1502846 (Migration)

[2015] AATA 3082

1502846 (Migration) [2015] AATA 3082 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Salma Salman Melhem

VISA APPLICANT:  Mr Moussa Melhem

CASE NUMBER:  1502846

DIBP REFERENCE(S):  BCC2015/330836

MEMBER:Meena Sripathy

DATE:10 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 10 July 2015 at 4:39pm

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 2 February 2015 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 January 2015. 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 on the basis that the political and social situation in Lebanon is currently unstable and may be a disincentive for the applicant to return to Lebanon.

5. The review applicant appeared before the Tribunal on 9 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, and the review applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CLAIMS AND EVIDENCE

7. The visa applicant is a 29 year old male of Lebanese nationality. He is single, lives in Lebanon with his father, five sisters and one brother.  He states in his application that he is employed as an auto technician and has been with the same employer since February 2010. A letter from his employer is provided.  He also provided a one page bank statement showing regular deposits into his account during the course of 2014, and a copy and translation of a Title Deed in respect of a three bedroom apartment held in the visa applicant’s name.  The application indicates he seeks to visit Australia for one month to spend time with his sister and brother and their families. 

8. The review applicant is a 46 year old Australian citizen.   At the hearing, she told the Tribunal she lives with, and is the carer of her husband, who sponsored her to migrate to Australia in 2003.  The only other member of her immediate family in Australia is a brother who was sponsored as a spouse in 2005.  He has since separated from that spouse and re-partnered  with a woman he sponsored from Syria. They recently had a child in December 2014. Apart from her brother, the review applicant has several cousins in Australia, all of whom migrated to Australia many years ago, prior to her brother.

9. The review applicant gave details of her family in Lebanon.  She has a father and eight siblings there, including the visa applicant.  All of her siblings live in Tripoli, and most in the same neighbourhood. The visa applicant and 3 other siblings live with their father in the neighbourhood of Jabal Mohsen. She told the Tribunal that none of her siblings, nor their children have left Lebanon in recent years.  She told the Tribunal that her father is elderly and not very well.  Her eldest sister cares for him, and the other two siblings, including the visa applicant work and support him and the family.  She said that her brother in Melbourne also helps them financially and she sends money from time to time.

10. The review applicant told the Tribunal the purpose of the application was for the visa applicant to visit her and her brother and his new baby.  The visa applicant has never travelled outside of Lebanon. The Tribunal asked the review applicant if she had ever previously sponsored any family members to visit Australia and if not why.  She confirmed that she had not and said it was because they were all busy working and had no time.  After their mother died in May 2013, she decided she wanted to give the visa applicant a break and so she sponsored him for a visa this year. 

11. The review applicant confirmed that she visited Lebanon from October to December 2014 but did not get a chance to spend much time with the visa applicant at that time because he was so busy working. In response to the Tribunal’s questions about the visa applicant’s work, the review applicant said that he works as an electrician in Beirut, commuting daily from Tripoli.  He works providing electrical services in a building.  In his oral evidence the visa applicant also stated that he worked for a company in Beirut as an electrician.  He said he looks after maintenance inside the building.  The head office of the company is in Beirut, but they also have a division in Tripoli.  He said that he has been working with the same company for the past 7-8 years. 

12. The Tribunal put to the review applicant and visa applicant the information provided in the application that the visa applicant has worked since February 2010 as a technician in a company involved with tyres, batteries, oils, cars and motorbikes spare parts.  In response the review applicant stated that she only knows that he works as an electrician.  The visa applicant responded that his company has only been legally registered since 2010, and that while it does work in auto spare parts, his role in the company is in the maintenance of the building as an electrician. 

13. With regard to the bank statement evidence provided with the application, the visa applicant explained to the Tribunal that the regular deposits shown on that statement relate to payments by instalment for a car he sold last year. The final instalments were paid by the end of the year.  He stated that his salary from employment is given to him in cash and he only banks what is left after his regular expenses.  The review applicant in her evidence confirmed that she was present in Lebanon when the car instalment payments were made and knew about this. 

14. The Tribunal discussed with the review applicant and visa applicants independent information before it regarding the circumstances in Tripoli, Lebanon that may lead the Tribunal to have concerns that this may act as a disincentive for the visa applicant to comply with conditions on his visa.  Specifically, the Tribunal referred to information which indicated that Tripoli was affected by a concentration of poverty and also experienced sectarian violence.  In light of the review applicant’s evidence that her family are Alawites , the Tribunal put to her country information that suggests Alawites in the Jabal Mohsen neighbourhood may be at risk of sectarian violence. Also, it noted the relatively high visitor visa non return rate for Lebanese nations. The Tribunal explained that this information may lead it to have concerns that the visa applicant was not likely to return at the expiry of the visa. 

15. In response the review applicant said her family have nothing to do with all that is going on there.  The area affected by violence is in another part of Jabal Mohsen, near Syria St.  Where the visa applicant lives is far from this area, on the other side of the neighbourhood.  No one in her family has been affected by the violence. She told the Tribunal when she went there last year she walked around and did not experience any problems.  She stayed at her father’s house, and visited the markets.  She had no comment on the Department’s statistical non return rate information.

16. The visa applicant in his response, stated that he is attached to his country.  He has a house, work and his family.  He has no intention or desire not to return to it.  He reiterated that he only wants to visit Australia to see his siblings and new born nephew.  When asked about the review applicant’s recent visit to Lebanon and why he did not take advantage of that period to spend time with her, he said he had to work and could only visit her when he came home in the afternoons.  The review applicant told the Tribunal she hardly spent any time with him on that visit, because he was working and then he would go out with friends or do other jobs when he returned from Beirut. 

17. The review applicant’s husband gave evidence to the Tribunal that he hopes a favourable decision will be made because he wants his wife to be happy.  He said the family is willing to support her undertaking that he will return home after his visit.  When asked by the Tribunal why he believes the visa applicant would return at the end of a visit, he responded that he will because he has to go back to his work. The witness told the Tribunal he has not seen the visa applicant since he was very young, when he went to Lebanon 13 years ago to marry the review applicant. 

18. At the end of the hearing, the Tribunal put to the review applicant for her comment and response under s359AA of the Act, information provided by the visa applicant in his oral evidence that may lead the Tribunal to affirm the decision under review, relating to the visa applicant’s evidence about his employment and bank statement, and the documents provided with the application which were not consistent with this oral evidence.  The Tribunal explained to the review applicant that she could seek additional time to comment or respond. 

19. The review applicant told the Tribunal in response that she was present in Lebanon when he was receiving the car repayments and his evidence about this is correct.  Regarding his employment, the review applicant stated that she understood that he worked as an electrician.  She had no further comment to make and did not request additional time to respond.

    FINDINGS AND REASONS

20. 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.

21. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister, brother and nephew in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

22. 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 never travelled to Australia and so there is no relevant migration history to consider.

23. 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.

24. The review applicant told the Tribunal that she gives her word that the visa applicant will comply with the conditions of the visa and depart Australia.  She said that he must return because he of his work and also his father and extended family there. In his evidence the visa applicant reiterated the same reasons for why he would return following his visit.

25. For the following reasons, the Tribunal is not satisfied, despite their stated expressions of intention to do so, that the visa applicant intends to comply with the conditions.  In reaching this conclusion the Tribunal has also considered all other relevant matters (cl.600.211(c)).

26. The visa applicant is a single male, of working age from Jabal Mohsen, Tripoli, Lebanon.  He claims to have longstanding and ongoing employment.  However, the Tribunal has concerns about the credibility of the claims about the visa applicant’s employment.  The review applicant and visa applicant gave oral evidence about his employment that was inconsistent with the information provided in the visa application and the document provided in support.  They said he worked as an electrician in Beirut and that he had been with this company for 7-8 years. Information given in the visa application was that he was a technician for an auto spare parts company in Jabal Mohsen and had been there since 2010 and a letter purportedly from his employer was provided in support. The Tribunal finds this evidence is contradicted by the review and visa applicant’s oral evidence to the Tribunal.  The inconsistency between the applicants’ oral evidence and the written and documentary evidence provided as to his employment leads the Tribunal to doubt the truthfulness of the visa applicant’s claimed employment.  The Tribunal notes that monthly deposits in 2014 on the bank statement provided with the application were explained by the visa applicant and review applicant at the hearing to be instalments for a car he had sold and did not represent salary payments. Therefore the Tribunal finds that the bank account statement does not support the applicant’s claims relating to his employment. On the material before it therefore, the Tribunal does not accept that the visa applicant is or was employed as an electrician for a company in Beirut as claimed. It does not accept that he has a job to return to if he came to Australia for a visit.

27. The Tribunal has considered information prepared by the Department of Foreign Affairs and Trade relating to Lebanon[1] which indicates that “nearly a third of the country’s population is estimated to live below the poverty line” and Tripoli, in particular, is identified one of the places in which that poverty is concentrated.  The review applicant gave evidence that her brother in Melbourne provides financial assistance to the family, and she has also sent money to the family from time to time. The Tribunal finds that the circumstances of poverty in the region, and the visa applicant’s age and circumstances, together with the above finding in relation to the visa applicant’s  current employment status are strong factors that may encourage the visa applicant not to comply with the conditions of his visa, by remaining beyond the period of validity and/or working. 

    [1] DFAT Country Information Report, 25 February 2015, p4

28. On the review applicant’s oral evidence, the Tribunal accepts that the visa applicant is an Alawite from the Jabal Mohsen neighbourhood in Tripoli, Lebanon.  The Tribunal has considered information prepared by the Department of Foreign Affairs and Trade relating to Lebanon[2] and sectarian violence in Tripoli, and specifically relating to Alawites in the Jabal Mohsen neighbourhood. The Tribunal considers the unstable security conditions in the visa applicant’s country of origin, particularly given his religious community affiliation is also a factor that may encourage the visa applicant to breach the conditions of his visa and remain beyond the period of his permitted stay.

    [2] DFAT Country Information Report, 25 February 2015, p4

29. The Tribunal accepts that the visa applicant has his father and a large extended family in Lebanon and that these family ties provide some incentive for his return. It accepts, on his oral evidence and the document provided with the application, that he has an ownership interest in the apartment he and his father and siblings live in.  It has also taken into consideration the review applicant’s evidence that she recently herself returned to the visa applicant’s home town and did not experience any security issues.  However, the Tribunal is not satisfied, having considered the circumstances as a whole, that the visa applicant’s family ties and ownership of an apartment in Tripoli, outweigh the numerous factors referred to above which are all strong disincentives for his return.  In reaching this conclusion the Tribunal has placed significant weight on the adverse credibility finding relating to the visa applicant’s claimed employment, together with the fact he is of working age and the circumstances of the country conditions in his home town.

30. 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

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

    Meena Sripathy
    Member