Zabadi (Migration)

[2017] AATA 1301

Zabadi (Migration) [2017] AATA 1301 (12 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Farie Zabadi

VISA APPLICANT:  Mr Ali El Zebdeh

CASE NUMBER:  1621928

DIBP REFERENCE(S):  not recorded PPT 509561

MEMBER:Linda Holub

DATE:12 July 2017

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 12 July 2017 at 4:29pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 – Tourist stream – Genuine temporary entrant – Two previous visa refusals – Compliance by family members – Incentives to return

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.221, cl 600.222

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 19 October 2016 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 28 September 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 visa applicant’s expressed intention to visit Australia is genuine.

5. The review applicant appeared before the Tribunal on 29 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant: 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.

   BACKGROUND

7. The review applicant was born on 1 January 1980.  He originally came to Australia on a partner visa.  He became an Australian citizen in 2006.  The review applicant operates a business with two cafes/restaurants.  After the hearing, he submitted financial statements and his Company Tax Return for the 2016-2017 financial year for his company which show a profit of $135,714[1].  The review applicant and his wife have five children and live in a four bedroom house on which they have a mortgage.  They have two cars and a motor-bike.  He has 10 siblings, of whom, four brothers and one sister live in Australia, one lives in Saudi Arabia and the rest live in Lebanon.

   [1] AAT file, folio 107.

8. The visa applicant is the review applicant’s father and he was born on 31 December 1952.  He lives in a suburb of Tripoli.  The review application states that he was born in the Palestinian Territories (West Bank/Gaza).  At hearing, the review applicant stated that this is not correct.  He stated that the review application was submitted by the visa applicant’s agent in Lebanon. The review applicant stated that his grandparents moved from Palestine in the late 1940’s at the time of the creation of the state of Israel.

9. The visa applicant has his own furniture business which he has operated for approximately 35 years.  Because his father is not a Lebanese citizen the business is registered is his mother’s name[2].  His father also has two factories/warehouses and the equivalent of $28,000 in savings[3].

   [2] AAT file, folio 76.

   [3] AAT file folio 74.

   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 childen and grandchildren. 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)).  The visa applicant has not previously travelled to Australia.  He has been refused Visitor visas on two previous occasions.

13. The review applicant submitted that he previously sponsored a number of other relatives, including brothers, sisters and his mother.  They have come on various visas.  Relevant to this application, his mother was granted a Tourist (Long Stay) visa sub-class TN-686 on 5 May 2004.  She arrived in Australia on 29 May 2004 and departed on 22 July 2004 on the day of the visa’s expiry.  More recently, his younger brother was granted a Visitor visa sub-class FA-600 on 7 September 2016.  He arrived in Australia on 15 September 2016 and left on 13 December 2016.

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)):  

    ·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. The review applicant stated that he will be paying his father’s airfare and living expenses, as is customary in his culture.  His father will mainly stay with him but also with his siblings and they intend for the whole family to have a week’s cruise together.

16. There is nothing in the evidence before the Tribunal which suggests that the applicant would seek to work or study during his proposed visit.  The Tribunal put significant weight on his inability to speak English and his age and that he has a number of children in Australia who will be able to support him.  The Tribunal is satisfied she will comply with conditions 8101 and 8201.

17. Condition 8503 refers to entitlement and does not require compliance.

18. The review applicant stated that the incentives for his father to return to Lebanon are the family business, his wife, and his other children, the youngest of whom is only 21 years of age.  He also noted that given the significant degree of family travel to and from Australia he would not want to jeopardise that. 

19. Both of the visa and review applicants stated that the visa applicant has not experienced any problems in Lebanon as a result of the political/security situation or because of his religion or ethnicity.  They also both confirmed that he is in good health and does not require any medication.

20. With regard to condition 8531, the Tribunal put significant weight on the fact that the review applicant’s mother and brother have travelled to Australia and returned as required by their visa conditions as.  In these circumstances, the Tribunal was satisfied that the visa applicant will not remain in Australia after the end of his permitted stay as this would jeopardise the family’s ability to continue to travel to Australia in the future.  Further, it is the Tribunal’s view that the incentives, which exist for the visa applicant to return to Lebanon referred to above are sufficiently strong for him to do so.

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

22. 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

23. 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