Terezian (Migration)

[2019] AATA 5373

Terezian (Migration) [2019] AATA 5373 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sirwart Terezian

VISA APPLICANT:  Mr Jacques Hollokjian

CASE NUMBER:  1911277

HOME AFFAIRS REFERENCE(S):         CLD2019/30349277 Not Recorded

MEMBER:Moira Brophy

DATE:9 August 2019

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 09 August 2019 at 1:09pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting mother – mother’s limited ability to travel – intention to comply with visa conditions – incentive to return to home country – work commitment – ties to countries outside Australia – past immigration history – credible witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 Immigration on 11 April 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 March 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 Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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 applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 7 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Jacques Hollokjian. The Tribunal hearing was conducted with the assistance of an interpreter in the Armenian and English languages.

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

   BACKGOUND

7. The visa applicant is a 42 year old national of Lebanon currently residing in United Arab Emirates where he has worked since September 2015. He is employed as a hair stylist and has been employed in the same business for four years. He is self-funded for this travel.

8. The primary review applicant is the mother of the visa applicant and an Australian Permanent Resident.

9. In support of his application of visitor visa, the visa applicant provided the following to the Department:

   ·A letter from Dr Philip D Cremer, North Shore Vertigo and Neurology Clinic dated 24 October 2018.

   ·A letter dated 9 March 2019 from Mr Raffi Mavlian.

   ·A letter dated 5 May 2019 from Mr Raffi Mavlian.

   ·Royal North Shore Hospital discharge summary for Siwart Terezian dated 11 September 2018.

   ·Letter from Dr Kate Ahmad, Neurologist Royal North Shore Hospital dated 7 May 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his mother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12. 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)).

13. At the time of hearing the visa applicant told the Tribunal that he had not previously travelled to Australia. The visa applicant said he has travelled to Europe including Germany, to the Ukraine and to Cyprus. He originally came from Lebanon so he has travelled there and to Armenia on many occasions. He has complied with the terms of the visas he has been granted. He has not been refused a visa to any country other than Australia.

14. 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.600.611(2),(3)and(4)):

    ·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.

15. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given as to why the visa applicant was seeking to come to Australia to visit his mother. His mother had come to Australia in 2015 after having married her now husband. She has been back to Lebanon on one occasion in June 2017 but is now not able to travel. The review applicant has been diagnosed with an aggressive form of supranuclear palsy. According to medical evidence provided from her treating neurologist Dr Kate Ahmad the condition is both aggressive and life limiting. The Tribunal accepts it is the intention of the visa applicant to visit his mother. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

17. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that her son had not been to visit her in Australia. She stated she wanted to spend time with him. She stated it was difficult for her and her husband to go to Lebanon because of her failing health and the costs involved.

18. The review applicant gave evidence that the visa applicant wants to come to Australia for one month. The visa applicant told the Tribunal that he would stay for one month at the longest. The step son of the review applicant told the Tribunal that they were currently undergoing assessments to arrange for the review applicant’s long term care needs and it was important that the biological children of the review applicant were involved in that process. That purpose could best be served by the visa applicant being able to visit his mother and to have discussions with her family in Sydney as to her long term care.

19. The Tribunal asked the review applicant what incentives the visa applicant has to return to his home at the end of his permitted stay in Australia.

20. The review applicant responded that his incentives to return are his job and his sister and her children in Lebanon. He has his sister and her three daughters in Lebanon. He is in frequent contact with his sister and returns to Lebanon to see them very often. There is only the review applicant in Australia. When asked what would happen if he comes here, changes his mind and does not want to return to his work in Dubai, he responded that he loves his work and his life there. He said that would draw him back.

21. The Tribunal has considered the evidence given by the applicant especially the fact that while he works in Dubai he is on a sponsored visa to work there. He does not have a permanent visa. His sister is in Lebanon with her children. The applicant told the Tribunal he owns a house in Dubai and land in Armenia. He has ties with three countries but no apparent strong ties to any one country. His skills as a hairdresser are skills that could travel with him and he could dispose of his property assets and have the proceeds transferred to him wherever he was. While the Tribunal has struggled with the fact his ties outside Australia are not strong, the Tribunal accepts this is an unusual situation. The Tribunal accepts the applicant is law abiding and that has been demonstrated by his adherence to visa conditions when he has visited other countries. The review applicant’s step son said it was important the review applicant’s family members were able to come and visit her and it was understood that could only happen if they complied with the conditions of any visa they were granted.

22. The Tribunal has considered other relevant matters including the evidence the review applicant and her husband live in social housing and are dependent on the review applicant’s husband’s age pension. They have no other income. The Tribunal was mindful of these circumstances and accepts their evidence that if the Department requires a security bond they were not in a position to provide one. In the particular circumstances of this case the Tribunal does not consider that to be a reason to not grant the visa.

    Findings

23. Having considered all the evidence, the Tribunal is of the view that the visa applicant and the review applicant are credible witnesses. The Tribunal accepts that the visa applicant has a strong commitment to his work and to his sister and her daughters and that this would provide a strong incentive for him to return to his home. The Tribunal accepts that he has the financial resources to pay for his trip to Australia. The Tribunal accepts that he does not intend to work, study or undertake any training in Australia. The Tribunal places considerable weight on the fact that he has only applied to visit in the context of his not having been to visit his mother in Australia and her medical diagnosis.  

24. The Tribunal accepts that the review applicant’s step son will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that her family members are able to visit her in Australia and that she will ensure that the visa applicant complies with the conditions of his visa so as not to jeopardize his and other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of his visa.

25. The Tribunal accepts that the visa applicant's incentives to return to his home outweigh his incentives to remain in Australia after the end of his permitted stay. The Tribunal accepts that he intends complying with the conditions of his visa.

26. 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

27. 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.

    Moira Brophy
    Member