1504948 (Migration)

[2015] AATA 3552

1504948 (Migration) [2015] AATA 3552 (9 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Lina Elias

VISA APPLICANT:  Mr Fadi Adeeb Abdallah Qandah

CASE NUMBER:  1504948

DIBP REFERENCE:  BCC2015/462491

MEMBER:Deborah Morgan

DATE:9 October 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 09 October 2015 at 8:54am

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 (the delegate) on 26 March 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 11 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 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 on the evidence that the visa applicant has a genuine intention to only visit Australia.

5. The review applicant appeared before the Tribunal on 22 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Charbel Elias. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Claims

7. The visa applicant was born in Jordan on 15 January 1984. He declared in his visa application that he is unemployed. He claimed that he grows olive trees to produce olive oil and his focus is on body building, and he does some personal training.

8. The visa applicant claimed that his father, who died in 2011, left him money and real estate. The land can be leased. Evidence of ownership by his father of land in Jordan was provided, noting that his ownership was part shares in some of the allotments. A translated document provided information about the distribution of the visa applicant’s father’s estate and states the visa applicant is entitled to 14 of 40 shares (Department file, folios 59 & 60). 

9. The visa applicant declared he has $16,000 in savings and his sister, the review applicant, and her husband will provide him with accommodation in Australia. The review applicant offered a security bond to the Department (Department file, folio 5).

10. A Department file note recorded the evidence of the visa applicant’s total bank savings equated AUD 9,963.

11. The visa applicant resides with his mother and older brother in Jordan. His brother is a lawyer with the defence department and his mother receives a pension. One of his sisters resides in the USA and his remaining sibling is the review applicant, who became a citizen of Australia on 22 April 2013 (Department file, folio 6).

12. The visa applicant has not previously travelled to Australia. However, it is claimed that his mother, Mrs Jenifief Mousa Saleem Jwainat visited this country for 3 months in late 2007 and early 2008.

13. The delegate recorded that the visa applicant was refused a Visitor visa on 18 August 2009, 26 February 2010 and 15 December 2014. Review of the refusal dated 26 February 2010 was sought, and the Migration Review Tribunal, differently constituted, affirmed the decision to refuse the visa on 8 October 2010.

    The Tribunal hearing

14. There is no record of the review applicant having responded to the Tribunal’s hearing invitation in writing. However, on 21 September 2015, the review applicant’s husband informed the Tribunal by telephone that he and the review applicant would attend the hearing on 22 September, 2015.

15. Immediately prior to the hearing the review applicant submitted a Power of Attorney document pursuant to which she authorised the visa applicant to act on her behalf in relation to selling her share in the family land in Jordan together with copies of a bank account in the joint names of the review applicant and her husband showing credit exceeding $19,700.

16. The review applicant’s oral evidence is summarised as follows: the visa applicant would need to return to Jordan to deal with the sale of land that formerly belonged to their deceased father. She said that a good offer from a neighbour is currently being negotiated.

17. The visa applicant is single. She explained that culturally it is not permissible for him to have a girlfriend until he meets a female whom he will marry. He resides with their mother and brother at the family home because he and his brother are not married.

18. The visa applicant is unemployed and last had paid work about 5 years ago. He passes his time by exercising and volunteer work as a gym instructor.

19. The visa applicant is a practising Christian.

20. The Tribunal informed the review applicant that information available on the internet ( indicates that the unemployment rate in Jordan was 11.9% in July 2015. The Tribunal asked whether for that reason it has been difficult for the visa applicant to find employment. The review applicant said that looking for employment is not applicable to the visa applicant because he is considering opening a business.

21. The visa applicant receives income by way of rental from properties owned by their late father. He manages their mother’s financial affairs because their older brother is too busy with work. Their mother is comfortably well off because their father had two pensions which she receives after his death.

22. The review applicant said she is not sure if the visa application under review is the visa applicant’s third or fourth visitor visa application.

23. Their mother visited Australia about 8 years ago. No other family member has been to Australia.

24. The visa applicant would not work or study in Australia. Because the visa applicant has money, he would not seek work in Australia.

25. The visa applicant does not fear persecution in Jordan. He lives in a peaceful neighbourhood.

26. The Tribunal asked the review applicant to state the incentives that might cause the visa applicant to return to Jordan at the end of his permitted time in Australia. She said the visa applicant needs to return home to assist their mother and that his land and home in Jordan are reasons for him to depart Australia on time. She said he also needs to return to marry and start a business. The Tribunal asked her to explain why the visa applicant has not started a business by now. She said that is because he is too young and has a comfortable lifestyle.

27. The Tribunal referred the review applicant to the Department of Foreign Affairs’ smart traveller website and informed her that it warns travellers to Jordan to “exercise a high degree of caution owing to threat of terrorist attacks.” In response she said that Jordan is peaceful and its intelligence operations in relation to Syria and Iraq are very good.

28. In relation to her financial situation, the review applicant said her husband cannot work owing to an accident some years ago and he receives a government pension. She receives a carer’s pension because she cares for him.

29. The review applicant said her offer of a security bond remains and that she wants the visa applicant to be able to make repeated visits to Australia.

30. Mr Elias told the Tribunal that he has received a government pension since 2004 when he was involved in a motor vehicle accident.  He invited the visa applicant to Australia to cheer them up.

31. Mr Elias told the Tribunal that the incentives for the visa applicant to return to Jordan are his family and the family properties in relation to which the visa applicant receives rent. The visa applicant has a comfortable and peaceful life in Jordan. He said that the visa applicant is “not a crook” and will not overstay. He told the Tribunal that there is no future in the visa applicant running away while in Australia. The visa applicant just wants a holiday in Australia. He and his wife hope that in the future all her family will visit Australia together one day.

    Further new documentary evidence

32. Photographs of the visa applicant at home in Jordan together with a copy of a bank account in Mr Elias’ name showing a credit balance exceeding $21, 500 were submitted to the Tribunal on the day after the hearing. 

    Findings

33. 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.

34. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister, the review applicant who resides in South Australia with her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

35. 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)). In this case the visa applicant has not ever visited Australia and, accordingly, this subclause does not apply.

36. 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.

37. The review applicant gave oral evidence that the visa applicant would comply with each of the above visa conditions.

    Other relevant matters

38. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It is critical to the grant of a Visitor visa that if granted it gives the visa holder the right to stay in Australia on a temporary basis only. Accordingly, an applicant needs to demonstrate a genuine intention to depart Australia before the term of the Visitor visa expires. The Tribunal therefore has carefully considered the visa applicant’s personal circumstances that may encourage him to remain in Australia beyond the term of a visit or to depart within time.

39. The Tribunal is satisfied that the visa applicant lives in Jordan with his mother and his elder brother. The Tribunal accepts that the visa applicant has family ties to Jordan.

40. The Tribunal accepts that the visa applicant is not involved in a personal relationship at time of decision.

41. The Tribunal is satisfied that the visa applicant is unemployed and, according to the review applicant, he has not had paid employment for about five years. The review applicant told the Tribunal that one of the reasons the visa applicant would return to Jordan is to start his own business. As the visa applicant has not ever claimed he intends to start a business, and as no other information has been provided about his intention to conduct his own business, the Tribunal gives this claim by the review applicant negligible weight. The Tribunal fails to be satisfied that the visa applicant has any employment incentive to return to Jordan. 

42. The Tribunal is satisfied that the visa applicant has savings equating to approximately AUD 10,000. However, the Tribunal does not accept that his savings would be a material incentive to return to Jordan because they would be easily transferable to Australia.

43. The Tribunal acknowledges that the visa applicant has an interest in land that appears to be registered in his late father’s name and that he has an entitlement exceeding 25% of his late father’s assets. The Tribunal is not satisfied that the visa applicant’s entitlement to portion of his late father’s estate would be a material incentive for him to return to Jordan because if those assets were converted to cash, that would be easily transferable to Australia. If the assets remain in their current form, if anything needed to be done or paid in relation to them, the visa applicant from Australia could delegate his duties to another person, most likely his elder brother.  

44. The review applicant provided documentation that indicates their family has decided to sell one section of their father’s land and the visa applicant has her power of attorney for that purpose. She claimed that the visa applicant’s responsibilities in relation to selling the land are an incentive for him to return to Jordan. Again, if the visa applicant was in Australia, the various family members could delegate powers of attorney to the visa applicant’s elder brother to manage any sales or any transactions in relation to the land.

45. The review applicant further claimed that the visa applicant would need to return to Jordan to continue to manage his mother’s financial affairs. The Tribunal gives little weight to this claim because the evidence is that his mother receives rental and two pensions by way of income. In the Tribunal’s view the visa applicant’s elder brother who lives with their mother, could take over the role of assisting her to manage her income. 

46. For the above reasons the Tribunal does not accept that the visa applicant has any material financial incentives to return to Jordan.

    Conditions that may encourage the visa applicant to remain in Australia

47. The visa applicant is a 31 year old single, unemployed Jordanian.

48. The visa applicant has two family members in Jordan, one in USA and the review applicant in Australia. The Tribunal accepts that he has a close and strong relationship with the review applicant and her husband and considers that may act as an incentive for him to remain in Australia.

49. The Tribunal accepts that the review applicant and her husband are financially secure with stable income by way of government pensions and ownership of their own home. The Tribunal has formed the view that this is an incentive for the visa applicant to remain in Australia because his sister could fund his ongoing stay for an indefinite period.

50. The Tribunal has taken into account the significant disparity in economic and security conditions between Jordan and Australia which could provide an incentive to the visa applicant who is unemployed, to remain in Australia beyond the term of his visa. 

51. On balance, having weighed the information before it, the Tribunal fails to be satisfied that the visa applicant’s ties to Jordan are strong enough to prevail over the disincentives to return to his home country.

52. 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

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

    Deborah Morgan
    Member