1503936 (Migration)

[2015] AATA 3849

1503936 (Migration) [2015] AATA 3849 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Adam Morabi

VISA APPLICANT:  Mr Mohamad Moustafa

CASE NUMBER:  1503936

DIBP REFERENCE(S):  NCC2015/222005

MEMBER:Christian Carney

DATE:30 November 2015

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 30 November 2015 at 5:17pm

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 21 January 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 15 January 2015, seeking to satisfy the primary criteria in the Sponsored Family stream. 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. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the deteriorating security conditions in Lebanon suggested there may be insufficient incentives for him to return to Lebanon.

3. The application was initially constituted to Tribunal Member Jonathan Duignan, who conducted a hearing with the review applicant on 15 June 2015.  However, for circumstances beyond his control, Member Duignan was unable to finalise the application.  The application was subsequently re-constituted to the Presiding Member, who, after reviewing the file, invited the review and visa applicants to attend a hearing on 15 October 2015. 

   Issue for determination

4. 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 he has complied substantially with the conditions attached to the last substantive visa she held; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter. 

   Information about the visa applicant

5. The visa applicant is a 48 year old Arab Sunni Muslim from Bazbina in Akkar, Northern Lebanon.  He is married and has six children aged between five and eighteen.  He and his wife and children live together in their family home in Bazbina, where he owns four parcels of land on which he grows fruits and nuts and operates a horse stud.  He has worked as the bus driver for the International School of Akkar since October 2007. 

6. He applied for a visa to visit Australia from 28 January 2015 to 11 March 2015 to visit and stay with his brothers and sisters and their families in Sydney.  He has five brothers who are Australian citizens and have lived in Sydney since the late 1970s and early 1980s.  

7. He provided the following information and evidence with his application:

   (a)Full copy of his passport, which indicates he has not before left Lebanon. 

   (b)Copy of details page of the review applicant’s Australian passport and a ‘Change of Name Certificate’ indicating he changed his name from Merheb Bachir Mustapha to Adam Morabi.  The review applicant was the sponsor for the Visitor visa. 

   (c)Extract of Register of Family Registration (in Arabic with translation to English) for the visa applicant’s family unit, listing his details and the details of his wife and six children.

   (d)Extract of Register of Family Registration (in Arabic with translation to English) for the details of the visa applicant’s parents’ and siblings, which shows he has nine older siblings (five brothers and four sisters) and a younger sister. 

   (e)Employment Statement dated 12 November 2014 (in Arabic with translation to English) from the National Social Security Fund stating the visa applicant’s past and present employment details. 

   (f)Four Title Deeds for land in Akkar El Atika owned by the visa applicant, listing the land usage as agricultural farming (in Arabic with translation to English). 

   (g)Statement of Town Councillor, Akkar El Atika, dated 13 November 2014, confirming the visa applicant’s details and residence (in Arabic with translation to English). 

   (h)Statement by the International School of Akkar 11 November 2014, confirming the visa applicant’s employment as bus driver since 1 October 2007 (in Arabic with translation to English). 

   Hearing on 15 October 2015

8. The review applicant gave the following evidence at a hearing before the Tribunal:

   a.He confirmed the details of his identity and his relationship to the visa applicant.  He is one of four brothers the visa applicant has in Sydney, one of whom is currently in Bazbina. 

   b.He was last in Lebanon in June 2015.  He was there for three weeks to visit family.  He stayed with the visa applicant and his family.  He went with his wife and 17 year old daughter. 

   c.The situation in Lebanon is not good and there is no political leadership.  He had not been back since 2006. 

   d.There are about 2,000 families who live in the Bazbina valley.  It is a prosperous and fertile area and the people who live there are mostly happy and content.  They are nearly all Sunni Muslims. 

   e.There are many Syrian refugees living in the area but, to his knowledge, their presence has not created any problems and he understands the locals tolerate them because of the situation in Syria.  The Lebanese are used to these types of problems as they have been living with them for 40 years. 

   f.Neither the visa applicant nor anyone else in their extended family is involved in politics or religious activities.  They are all regular people. 

   g.To his knowledge, the visa applicant is happily married and has good relations with his neighbours and other people in the community. 

   h.He is aware that if his brother comes and overstays his visa, it will potentially mean that any other family members who apply in the future will not be accepted.    

   i.His brother only wants to come and visit temporarily and he will ensure will he returns before the end of the visa.  The main reason his brother wants to come is to visit their father’s grave.  The visa applicant will stay with family in Sydney and they will cover all of his expenses, which is the custom for Lebanese people. 

9. The Tribunal called the visa applicant in Lebanon.  He was driving the school bus at the time and pulled over to the side of the road.  The Tribunal observed the noise of the school children, who were shouting and laughing in the manner of young children on their way to school the world over.  The visa applicant gave the following evidence:

   a.He confirmed the details of his identity, and the identity of his wife and children, and their current address where they all live together. 

   b.He wants to come to Australia to see his brothers and their families but most importantly he wants to visit his father’s grave.  His father died in Sydney in 2002. 

   c.He does not want to stay in Australia.  He will only come for about four weeks.  He has a horse stud and farm to run and also has his job as a bus driver, and his wife and six children to look after.  If he could, he would bring them all but it is too difficult and expensive, so they will all remain behind.  He is happily married and has normal relationships with his six children. 

   d.The Bazbina valley is safe and secure.  It is an area that tourists use to go to as it is beautiful and scenic, and the property is very expensive to buy.  It is close to the Syrian border but the valley has not experienced any problems because of the conflict in Syria.  There are many Syrian refugees in the area but there have not been any problems with locals.  The problems in Syria have not caused disruptions with his bus driving work or caused the school to close for any period. 

   e.Neither he nor any other family member is or has been involved in any political or militia group, and none of them are extreme in their religious views or activities.  He is not involved in any disputes with any neighbours or any other person in Lebanon. 

   f.He will follow the rules of the visa and will not work here.  He will leave before the end of the visa.  He is aware that it would affect the chances of other family coming here in the future if he overstays the visa.  All he wants to do is to see his family and visit his father’s grave.

   Consideration and assessment

10. On the evidence before it, the Tribunal accepts that the visa applicant and review applicant are siblings.  The visa applicant seeks the visa for the purposes of visiting his family in Sydney, which is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.221.

11. 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)).  However, in this case, the visa applicant has not before left Lebanon and has no relevant travel history against which this criterion can be assessed.

12. 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 which a visa in the circumstances of this case would be subject include (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.

13. The evidence before the Tribunal indicates that the visa applicant is independently wealthy, that he owns four parcels of land in the fertile Bazbina valley in Akkar, that he operates a horse stud and grows nuts and fruits, and, since 2007, has been a bus driver for the International School of Akkar.  He has a number of siblings in Sydney with whom he will stay with, who, in the normal Lebanese custom, will cover all of his living expenses while he is here. 

14. Both the visa applicant and the review applicant gave their evidence in a straightforward and direct manner and there is nothing to contradict their statements about his employment or financial circumstances in Lebanon.  Accordingly, the Tribunal accepts that he will stay with the review applicant and other family while he is here, and that he will bring with him an amount of money sufficient to cover the incidental costs of his visit to Australia.  The Tribunal accepts that the primary purpose of his coming to Australia is to visit family and his father’s grave, and that he does not intend to work while he is in Australia.  There is no evidence or indication that he wishes or intends to study or participate in any training course in Australia, and the Tribunal is satisfied that he has no intention to study or train while he is in Australia. 

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The evidence before the Tribunal indicates the visa applicant and his wife and six children, lead a normal and typically middle class existence in Bazbina, and that the review applicant has a similar set of circumstances in Sydney, and that, as siblings, they maintain a close familial bond.  The evidence does not indicate that the visa applicant has health problems or that he requires care or assistance, which goes to a lack of extrinsic reason for him to want to remain in Australia past the expiry of the visa. 

16. The Tribunal examined the circumstances of the visa applicant’s relationships with his wife and children and both he and the review applicant maintained that those relationships are all normal and there is no reason not to accept that evidence.  Both the visa applicant and the review applicant maintained that no one in their family has been involved in any political or religious organisation, and that neither the visa applicant nor other member of their family had experienced any problems or trouble with the authorities or any person or group in Lebanon.  Despite reports of conflict and tensions in Tripoli in the north of Lebanon, and in neighbouring Syria, the Tribunal accepts that the conflict has not spilled over to the visa applicant’s home region and that the security situation there is safe, so that his siblings continue to visit without any fear. 

17. There is nothing to contradict their statements that the visa applicant has strong ties to Lebanon and does not wish to visit Australia other for a genuine temporary stay to visit his family here.  While the Tribunal accepts there may be some desire by the visa applicant to stay past one month to continue to be with his siblings in Australia and away from the responsibilities of his life in Lebanon, it considers that this concern is outweighed by the visa applicant’s need and wish to return to his wife and six children and other siblings and friends, as well as his work and horse stud and home in Lebanon.  The Tribunal accepts that the proposed duration of stay of about one month, is reasonable given the numerous family members the visa applicant would want to spend time with in Australia, and that he would reasonably want the opportunity to see sites and participate in his siblings’ family life in Australia.

18. The Tribunal gives weight to the good immigration record of the review applicant and other family members in Australia, including those they have previously sponsored to Australia.  The Tribunal gives weight to the review applicant’s evidence of the importance of the family’s good name and reputation in Australia as law abiding people who comply with immigration rules.  The Tribunal also accepts that, if a security bond was required of the review applicant, the review applicant would be highly motivated to ensure the visa applicant does return to Lebanon before the expiry of his visa due to the financial hardship losing a security bond would cause to him, and his desire to sponsor other family members to visit her in Australia in the future.

19. For all of the above reasons, having carefully considered the available as a whole, the Tribunal is satisfied that the visa applicant wants to visit Australia for the genuine reasons and not for a purpose other than a genuine temporary stay to visit his family and his father’ grave.  For these 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

20. 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.

    Christian Carney
    Member