1504464 (Migration)

[2015] AATA 3083

1504464 (Migration) [2015] AATA 3083 (16 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jocelyne Chidiac

VISA APPLICANT:  Mr Jille Al Helou

CASE NUMBER:  1504464

DIBP REFERENCE(S):  bcc2015/446119

MEMBER:Melissa McAdam

DATE:16 July 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 16 July 2015 at 1:05pm

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 10 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). 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 visa applicant was born on 1 August 1992 in Beit Al Chaar in Lebanon. He is a Lebanese national. The visa applicant is self-employed, operating a taxi business in Lebanon. The visa applicant’s parents and brother are living in Lebanon. His sister, the review applicant and sponsor, is in Australia.

5. The visa applicant submitted a copy of his Lebanese passport and a commercial register excerpt indicating he operates a commercial taxi business, ‘Sydney Taxi’, in the Beit Al Chaar and outer regions. He also submitted a bank account statement showing he has a savings deposit of 24,000 USD.

6. The visa applicant seeks the visa for the purposes of visiting his sister in Australia. The proposed duration of stay is three months.

7. The visa applicant has not previously been to Australia. He has been refused a Visitor Visa twice previously, in 2010 and 2011.

8. The review applicant is the sister of the visa applicant. The review applicant is an Australian citizen. She was granted Australian citizenship on 9 February 2010. She submitted her bank account and tax return records to show her account holding of approximately $30,000 savings and her 2013 earnings of approximately $52,000. She works as a hairdresser in Bankstown.

9. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  The delegate based this finding upon an assessment that:

   ·     The visa applicant’s family ties to Lebanon are limited to non-dependent relatives, namely his parents and one sibling.

   ·     The absence of previous international travel by the visa applicant.

   ·     The visa applicant’s willingness to be separated from his non-dependent relatives for a period of time.

   ·     Concerns about the visa applicant’s capacity to take leave from his employment for three months.

   ·     Concerns about the visa applicant’s financial capacity for a three months stay in Australia.

   ·     The visa applicant’s reason for travel was inconsistent with the length of stay requested.

   ·     The lack of evidence of sufficient personal, business, employment and cultural ties to Lebanon.

   Information to the Tribunal

10. The review applicant submitted an attestation from the Mayor of Bait Al Chaar that the visa applicant is the owner of a taxi business; and a statutory declaration that she would take full responsibility for the visa applicant’s stay in Australia and was willing to lodge a higher security bond for him.

11. The review applicant appeared before the Tribunal on 16 July 2015 to give evidence and present arguments. The following is a summary of the information she provided:

    a.The review applicant has previously sponsored both her mother and her father to visit Australia. Her mother visited Australia about three years ago for three months. Her father visited Australia about six years ago and stayed for one month. Both parents fully complied with their visa conditions and returned to Lebanon before the expirations of their visas.

    b.The review applicant would like to sponsor her mother to visit her again in Australia soon, particularly for her son’s upcoming holy communion. The review applicant would also like to sponsor her elder brother to visit her in Australia in the future as he has never been here.

    c.The review applicant does not know why the visa applicant was refused a visitor visa on previous occasions. She did not apply for review of the refusals as she was relatively new to Australia and not sufficiently familiar with  systems and procedures here.

    d.The visa applicant lives in Awkar in the north of Beirut near the American Embassy. It is a beautiful and peaceful part of Lebanon. He lives with his parents and elder brother there. He has always lived with his parents. His parents own the family home. He and his elder brother operate a taxi business and an Internet cafe business to financially support the family. His mother also makes money cooking food for people. His father is too sick to work.

    e.The taxi business is doing well. He and his brother have three taxis and another driver. While the visa applicant is in Australia his elder brother will operate the company and their cousins will help drive the taxis. 

    f.The visa applicant has a girlfriend in Beirut who he plans to marry. He is currently planning their engagement. They have been together for three years. His girlfriend is a Lebanese citizen from the same neighbourhood as the visa applicant. The review applicant showed the Tribunal many photographs of the visa applicant and his girlfriend together and with their parents.

    g.The visa applicant has a very good relationship with his parents and brother. They are a very close family.

    h.The visa applicant applied for a three month visa to Australia. The application was for three months mainly because they assumed this was what they should apply for.  However the visa applicant would also be happy to visit for a shorter period.  He will stay with the review applicant and spend time with her children and family. The review applicant will show the visa applicant local tourist sites.

    i.The visa applicant would not want to live in Australia as the lifestyle is much different from the one he likes in Beirut. Beirut is more exciting and people go out more. He would probably find Australia boring in comparison, as the review applicant did when she first arrived in Australia. The visa applicant has no interest in studying. He has no need or possibility to work in Australia.

    j.The visa applicant can support himself during the visit to Australia. However the review applicant would also support him as this is traditionally and culturally appropriate, given the visa applicant will be here as her guest.

    k.The visa applicant has responsibilities in Lebanon to support his family and help care for his father because of his health problems. The visa applicant wants to return to Lebanon to be with his family and support them there. He also wants to return because his girlfriend and future fiancée is there.

    l.The review applicant is the person who most wants the visa applicant to visit her here, not the other way around. Her older brother has travelled to Cyprus and America but the visa applicant has not yet travelled anywhere.

    m.The review applicant acknowledged that the security situation in Lebanon is sometimes not stable. However the visa applicant’s home area, Awkar, is very safe and secure. There have been no security incidents there. This is where the review applicant herself grew up and nothing happens there in terms of security threats.

    n.The review applicant is willing to lodge a substantial security bond to guarantee her brother will comply with visa conditions.  She is aware she will lose the money if her brother breaches any condition or over stays. It would be a devastating financial impact upon her family to lose the money. She and her husband worked very hard for their savings and they have a mortgage to pay plus the expenses of raising their children.

    o.The review applicant is also aware that if her brother breaches visa conditions or overstays she will not be able to sponsor another person to Australia for a period of time. This would be dreadful for her as she very much wants her mother here in about October for her son’s first holy communion.  She also wants to be able to sponsor her other family members to visit and will need them here from time to time when she needs extra support.

    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 purposes of visiting his sister in Australia. 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 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 Tribunal notes that the visa applicant has not previously held a visa in Australia so the issue of former compliance is not relevant to his situation.

15. 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.

16. The Tribunal accepts the visa applicant’s written evidence that he has substantial savings and runs a reasonably successful taxi business with his brother in his home region in Beirut. The Tribunal accepts that he has available funds to support himself in Australia and also that his financial requirements here will be minimal given he will be accommodated and supported by his sister and her husband in Australia. There is nothing before the Tribunal to indicate the visa applicant would need or want to work in Australia. The Tribunal is satisfied that the visa applicant views his potential stay in Australia as a holiday, not as a time to work, and that he intends to comply with Condition 8101.

17. The Tribunal notes that the visa applicant is currently working, and not studying in Lebanon. The review applicant gave evidence that the visa applicant has no interest in studying. There is nothing before the Tribunal to indicate otherwise and the Tribunal is satisfied that the visa applicant intends to comply with Condition 8201.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

19. The evidence before the Tribunal indicates the visa applicant is a young Lebanese man with family and work ties to Lebanon. The Tribunal notes that the majority of the visa applicant’s immediate family reside in Lebanon, and that only his sister is in Australia. The Tribunal accepts his family ties and business interests represent substantial motivating factors for him to return to Lebanon. The Tribunal further accepts he is in a serious relationship with a Lebanese woman in his home area who he plans to marry and that this is a very strong incentive for him to return, within a short period, to Lebanon.

20. The visa applicant’s home area, Awkar, is reportedly a more affluent and protected part of Beirut which is also home to the American Embassy. It is reported as a secure and upmarket part of Lebanon. The Tribunal has not located any reports of security incidents in Awkar. The Tribunal is satisfied that despite security concerns in parts of Lebanon the visa applicant’s home area is secure. The Tribunal accepts that the visa applicant would enjoy living in Awkar and want to return there. The information before the Tribunal does not indicate the visa applicant would desire to live in Australia or to stay for longer than a temporary, three month maximum, visit.

21. The Tribunal gives weight to the immigration history of the review applicant and her good record of sponsoring family members to visit her in Australia. The review applicant has previously sponsored her parents, on two separate occasions, to visit Australia. Her evidence that the visa conditions were fully complied with on both occasions is not contradicted by any information before the Tribunal and the Tribunal accepts it.

22. The Tribunal accepts that the proposed duration of stay, three months, is reasonable given it will be the visa applicant’s first visit to Australia and first overseas travel, it is a long distance to travel between Lebanon and Australia, and the review applicant wishes the visa applicant to spend much time with her and her family. The Tribunal also accepts the visa applicant and the review applicant would also be satisfied with a shorter visit period and that they simply nominated the maximum period as they thought this was the ‘done thing’. The Tribunal accepts that the visa applicant’s taxi business can be operated and staffed by his brother and cousins respectively while the visa applicant is in Australia, so that the business will not be adversely affected by his absence.

23. The Tribunal also accepts that the review applicant would be highly motivated to ensure the visa applicant does return to Lebanon before the expiry of his visa due to her strong desire to sponsor her mother to visit her here soon and to sponsor family members to visit her in Australia in the future.

24. In sum the evidence before the Tribunal does not indicate that the visa applicant wants to visit Australia for any purpose other than a genuine temporary stay to visit his sister and her family in Australia.

25. For the above 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

26. 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.

    Melissa McAdam
    Member