the Tribunal. Reg. 4.12 requirements apply where (a) a person has nominated or sponsored two or more members of the family unit in respect of their primary applications for visas of the kind referred to in s.338(5) of the Act; and (b) the Minister’s decisions in respect of two or more of the members of that family unit are that a visa not be granted; and  (c) the Minister’s decisions are Part 5-reviewable decisions; the nominator or sponsor may combine his or her applications for review by the Tribunal of the Minister’s decisions in respect of each of the member of the family unit to whom the Minister refused to grant a visa. The review applicant is not a relative of the second named visa applicant, and has not sponsored the second named visa applicant in relation to the visa. Therefore the requirements of reg.4.12(4) do not permit that the review applicant combines the application for review of the second named visa applicant with the application for review of the first named visa applicant.

7. In the circumstances of this review, the second named visa applicant has been included in the combined review application, where the requirements of reg. 4.12(4) for a combined review applications do not apply.

8. The Tribunal is cognisant of the fact that the Tribunal did not advise the review applicant at the time the application for the review was lodged of the potential that the Tribunal may not have jurisdiction to determine a review in relation to the second named visa applicant as part of a combined review application. The Tribunal is cognisant that the failure to notify the review applicant of the potential jurisdictional error at the time of application for review has deprived the review applicant of the opportunity of remedying the defect within the timeframe limitations for applying for review.

9. The Tribunal notified the review applicant of the potential jurisdictional issue which may impact the validity of the review of the second named visa applicant on 2 December 2024.

10. The review applicant’s representative made written and oral submissions to the Tribunal, that the Tribunal could exercise its discretion to assess the review of the second named visa applicant as if the primary visa application had been made under the Sponsored Family stream, and not under the Tourist stream. The representative submitted that departmental policy provides for discretionary flexibility in relation to sponsorship requirements to resolve jurisdictional and compliance concerns. The representative referred to a previous decision of the Tribunal (differently constituted) in this regard.

11. The Tribunal carefully considered the submissions of the representative. The Tribunal is not bound by Departmental policy or a decision of the Tribunal. There was no submission provided that demonstrated the basis of any power the Tribunal would have to consider an application for review on the basis that the Tribunal assumed a substitution of a different application for the visa to resolve a jurisdictional issue. The Tribunal considers it is constrained by the legislative framework, and does not have the power to assume a different visa application was made by a visa applicant to overcome a defect in the application for the visa, or the application for review.

12. The Tribunal has carefully considered the submissions made, but is of the view it is unable to accept that a valid application for review was made by the second named visa applicant, as a combined application for review was unable to be lodged pursuant to the requirements of reg.4.12.

13. As the delegate’s decision is not reviewable in these circumstances, it follows that the application for review was not properly made, and the Tribunal cannot review the decision in relation to the second named visa applicant.

    APPLICATION FOR REVIEW

14. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 November 2023 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (Cth) (the Act).

15. The first named visa applicant applied for the visa on 18 November 2023. 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.

16. The Tribunal had regard to its objectives and obligations in relation to the conduct of the hearing. The Tribunal invited the review applicant to attend the hearing by video. The Tribunal invited the review applicant to arrange for the visa applicants to attend the hearing by video.

17. The review applicant appeared before the Tribunal on 16 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and her husband who attended the hearing by video from overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

18. The review applicant was represented in relation to the review. The representative attended the hearing by video.

19. For the following reasons, the Tribunal has concluded that the decision under review in relation to the first named visa applicant is set aside and the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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 the purpose for which the visa is granted.

21. In the balance of this decision record, the first named visa applicant will be referred to as the visa applicant.

22. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted, namely a family visit.

23. In the present case, the visa applicant seeks the visa for the purpose of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

24. Cl.600.211(a) : – In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted, in this case a family visit, the Tribunal must consider whether the visa applicant has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa.

25. The Tribunal is satisfied that the visa applicant has previously travelled to Australia in 2014 as the holder of a visitor visa, and complied substantially with the conditions of that substantive visa, and returned to Lebanon before the expiration of that visa. The Tribunal gives positive weight to the evidence that the visa applicant’s previous substantial compliance with the last substantive visa held, in its assessment of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose of the family visit.

26. Cl.600.211(b) : – the Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the Tourist stream, sponsored in accordance with cl.600.224, would be subject include condition 8101 - must not work in Australia; condition 8201 - must not engage in study or training in Australia for more than three months; condition 8503 - not entitled to a substantive visa, other than a protection visa, while remaining in Australia; and condition 8531 - must not remain in Australia after the end of the permitted stay.

27. The Tribunal has considered the written and oral evidence of the visa applicant, and her husband, and the submissions from the representative. The Tribunal has considered the age of the visa applicant. The Tribunal is satisfied the visa applicant does not intend to work, or study or train whilst in Australia.

28. The Tribunal is satisfied the visa applicant wishes to travel to Australia to spend time with her brother and his family, and to spend time with her two other brothers, and her sister and their families. The Tribunal accepts that the visa applicant wishes to travel with her husband (who is the second named visa applicant in this review) if he is granted a visa. The Tribunal accepts the evidence of the visa applicant that she does not intend to apply for another visa, or apply for an extension of her visitor visa, when she is in Australia as the holder of the visitor visa.

29. The Tribunal accepts the oral evidence of the visa applicant that she does not want to remain in Australia for more than one month. The Tribunal accepts the written and oral evidence before it that the visa applicant intends to return to Lebanon, to prepare and celebrate the pending engagement and marriage of their only son in 2025. The Tribunal accepts that the visa applicant has many family members in Lebanon, including their married daughters and their grandson. The Tribunal is satisfied that the visa applicant cares for her grandson while her daughter goes to work, and has a strong and supportive bond with her grandson who has physical and psychological special needs. The Tribunal is satisfied that the visa applicant’s daughter and grandson are dependent upon her for ongoing care and support.

30. The Tribunal is satisfied that the visa applicant is financially supported by her husband and is financially secure in Lebanon.

31. The Tribunal is satisfied based on the information provided by the visa applicant that during the peak of the volatility in Lebanon the visa applicant moved to the north of Lebanon for safety, but after the ceasefire the visa applicant and her husband have returned to their home. The Tribunal has considered the submissions provided by the review applicant’s representative as to why the review should be dealt with priority based on the insecurity and volatility in Lebanon. The Tribunal accepts that the outbreak of hostilities has substantially subsided, and the issue of security and safety is not currently a relevant factor in assessing whether the visa applicant will return to Lebanon before the expiration of her visa.

32. The Tribunal is satisfied based on the written and oral evidence before it that the visa applicant has family, community, social and financial ties to her home country that are powerful incentives for her to return before the expiration of her visa. The Tribunal accepts the evidence of the visa applicant that she intends to depart before the expiration of the visa.

33. The Tribunal accepts the evidence of the visa applicant that she genuinely intends to comply with the conditions to which the visa would be subject. The Tribunal gives positive weight to its assessment of the visa applicant’s intention to comply with the conditions of the visa, in its assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit.

34. Cl.600.211(c) : – the Tribunal has also considered all other relevant matters. The Tribunal is satisfied that the review applicant’s daughter is getting married in late January 2025, and the review applicant hopes that the visa applicant, his sister, and her husband can be present for the wedding. The Tribunal also accepts the evidence of the review applicant that his sister, the visa applicant and her husband were very good to him when he has visited Lebanon and he wishes to repay the hospitality and generosity. The Tribunal accepts the evidence of the review applicant that he will be responsible for the visa applicant and will make sure his good name with the Department remains intact, by ensuring she complies with the terms of the visa, and departs before the expiration of the visa.

35. The Tribunal gives positive weight to these other relevant matters in its assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit.

36. Conclusion: – 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 the visa applicant meets the requirements of cl.600.211.

    DECISION

37. The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    – cl.600.211 of Schedule 2 to the Regulations.

    Date(s) of hearing:  16 December 2024

    Representative for the Applicant:           Mrs Olia Kamereddine (MARN: 1574752)