1410144 (Migration)

[2015] AATA 3379

1410144 (Migration) [2015] AATA 3379 (1 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:                   Ms Hanaa Abou Eid

VISA APPLICANT:  Ms Manal Mohamad

CASE NUMBER:  1410144

DIBP REFERENCE(S):  CLF2014/75725

MEMBER:Karen Synon

DATE:1 September 2015

PLACE OF DECISION:                  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 01 September 2015 at 2:47pm

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 26 May 2014 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 22 May 2014.  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 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 (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 she was not satisfied that the applicant genuinely intends to visit Australia temporarily.

5. An application for review was lodged with the Tribunal on 12 June 2014.  A copy of the primary decision was provided to the Tribunal.

6. No substantive submissions were received before the hearing however a letter from the visa applicant’s employer dated 12 August 2014 was received at the hearing.  Where relevant it is considered below.

7. The review applicant appeared before the Tribunal on 13 August 2014 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant via telephone from Lebanon.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.  The review applicant was represented in relation to the review.  The representative was present throughout the hearing.

8. In summary the Tribunal received the following relevant evidence from the review applicant:

   ·She is the eldest sibling in her family and came to Australia on a spouse visa.

   ·In relation to her family and their visa history:

   oHer father came as a visitor probably in about 2004 or 2005.

   oA brother Yassim, born in 1979, lives in Australia.  He first came on a visitor visa in about 2006 or 2007 for 3 months but married and stayed here.  He did not go back offshore.  He was sponsored by the review applicant.

   oA sister Nahla is married and lives in Habchit, Akkar; she has not applied to visit Australia.

   oA sister Fatima is married and lives in Beirut; she has not applied to visit Australia and has not travelled overseas.

   oA brother, Mohammad is married and lives in Habchit, Akkar; he has not applied to visit Australia.

   oA brother, Ahmed is single and lives in Habchit, Akkar.  He works as a restaurant keeper.  The review applicant’s brother applied to sponsor him to come to Australia this year.  The visa was not granted because the purpose of the visit was found not to be genuine.  This decision was not appealed.

   oA brother, Nour is single and lives in lives in Habchit Akkar; he has not applied to visit Australia and has not travelled overseas.

   oA sister, Amina is single and lives in Habchit, Akkar with her parents; she has not applied to visit Australia and has not travelled overseas.  She studied law at university finishing last year and is currently unemployed.

   oTwo younger siblings, Mirna and Hadi are both still school students who live with their parents.  Neither have been overseas or applied for visas to visit Australia.

   ·The visa applicant last came to Australia in 2006 /2007 when she was granted a 3 month visitor visa.  She was sponsored by the review applicant.  She left within the period of the visa.  She applied again in 2013 but this was refused.  This refusal was not appealed.

   ·The review applicant has sponsored both her sister and father who visited and returned to Lebanon.  She also sponsored her brother who did not return.

   ·The review applicant wants her sister to come to Australia to see her and because all her other sisters are married or at school.  Her sister Amina is not interested in visiting.

   ·The visa applicant is aged 24 and finished her schooling a long time ago before she came here the first time.

   ·Asked what the visa applicant did between 2006/2007 when she finished school and 2014 when she commenced a hairdressing course, the review applicant said she worked as a hairdresser “from time to time” but did not work and lived their parents.  Now she is studying and working as a hairdresser.

   ·The Tribunal noted the employment letter provided today is not on letterhead, has no address on it and states only that the visa applicant completed a 10 week hairdressing course and has been working as a hairdresser for several months.  The review applicant said it is like a TAFE centre.  The Tribunal noted it is self-described as a centre for “languages and computers” and appears as if it could have been written by anyone on a computer.  Asked again what the visa applicant did between 2006 and 2014 when she commenced a 10 week hairdressing course the review applicant said she did not work and lived at her parents’ house.  Confirming she was unemployed for the period the review applicant said yes.

   ·The review applicant said her sister was granted a hairdressing certificate for a 10 week course.  Prior to that she achieved up to the end of ‘complementary’ school which is the middle level of schooling.

   ·She owns no assets herself because she lives with her parents.  She is not in a relationship.  She will return to Lebanon because of her work and because her parents and most of her siblings are in Lebanon.  Also, she has come to Australia once before and returned.

   ·Invited to comment on department’s information that the non-return rate of visitors from Lebanon is high at 8 percent, the review applicant responded that not all Lebanese are alike and the visa applicant has her parents and siblings in Lebanon.   The Tribunal noted that other than having her parents and siblings in Lebanon, she has very few other incentives to return having experienced a long period of unemployment, only completed a 10 week training course and a short period of employment, no assets and she is not engaged or involved in any relationship.  The review applicant repeated that her parents and siblings are in Lebanon; only she and her brother are in Australia.

   ·The Tribunal further invited the review applicant to comment on the information contained in the primary decision that North Lebanon is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and ongoing violence due to the civil war in Syria.  The review applicant responded that the family is very far from Tripoli and the area is calm with no troubles.

   ·The Tribunal then provided to the review applicant general country information it had accessed that week from the Department of Foreign Affairs and Trade (DFAT) Smart Traveller alert that recommends people reconsider or not travel to Lebanon because of the unpredictable security situation as a result of ongoing political and sectarian tensions, that terrorist attacks could occur at any time throughout Lebanon and the security services remain on a high state of alert following a recent increase in terrorist attacks.  The review applicant repeated that their town is very peaceful and “they do not know what you are talking about in our area; it is strange”.  In their town there are no particular circumstances or problems.  Her parents and siblings tell her it is safe there.

   ·The review applicant said she visited Lebanon in 2010/2011.  She has not been since because of the children and she is very busy.  Her brother went to Lebanon for one month in 2012 and came back.

   ·The review applicant is ready to provide a guarantee to a maximum of $15,000.

9. In summary the Tribunal received the following relevant evidence from the visa applicant:

   ·She wants to come only as a visit to see her brother and sister and will go back to Lebanon to work where she is happy.  She came to Australia in 2007 and returned to Lebanon.  She has since had two visas refused.  She has applied 4 times altogether.

   ·Asked what she did on her return to Lebanon from Australia in 2007 the visa applicant said she was learning a makeup/hairdressing course and she is still doing courses.  Asked when she started this hairdressing course she said she does not recall exactly but probably in 2007.  The Tribunal asked the visa applicant about the letter which stated she commenced a hairdressing course on 3 February 2014 and noted it had no other evidence before it that she had done any other education or employment between 2007 and 2014.  The visa applicant said she was studying but not for long but now she is keen to finish the study.

   ·Asked what she had done after she returned from Australia in 2007 the visa applicant said that when she came back she did nothing but now wants to do something.  She agreed she was referring to the course at the Colossal Fame Center.

   ·She wants to come as a visitor on a small visit for 6 weeks.  She has never applied to study in Australia.  Asked what assets she has in Lebanon she responded that she does not have anything; she lives with her parents.  She is not engaged or in a relationship.  She just wants to come for a short vista and then continue her job in Lebanon.  She is very happy to stay in Lebanon.  They live very far from all the troubled areas.

10. The representative, who provided no substantive submissions to the Tribunal prior to the hearing, made the following points in an oral submission:

    ·The review applicant could not access her brother’s visa history as he is a third party and she would need to make an application under Freedom of Information.  He said he thinks he came to Australia before the visa applicant.

    ·The visa applicant’s employment letter should be seen as having much weight and value because, after many years of unemployment, the visa applicant has finally been able to secure a job and this is a great incentive to return to Lebanon.  The employment letter is from a registered college and phone numbers are provided on reference.  The Tribunal can verify the information provided in the letter via Australia’s post in Lebanon.

    ·The visa applicant’s strong family ties in Lebanon including her parents and siblings compared to her limited ties in Australia, should be seen as a great incentive to return to Lebanon.

    ·The visa applicant’s circumstances now are very similar to her circumstances in 2007 when she was granted the visa.

    ·He expects the visa applicant to be rewarded for complying with her visa conditions in 2007 and that such compliance should be taken into account.  In addition, the review applicant is prepared to pay a bond of $15,000.  This should leave no doubt as to a favourable outcome in this decision.  He invited the Tribunal to look at the situation in the particular town of Habchit and if that town has been subject to any insecurity.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In the present case, the visa applicant seeks the visa for the purpose of visiting her family This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

14. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa: cl.600.211(a).

15. The visa applicant was granted a visitor visa on 16 November 2006 valid until 8 March 2007.  She arrived in Australia on 13 December 2006 and departed on 8 March 2007; the last day of her visa validity.  She therefore complied with the condition not to remain in Australia after the end of the permitted stay.  Further, there is no information before the Tribunal to suggest that the visa applicant failed to comply with any of the other conditions attached to this visa.  Therefore the Tribunal finds that the visa applicant substantially complied with the conditions of her last visitor visa granted in 2006.

16. 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.

17. Both the review and the visa applicant reiterated that the visa applicant only intends a short visit to Australia and will return to Lebanon before the expiration of the visa.  In particular it was asserted that the visa applicant must return to her employment and that the incentives for her to return to Lebanon include strong family ties with her parents and most of her siblings residing there.

18. For the following reasons the Tribunal is not satisfied that, despite the visa applicant’s stated intention to do so, she intends to comply with the conditions of the visa should be granted.  In reaching this conclusion the Tribunal has also considered all other relevant matters: cl.600.211(c).

19. In considering the totality of the visa applicant’s circumstances the Tribunal notes she is single and aged 28.  She has had limited education finishing her middle school education in 2006 or 2007 before she visited Australia.  Only in 2014 did she complete a 10 week hairdressing course.  The evidence of both the visa applicant and the review applicant is that after returning from Australia in 2007 she did nothing and was unemployed for 7 years although there was some unclear oral evidence that she might have commenced some other study or courses or hairdressing during this period.  The visa applicant’s evidence is that she has no assets in Lebanon and lives with her parents.  Her stated incentives to return to Lebanon are her employment and the presence in Lebanon of her parents and the majority of her siblings.

20. The Tribunal accepts that her parents and the majority of the siblings live in Lebanon but the presence of these non-dependant family members in Lebanon do not overcome the Tribunal’s concerns that, based these limited incentives and the general security situation in Lebanon, which was discussed with the review applicant at the hearing, the visa applicant may seek to prolong her stay in Australia and potentially apply to change her status after arriving here.

21. In this respect, the review applicant has sponsored both her sister and father who visited and returned to Lebanon.  She also sponsored her brother, Yassam, to Australia on a visitor visa in 2006 or 2007 and she said he did not go offshore again but married and stayed here.  This appears to be around the same time as the visa applicant’s visit.  The Tribunal advised the review applicant at the hearing that it considered her brother’s immigration history to be relevant because she had sponsored him on a visitor visa and her evidence is that he had not returned to Lebanon but stayed and married here.  The Tribunal asked that relevant information about her brother’s visa history be provided following the hearing and suggested that a copy of his passport pages with the relevant visa and entry and exit stamps would suffice.  This information was requested because the review applicant who wants to sponsor her sister earlier sponsored her brother and gave evidence that he had had not departed Australia within the validity of his visa.  In the significant period following the hearing this information has not been provided.  Therefore, given this family history, the Tribunal holds serious concerns that the visa applicant, who is single, might similarly seek to change her visa status while in Australia.

22. The Tribunal holds this concern despite the visa applicant’s previous compliant visit to Australia.   Although the applicant secured employment in 2014, the Tribunal is not satisfied that this, in the absence of any other assets in Lebanon, provides sufficient incentive for her to return to Lebanon.  Further, the applicant is not married has no children and therefore appears to have no dependants in Lebanon to whom she must return.  While the majority of her siblings live in Lebanon, according to her visa application, both her sister and brother live in Melbourne.  On this basis the Tribunal is not satisfied that the applicant will depart Australia after an approved stay.

23. Supporting this the Tribunal notes the following relevant extract from the primary decision, a copy of which was provided to the Tribunal:

    Recent reports from the Department of Foreign Affairs and Trade (DFAT) indicate that north Lebanon is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and ongoing violence due to the ongoing civil war in Syria.

24. The Tribunal invited the review applicant to comment on this and the 8 percent non- return rate of Lebanese people arriving in Australia on visitor visas.   She responded that the town where her family lives, Habchit, is peaceful and there are no problems and that not all Lebanese are alike.  The Tribunal noted at the hearing that it is an applicant’s job to make their case and if she disagreed with the general security information about Lebanon contained in the primary decision it was up to her to make submissions in relation to the particular circumstances in her family’s home town noting that the DFAT information refers to the security situation throughout Lebanon and particularly in the north of the country where the visa applicant lives.

25. The Tribunal at the hearing also referred to DFAT’s Smart Traveller advice that recommends people reconsider or not travel to Lebanon because of the unpredictable security situation as a result of ongoing political and sectarian tensions and that terrorist attacks could occur at any time throughout Lebanon and the security services remain on a high state of alert.  The Tribunal has today referred to the current edition of DFAT’s Smart Traveller advice and notes that the security situation in Lebanon has not changed or improved and continues to be unpredictable as a result of conflict in neighbouring Syria and ongoing political and sectarian tensions.

1. The Tribunal acknowledges that the review applicant wants her sister to visit Australia and that she has previously visited Australia once in 2006/2007.  However, given the current political and security situation in Lebanon and the relatively high non-return rate of Lebanese people combined with the visa applicant’s personal circumstances, including no assets or dependent family members in Lebanon, cumulatively these factors lead the Tribunal to conclude that the visa applicant does not genuinely intend to stay temporarily in Australia.  The Tribunal is not satisfied that the visa applicant’s family ties and employment constitute sufficient incentives for her to return to Lebanon.

2. The Tribunal has considered the review applicant’s offer of a security bond of up to $15,000 however a security bond does not overcome the Tribunal’s concerns that the visa applicant does not genuinely intend to visit Australia temporarily.

3. Finally, the Tribunal has considered the representative’s oral submissions made at the hearing but does not consider that the points he made allay the Tribunal’s concerns.  In addition to the matters discussed above the Tribunal notes that no evidence has been provided to the Tribunal that the review applicant’s brother came to Australia after the visa applicant was granted her visitor visa in 2006.  Even if he did the Tribunal does not see how its concerns that the review applicant’s previous sponsorship of a person who did not depart Australia could be satisfactorily addressed.   While accepting that the fact that the visa applicant secured employment after 7 years of unemployment might ordinarily be persuasive, when considered in the context of the whole circumstances of the visa applicant, it does not consider that this alone or together with the presence of her parents and siblings in Lebanon, provides a great enough incentive for her to return to Lebanon.  Further, the Tribunal does not accept the representative’s assertion that the visa applicant’s circumstances now are very similar to her circumstances in 2007 as the Tribunal considers that the deteriorating security situation in Lebanon to be significantly different circumstances.

4. For the above reasons the Tribunal is not 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 not met.

   DECISION

5. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Karen Synon
   Member