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austlii:cth/MRTA/2002/6513
appellant. The Tribunal remitted the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets clauses 676.211,...
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The Migration Review Tribunal overturned a decision to refuse a tourist visa to a Jordanian man who wanted to visit his brother in Australia. The man's brother, an Australian citizen, had serious health problems that prevented him from travelling to Jordan. The Tribunal found that the visa applicant had strong reasons to return home: he owned a successful clothing business, had a wife and three daughters in Jordan, had substantial savings (over USD$100,000), and had previously visited Australia in 1993 and left on time. The Tribunal directed that the visa should be granted on the basis that the man was a genuine visitor with adequate funds, but sent the application back to the Department to check any remaining requirements.
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CATCHWORDS: Review of visa refusal - Subclass 676 - genuine visit - adequate funds
DECISION: The Tribunal remits the application made by the visa applicant for a Short Stay (Visitor) (Class TR) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the visa applicant meets the following criteria:
* paragraphs 676.221(2)(a), (b) and (c) of Schedule 2.
1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural Affairs (the delegate). Mr Mohammad M. Rai (the visa applicant), a national of Jordan, born on 9 October 1952, applied for a Short Stay (Visitor) (Class TR) visa on 8 October 2001. The delegate's decision to refuse to grant the visa was made on 8 November 2001.
2. Mr Saleh Rai (the review applicant), the brother of the visa applicant, lodged a valid application for review with the Tribunal on 30 November 2001. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.
3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
5. The criteria and policy immediately relevant to this review are:
Part 676 of Schedule 2 to the Regulations
Policy Directions Nos 1 and 2 of 1996, issued by the Minister under section 499 of the Act
Procedures Advice Manual 3: Generic Guidelines H - Visitor visas
Procedures Advice Manual 3: Schedule 4 - Public interest criteria - criterion 4011
6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.
8. The Department's visitor visa papers indicate that the visa applicant wished to visit his brother, the review applicant and his family. The visa applicant stated he is self-employed as a trader of clothes and fashion. He stated that he has sufficient funds to support his visit to Australia. Evidence submitted with the visa application included:
* A statutory declaration by the review applicant stating that he would provide necessary assistance to the visa applicant to support him;
* The visa applicant's business registration certificate stamped dated on 24 September 2001;
* A certificate from Arab bank dated 29 September 2001 stating that the visa applicant has a credit balance of USD$102479; and
* A supplementary information sheet showing the visa applicant's family composition.
9. The delegate stated that the visa was not granted on the basis that the delegate was not satisfied that a genuine visit was intended. The delegate considered that there was a real likelihood that the visa applicant will remain in Australia beyond the authorised period of stay.
10. The review applicant stated when lodging the application for review that the visa applicant has a settled life in Jordan. He has family and work commitments that would induce him to return to his country. The review applicant stated that he has not seen his brother for 9 years and is unable to travel to visit him and his family in Jordan because of his medical condition .
11. Class TR contains one visa: the subclass 676 (Tourist (Short Stay)) visa. The criteria for a subclass 676 visa relevant to the Tribunal's consideration are:
* that the visa applicant 'seeks to visit Australia ... for the purpose of visiting an Australian citizen or Australian permanent resident, who is a parent, spouse, child, brother or sister of the [visa applicant]' and 'has adequate funds, or access to adequate funds, for personal support during the visit' (clause 676.211 and paragraph 676.221(2)(a))
* 'the period of stay in Australia proposed in the application does not exceed 3 months' (clause 676.212 and paragraph 676.221(2)(b))
* the visa applicant satisfies the decision-maker that `the expressed intention of the [visa applicant] only to visit Australia is genuine' (paragraph 676.221(2)(c))
12. The Minister has issued directions under section 499 that are relevant to these criteria - Policy Direction No. 1 of 1996 in relation to `genuine visit', and Policy Direction No. 2 of 1996 in relation to `adequate funds'. Having regard to the criteria set out in the legislation and the considerations set out in those directions, the issues are discussed under the following headings:
The purpose of the visa applicant's visit, the duration of stay proposed and any other plans which the visa applicant has made for the visit, relative to the visa applicant's personal responsibilities and the financial means and earnings and the level of support assistance available to the visa applicant
The visa applicant is seeking a visa for a 3 months stay. The stated purpose is to visit the review applicant and his family. The review applicant provided a statutory declaration stating that he would provide the necessary assistance and support to the visa applicant during his stay in Australia. The visa applicant provided evidence of his financial circumstances to show that he would be able to support himself during the proposed stay in Australia.
The level of personal, financial, employment and other commitments which may induce the visa applicant to return. Circumstances which may induce the visa applicant not to return
The visa applicant is a 49 year old married man. He has a wife and three daughters aged 31, 30 and 27 years. There is no evidence on file to show whether his children are dependent on him or not. The visa applicant stated that he and his wife are owners of a company and that they trade in clothing and fashion. A certificate dated 24 September 2001 from The Chamber of Commerce & Industries, Palestine indicates that the visa applicant is a registered merchant. The certificate provided expired on 31 December 2001.
The visa applicant provided a bank certificate, which indicates that he has sufficient funds to support his visit to Australia. The visa applicant stated that his wife and daughters would stay at home while he travels to Australia. His wife will take care of his business in his absence.
The review applicant stated that he has not seen the visa applicant for 9 years and is unable to travel long distances due to open-heart surgery in May 2000. The review applicant stated that he also underwent a lumbar laminectomy at St Vincent's Hospital (date not mentioned).
The credibility of the visa applicant in terms of character and conduct. Information disclosed in the visa application or otherwise obtained which indicates a reasonable likelihood that the applicant will not abide by visa conditions. The history of compliance with or breach of immigration law by the visa applicant.
The visa applicant travelled to Australia in January 1993 on a visitor visa. The visa applicant departed Australia within the authorised period of stay.
The history of dealings with the Department of any person or persons in Australia or usually resident in Australia who supports or support the visit of the visa applicant
There is no adverse information before the Tribunal about the visa applicant or any other family members.
13. A hearing was held on 10 October 2002 and oral evidence was given by:
Mr Saleh Rai, the review applicant as well as by the visa applicant, Mr.Mohammad Rai.
14. The visa applicant was assisted by an interpreter at the hearing.
15. At the hearing the visa applicant confirmed the details of his visa application and family composition. In response to questions from the Tribunal the visa applicant stated that he had a prosperous business at Qalqileh on the West Bank with additional savings to those mentioned in the application. The visa applicant stated that he wished to visit his brother whom he has not seen for many years and that his brother cannot visit him because he is not well enough to travel such a long distance. Asked whether there would be any reason why he would overstay a visitor visa were one granted he stated that there are no such reasons. This is because he has a good business, is well off and has his wife and three children living at Qalqileh.
16. At the hearing in response to questions from the Tribunal the review applicant testified to the effect that he was not well enough to travel and that he would like to see his brother. The review applicant could see no reason why the visa applicant would overstay a tourist visa if he is granted one and pointed out that the visa applicant has visited Australia on a previous occasion and returned to his home at the appropriate time.
* The visa applicant is seeking to visit Australia for the purpose of visiting M.Saleh Rai, an Australian citizen, who is the visa applicant's brother.
* The visa applicant has adequate funds, or access to adequate funds, for personal support during the visit.
* The period of stay in Australia proposed in the application does not exceed 3 months.
* The Tribunal is satisfied that the expressed intention of the visa applicant only to visit Australia is genuine.
18. Given the findings made above, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for the visa. The Tribunal is not in a position to decide the remaining criteria.
19. The Tribunal remits the application made by the visa applicant for a Short Stay (Visitor) (Class TR) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the visa applicant meets the following criteria:
* paragraphs 676.221(2)(a), (b) and (c) of Schedule 2.
The Tribunal remitted the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets clauses 676.211, 676.212, and paragraphs 676.221(2)(a), (b) and (c) of Schedule 2 to the Migration Regulations 1994.