1505521 (Migration)

[2015] AATA 3424

1505521 (Migration) [2015] AATA 3424 (10 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Wajiha Dannawi

VISA APPLICANT:  Mr Moustafa Zidane

CASE NUMBER:  1505521

DIBP REFERENCE(S):  BCC2015/1095986

MEMBER:Belinda Mericourt

DATE:10 September 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; and

·cl.600.212 of Schedule 2 to the Regulations.

Statement made on 10 September 2015 at 11:54am

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 on 13 April 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 31 March 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 that the visa applicant genuinely intended to only visit Australia temporarily.

5. On 23 April 2015 the visa applicant’s sponsor, hereafter referred to as the review applicant, lodged an application for review of the Department’s decision with the Tribunal.

6. The review applicant appeared before the Tribunal on 10 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages via conference telephone.

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

   BACKGROUND

8. The visa applicant was born in January 1987 in Lebanon and is a citizen of Lebanon.  He lives in El-Minieh, Northern Lebanon. He has never married or been in a de facto relationship.  His mother is deceased and his father, three brothers and three sisters reside in Lebanon.  One brother resides in the USA, one sister resides in Jordan and one sister resides in Australia.  At the time of application, the visa applicant stated that he had been employed as a ‘Sanitary Master’ for more than five years.

9. The visa applicant’s sponsor, (the review applicant), was born in September 1975 in Lebanon and is an Australian citizen.  She is the visa applicant’s sister. She is married with six children aged from 6 weeks to 20 years.

10. The review applicant has previously sponsored three brothers and a sister for visits to Australia in 2004, 2007, 2008 and 2013. 

11. Department records confirm that the applicants’ brother, Rahib Zaydan, was granted a family sponsored visitor visa on 13 February 2004 and entered Australia on 26 February 2004.  He departed Australia on 22 May 2004 before his visa period ceased.

12. Department records confirm that the applicants’ brother, Mohamad  Zeidan, was granted a family sponsored visitor visa on 11 February 2005 and entered Australia on 26 February 2005.  He departed Australia on 23 May 2005 before his visa period ceased.  He was granted a further family sponsored visitor visa on 26 October 2007 and entered Australia on 20 November 2007.  He departed Australia on 18 February 2008 before his visa period ceased.

13. Department records confirm that the applicants’ brother, Salim Zeidan, was granted a family sponsored visitor visa on 16 January 2007 and entered Australia on 31 January 2007.  He departed Australia on 28 April 2007 before his visa period ceased.

14. Department records confirm that the applicants’ sister, Salime Zaydan, was granted a family sponsored visitor visa on 18 December 2012 and entered Australia on 2 February 2013.  She departed Australia on 17 March 13 before her visa period ceased.

15. In the Decision Record dated 13 April 2015, the delegate stated that “recent reports from DFAT indicate that Lebanon is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and violence due to the ongoing civil war in Syria.  Whilst (the delegate) accepted that the applicant may not be directly affected by the civil unrest occurring in parts of Lebanon, these reports indicate that the north of Lebanon is most affected.  Given such information, the civil unrest in Lebanon at this time may encourage the applicant to remain in Australia after the expiry of his visa, if granted”.  The delegate also considered that as the applicant is a 28-year-old single male of working age and his family ties to Lebanon are limited to non-dependent relatives, specifically his father and five siblings, that he had concerns about the applicant’s incentives to remain in Australia rather than return to Lebanon.  The applicant had not provided evidence from his employer that he had been granted leave from his employment.  The delegate was concerned that the employment opportunities in Australia and large disparity between wages available in Lebanon and those in Australia would provide the applicant with further incentive to remain in Australia.

    TRIBUNAL HEARING

16. The visa and review applicants gave consistent and credible evidence to the Tribunal which is summarised as follows:

17. The visa applicant is single and not engaged to be married. He lives with his father and siblings in the family home. He owns two properties of his own but does not plan to move into a house of his own until he marries.

18. The visa applicant has qualifications as a plumber and builder in Lebanon. He is currently a site manager on a building site and self-employed in his own business. Some of his colleagues can replace him during his absence. He has had his own business since 2007/08 and claims that business is good and he is very busy at the moment.

19. The review applicant’s spouse came to Australia in 1977 during the civil war. They have six children aged from 6 weeks to 20 years. They cannot take the family to Lebanon due to the prohibitive costs of taking a family of 8 people.  The visa applicant has not seen his sister for some years and since the last time they saw each other she has had a baby.  He would like to visit his sister and her family and see some of Australia as four of his siblings have all visited and enjoyed having a holiday in Australia.

20. The visa applicant is a Sunni Muslim. He claims that neither he nor any members of his family have been affected by the civil unrest in northern Lebanon. The review applicant is in contact with her family every second day and they live in a village - Beit Jida which has not been directly affected. The visa applicant claimed that he and his family have not been affected civil unrest in their area or by refugees coming over the border from Syria and the “situation is safe” where he lives and works.

21. The review applicant and her spouse were adamant that her brother would return before his visa ceased because they will not allow him to stay and breach his visa conditions. The main purpose for his visit is to spend time with the review applicant. All her siblings who have stayed previously have departed within their visa periods. He also wants to visit extended family members and see some of the sights in and around Sydney.  His sister and her daughter only stayed 6 weeks but told him this was not long enough to see everything.

22. The Tribunal put to both the review and visa applicants that the statistics for young single men visiting from Lebanon and then overstaying their visas are very poor.  Both the review and visa applicants acknowledged that this may be the case for some young men, particularly people who do not have good employment, however, the visa applicant said that he had his own successful business and two properties (assets) and therefore he has significant incentive to return to Lebanon.

23. The visa applicant will pay for his own air ticket. He will be accommodated by the review applicant and her spouse who will cover his day-to-day expenses.

24. The review applicant and her spouse are willing and able to pay an amount of $10,000 as a security bond if the Department requires them to do so.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.

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

27. 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)).

28. The visa applicant has never previously travelled to Australia.  However, four of his siblings have been granted family sponsored visitor visas in the past and all four have complied with their visa conditions.

29. 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.

30. The visa applicant is an experienced professional tradesman who gave evidence to the Tribunal that he has had his own successful business for over seven years.  He owns two properties in El Minieh and has provided documents to the Department related to these properties.

31. Based on the evidence before it, the Tribunal is satisfied that the visa applicant will not work or undertake study during the period of his visit: 8101 & 8201.

32. The Tribunal is satisfied that the visa applicant is not entitled to a substantive visa, other than a protection visa, while remaining in Australia: 8531.

33. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The applicant lives in El Minieh-El Dannieh, Northern Lebanon. The Tribunal had regard to the DFAT travel advisory of 3 September 2015 which stated that there are ongoing clashes between Lebanese security forces and militants in northern Lebanon north of a line from Tripoli to Sir Ed Dinniyeh and Arsal.  There has been an increase in sectarian violence in northern Lebanon due in part to the crisis in Syria.

34. Both the review and visa applicants gave evidence to the Tribunal that the village in which the visa applicant resides - Beit Jida, and the area in which the visa applicant works have not been affected by sectarian violence, civil unrest or refugees coming over the border from Syria and neither the visa applicant or his family members have suffered any particular difficulties. 

35. On balance, weighing up both the incentives for the visa applicant to return and the issues related to civil unrest in northern Lebanon, the Tribunal is satisfied that the visa applicant’s  incentives to return to Lebanon outweigh his incentive to remain in Australia.

36. The Tribunal had regard to the review applicant’s evidence that she is willing and able to provide a security bond of $10,000 to the Department if required.

37. The Tribunal had regard to the fact that four of his siblings have made five visits to Australia in the past, the most recent being in early 2013, and all of them have returned to Lebanon within their visa periods.

38. The Tribunal is therefore satisfied that the visa applicant will not remain in Australia after the end of his permitted stay: 8531.

39. The Tribunal had regard to the review applicant’s evidence that she is willing and able to provide a security bond of $10,000 to the Department if required.

40. 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.

41. The visa applicant gave evidence to the Tribunal that he is going to pay for his own airfare and his sponsor, the review applicant, will accommodate him and pay the day-to-day expenses during his visit.

42. The Tribunal is therefore satisfied that the visa applicant has adequate means and access to adequate means to support himself during the period of his intended stay in Australia.  He therefore meets the requirements of cl.600.212.

    DECISION

43. 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; and

    ·cl.600.212 of Schedule 2 to the Regulations.

    Belinda Mericourt  10 September 2015
    Member