1504383 (Migration)

[2015] AATA 3550

1504383 (Migration) [2015] AATA 3550 (15 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Lina Abdul Hamid Ep Rahimy Abdulhamid

VISA APPLICANT:  Mr Mouhamed Abdel Hamid

CASE NUMBER:  1504383

DIBP REFERENCE(S):  BCC2015/392642

MEMBER:David Dobell

DATE:15 October 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 15 October 2015 at 9:18am

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 5 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 3 February 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).

4. Relevant here is cl.600.211, which requires the visa applicant to satisfy the Minister that he or she 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. 

5. The review applicant appeared before the Tribunal on 9 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Romy Abdulhamid, who is also a cousin of the visa applicant. 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 by her registered migration agent, who also attended the hearing

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Department’s movement records show that the review applicant arrived on a subclass 309 visa granted in January 2011. The visa applicant has not been to Australia before.

8. The visa applicant indicated that he would be travelling to Australia with his mother. The mother visited Australia in March/April 2011 and complied with visa conditions. Curiously, she was granted a subclass 600 visa on 23 February 2015 which was then cancelled on 25 February 2015.

9. The records also show that sister Houda arrived in Australia on a subclass 300 visa in March 2012 and that she was recently granted a subclass 801 visa. Sister Yamene arrived on a subclass 309 visa in March 2015.

10. The records also show that the visa applicant’s brother, Ali Abdulhamid, visited Australia from January to April 2008 and complied with visa conditions, and that he was granted a subclass 100 visa in November 2014 and now resides in Australia.

11. The Department’s ICSE records show that the visa applicant was refused a sponsored family visitor visa on 5 March 2013 and 14 August 2012. It appears that he was sponsored by his uncle in 2012 and the review applicant in 2013. There appears to have been another sponsorship in July 2013 by the review applicant, possibly of Ali, and a bond was required prior to it being rejected.

12. From the visa applicant’s Form 1418 on the Department file:

    • Visit of 3 months requested, February to May 2015
    • Never married
    • Lives in Kabhit, Akkar, Lebanon
    • Travelling with mother, Souad Abdullah
    • Father Abdul to remain in Lebanon
    • 2 sisters in Australia (including review applicant) married
    • 3 brothers in Lebanon, 1 sister in Lebanon, 2 step-siblings in Lebanon
    • Sisters here live together in Wetherill Park
    • Purpose: to visit 2 sisters and Yamene who has been granted a visa
    • Employed in Akkar, self employed, partner and manager at metals company
    • They have the financial capacity to pay trip costs
    • Review applicant can offer support too
    • Refused twice a visitor visa

13. The following documentary evidence is on the Department file:

    • Lebanon, Bank statement, Abdul Hamid & Company, 8 January 2015, 295,317.670 US
    • Lebanon, census register, family entry statement, showing the relationship between the review applicant and the visa applicant, and translation
    • Visa applicant, Lebanon passport, front pages
    • Lebanon, registration certificate of commercial company, Abdul Hamid and partners company, 2012, and translation
    • Lebanon, Company declaration, visa applicant is a 12% shareholder, 2012, and translation
    • Lebanon, VAT registration, company, 2013, and translation
    • Statutory Declaration of review applicant dated 2 February 2015, regarding brother coming for wedding on 27 February 2015. Sister is coming soon
    • Review applicant, visa grant notice, subclass 100, 9 January 2013, front page
    • Review applicant, Lebanon passport, front page
    • Commonwealth Bank statement, review applicant, little money then $6,000 deposit on 2 February 2015

14. The following new evidence was provided to Tribunal prior to the hearing:

    • Lebanon, company certificate of registration, 18 February 2015, and translation
    • Lebanon, company letter, 3 October 2015, stating that the applicant is a sales manager earning $1000 US a month, and that he is granted 3 months vacation, one monthly paid and two on his own account, and translation
    • Lebanon, SGBL Bank statement, visa applicant, balance 26 September 2015 Lebanese £73,163.771 (approximately $66,000 A)
    • Lebanon, SGBL bank statement, visa applicant, balance 23 September, US$41
    • Submission by representative 8 October 2015

15. At the hearing, the review applicant said that she came here on a spouse visa in April 2011 and has 3 sisters and one brother in Australia and 3 brothers (including the visa applicant) and one sister in Lebanon, and her parents. She then corrected that to 2 sisters in Lebanon.

16. The brother in Australia is Ali Abdulhamid, her step-brother. She did apply for a visitor visa for him in 2013 but this application was cancelled as he decided to come to Australia on a spouse visa. Both their mother and father have been to Australia at separate times and complied with the law. Her mother came in 2011 when she came to Australia. Her father came in maybe 2006 or 2007 to visit his brother.

17. As to the location of their hometown, it is in the south-western end of Akkar Province, as indicated on a map given to the review applicant and on file. It is a town of 6-7,000 people near mountains. It is about 30 minutes to Syria from there, or about 35-40km. The visa applicant lives with his parents, and 2 brothers and one sister.

18. The purpose of the visit is to see the review applicant, and siblings and their children and other family members on the father’s side, and also to do some tourism. The wedding he was going to come for has already occurred.

19. The length of the visit will be 3 months. The Tribunal said that was a long time. She said it is holidays there now and if he got the visa he would go back in the New Year, January.

20. The review applicant has sponsored visitors before, being Ali and the visa applicant. She explained what happened with Ali. He got married in 2010 in Lebanon, and then his wife, an Australian citizen got pregnant, and she came back to Australia to be with her family. Ali was going to come and visit for Ramadan and Eid but the application was delayed and then he decided against it, and they decided to lodge a spouse visa instead. After the birth in 2012 his wife and child went back to Lebanon, then they lodged the spouse visa application and waited there until it was approved, and then they came to live in Australia.

21. The Tribunal noted that from the ICSE records a bond was required on 26 September 2013, and then the visa application was refused. It appeared this was in relation to brother Ali. It said that the requirement for a bond meant the visa would have been granted subject to the lodging of the bond. She said her whole family have always done the right thing by Australian immigration laws.

22. The visa applicant does not have a fiancé or a girlfriend at present. He has never been overseas before.

23. She said that both he and Ali own a share in the family business. Ali used to work for the business before he came to Australia. It is a big company and the visa applicant has a good job there as a manager, and she asked why he would leave and come here

24. The Tribunal then said that as the visa applicant is a young unattached man he may want to come to Australia to work and marry and stay here. She said that 2 years ago the visa applicant became engaged to an Australian cousin and that if he wanted to come here and live he could have got married and pursued that but he did not.

25. The Tribunal the put the independent country information about civil unrest in Lebanon, and the proximity of ISIS in Syria to the Lebanon border and that this may mean the applicant may want to leave Lebanon. She that is not true in his case, and that there are no problems in the village and they lead a comfortable life there. The business is about 15-20 minutes away from the village.

26. The Tribunal then spoke to the visa applicant in Lebanon. As to why he wants to visit, it is to see his sister and siblings and kids.  He wants to come for 3 months.

27. As to his employment, he said that he is a manager and earns US $1,000 a month and a percentage of sales. As to how many managers are there, he said it is just him and there are 35 employees. The Tribunal asked who was going to run the business for 3 months then if he is not there. He said his father would do this. The Tribunal said that his father already has a job there and he said that was true, and his father would have to do a bit more work and suffer, but he would do it for his holiday.

28. The Tribunal asked whether he ever had an Australian girlfriend or fiancé. He said no. He said he has never had a relationship with an Australian woman before.

29. The Tribunal put to the visa applicant its concern that as he is young and single he may wish to come to stay here in Australia and get married and find a job. He said he has big obligations to his work there and cannot leave as there are big projects that he is involved with.

30. As to whether there were any other reasons which mean he must go back, he said, no, it was just about work and that was the only reason.

31. The Tribunal then put the independent country information to him, to which he said that his home is in the north and it has no effect on them and if there were any problems it would be in the south around Beirut, not in the north.

32. The Tribunal said that the independent country information says that IS is not that far from the border in the north, and asked why might not there be problems there in the north shortly. He said that it just doesn’t have any impact on them, and they are ‘far away’ and working all the time.

33. The Tribunal then spoke again to the review applicant. She said that in relation to the fiancé issue, nothing was ever formalised, and there was just talk when this woman went to Lebanon to visit.

34. As to whether there was anything else she wanted to say, she said that she hopes he gets a visa but will respect the Tribunal’s decision in any event.

35. The representative noted that the visa applicant’s work is a great incentive for him to return to Lebanon and it is a big commitment as he is the only sales manager there and his position would be hard to fill if he left.  Also, the review applicant and her husband are prepared to lodge any security bond as required.

36. Turning to the application of the law, 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.

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

38. 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)).

39. The Tribunal finds from the Department’s movement records that the visa applicant has not visited Australia before. 

40. 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

41. There is no suggestion that the visa applicant intends to study in Australia. However, the Department is of the view that the visa applicant may remain in Australia after the end of his permitted stay. The Tribunal is also concerned he may stay in order to work and or marry and  also because of the security conditions in Lebanon and nearby Syria.

42. The Tribunal notes that whether it is the visa applicant’s intention to comply with Condition 8531 is dependent on whether the Tribunal is satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This will be addressed at the end of this consideration.

43. The Tribunal has also considered all other relevant matters, in terms of cl.600.211(c). The Tribunal notes Department policy in this regard:

    In establishing whether 600.211(c) is satisfied, relevant considerations of any other matter may include, but are not limited to:

    ·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:

    ·ongoing employment

    ·the presence of immediate family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia

    ·property, or other significant assets, owned in their home country

    ·whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance .

    ·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:

    ·economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia

    ·economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.

    ·the applicant’s personal ties to Australia, that is:

    ·does the applicant have more close family members living in Australia than in their home country

    ·is the applicant subject of adoption proceedings that have not been resolved in their home country

    ·military service commitments

    ·civil disruption, including war, lawlessness or political upheaval in the applicant’s home country and

    ·the applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application)

    ·whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with "tourism")

    ·previous immigration and travel history, such as:

    ·previous visa applications for Australia

    ·previous overseas travel, that is, has the applicant travelled to countries other than Australia.

    ·In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

    ·information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country. Such information, including the Modified Non Return Rate (MNRR), which is published quarterly on the department’s website may assist officers in deciding whether closer examination of an application is required.

44. As to direct family ties, the visa applicant has a similar number of siblings here in Australia as in Lebanon. However, his parents are in Lebanon and he resides with them. The Tribunal considers that this leans the balance of family ties towards Lebanon, but acknowledges it is strong towards Australia as well.

45. The visa applicant does not have any assets in Lebanon. Further, he is young, 22 years old, and does not have any relationship commitments there, such as a girlfriend or fiancé.

46. Just considering the above, with no record of overseas travel, in combination with the independent country information the Tribunal put to the applicant at hearing, it would be likely to find that this may not be a genuine visit to Australia.

47. However, he does have a well-paying job (considered locally) in the family business there. It appears that he has great responsibilities for a young person, being a manager and responsible for 35 employees. The Tribunal accepts that he is committed to his job and his father will be performing his duties whilst he is here in Australia for 3 months.

48. Further, the Tribunal considers that the record of his mother and siblings in their dealings with the Department and their compliance with Australian immigration laws should be taken into account.

49. The Tribunal has examined the movement records of his mother and three sisters and one brother in Australia and they have all complied with visa requirements. None has overstayed any visa. None has applied for another visa once in Australia.

50. Further, it accepts that despite the closeness to Syria, it is safe in his home village and vicinity at this time and that the visa applicant has no fears in this regard.

51. Despite some doubts, the Tribunal is satisfied that the visa applicant is only planning to visit Australia and will return home at the end of his 3 month stay.

52. Thus, in terms of cl.600.211(b), the Tribunal also finds that he intends to comply with Condition 8531, and does not intend to remain in Australia after the end of his permitted stay.

53. Having had regard to cll.600.211(a), (b) and (c), the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Thus the requirements of cl.600.211 are met.

54. The Tribunal would recommend that a $15,000 bond be imposed should the visa be otherwise approved. This would go towards meeting any remaining doubts the Tribunal may have.

    DECISION

1. 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

   David Dobell

   
   

   Member