1507077 (Migration)

[2015] AATA 3389

1507077 (Migration) [2015] AATA 3389 (28 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Youssef Jawad

VISA APPLICANT:  Mr Mouhamad Jawad

CASE NUMBER:  1507077

DIBP REFERENCE(S):  BCC2015/848312

MEMBER:Mary-Ann Cooper

DATE:28 August 2015

PLACE OF DECISION:  Melbourne

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 28 August 2015 at 2:20pm

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 16 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 16 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 he was not satisfied that the applicant genuinely intended a temporary stay.

5. The review applicant appeared before the Tribunal on 26 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. 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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

9. 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)). There is no evidence that the visa applicant has previously travelled to Australia and thus there is no evidence of non-compliance with previously held visas to Australia (cl.600.211(a)).

10. 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.

11. As indicated in his visa application, the visa applicant is a Lebanese citizen, born in 1995. There is no information before the Tribunal suggesting that the visa applicant would engage in any work, study or training in Australia for more than three months. Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. In the circumstance of this matter, the Tribunal has carefully considered whether the visa applicant intends to comply with condition 8531. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

12. The review applicant told the Tribunal that he had come to Australia on a partner visa in 2006. He said he lives with his wife and their two children in their own property and he is self-employed as a tiler. He said he has siblings in Australia and in Lebanon and that his parents also reside in Lebanon. He said that his father had previously come to Australia on a visitor visa and had returned in compliance with that visa. He told the Tribunal that the visa applicant, his nephew, lived with his family in Lebanon and had a fulltime job. He said the purpose for sponsoring him to come to Australia was in recognition of the support he had provided to the review applicant’s parents (also the visa applicant’s grandparents). He said they lived in the same village and his nephew was very close to them and looked after them. He confirmed that the applicant had only one month’s leave and said he would live with him and totally support him if he came to Australia. When asked what plans he had made for the visit, he said he just wanted to show him around and to give him an opportunity to be with the rest of the family.

13. The Tribunal invited the review applicant to comment on the Department’s non-return rates report[1] that indicates that persons from Lebanon are more likely than persons from many other countries not to return to their home country after travelling to Australia on a visitor visa. It also sought his comments on a recent newspaper article and the Department of Foreign Affairs and Trade advice in relation to Lebanon, which indicates that the situation is insecure and volatile, particularly in Northern Lebanon.[2] The review applicant acknowledged the situation and said he was sad about it but that the visa applicant lived far away from the Syrian border and had nothing to do with any of the trouble or violence. He said his nephew had his work and family in Lebanon and would return. According to the review applicant, he is especially close to his grandparents and they rely on him. He maintained that he would not allow the visa applicant to remain beyond his permitted stay. He said that he has his family and business in Australia and he would not do anything to jeopardise that by allowing the visa applicant to remain in Australia in contravention of his visa conditions, He offered to pay a substantial bond if required as a guarantee that his nephew would leave Australia as required.

    [1] Dept. of Immigration. Modified Non-Return Rate Quarterly Report Ending at 30 June 2013

    [2] accessed 26 August 2015. And accessed 24 August 2015.

14. The Tribunal then spoke to the visa applicant. He confirmed that he lived with his family in the Akkar district of Lebanon and that he worked fulltime. In relation to his assets, he said he had a house but I was in his father’s name. He gave consistent evidence as to his family members in Australia (various aunts and uncles). He said he had not previously applied for a visitor visa or travelled outside Lebanon. Consistently with the evidence of the review applicant, he said that he applied for the visa because his uncle wanted to give him a holiday in Australia as recognition for the care he provided for his parents/grandparents. He confirmed that he wished to visit for one month. He also confirmed that his uncle was fully funding the trip. The Tribunal also raised with him the issues concerning the dangerous situation in Lebanon (as noted above) and the relatively high non-return rate for Lebanese visitor visa holders. He said that everything was under control in the area in which he lived, that the Lebanese Armed Forces had ‘got rid of’ whoever needed to go and that they were on top of things in Lebanon. In any event, he said that they were located far away from any of the disturbances and problems. He denied that he had ever been the subject of adverse attention from the authorities or that he feared harm in Lebanon from any group. When asked about his incentives to return to Lebanon, he said his grandparents depend on him and he helps them with many things. He denied that anyone else in the family could look after them and indicated that he was very close to them and at times stayed with them. He also claimed to have a secure life and future in Lebanon and would definitely return. He reiterated that he only wanted to come for one month.

15. The Tribunal found the evidence of both applicants to be consistent and credible. The Tribunal also accepts as persuasive the evidence of the visa applicant that he is close to his grandparents in Lebanon and intends this visit for the sole purpose of spending some time with his uncle, who wishes to repay him for that care by providing this trip for him.

16. The Tribunal has given weight to the Department of Foreign Affairs and Trade advice in relation to Lebanon, noted above , and the rate of ‘non-return’ of Lebanese nationals, and considers these factors are outweighed by factors that indicate that the visa applicant’s intention to visit Australia temporarily is genuine. As noted above, the Tribunal accepts the consistent evidence as to the visa applicant’s strong bonds and sense of responsibility to his grandparents and that this presents a compelling incentive for his return. It also notes that the visit requested is for a relatively short term of one month, which the Tribunal considers is consistent with the purpose of the type of visa sought. It further accepts as convincing the strong evidence of the review applicant that he will ensure that the visa applicant complies with any visa conditions, which was underscored by his offer to pay a bond. On this basis, the Tribunal considers that there is nothing in the visa applicant’s personal circumstances which indicates that he intends to act in any way inconsistently with any of the abovementioned visa conditions.

17. The Tribunal is therefore satisfied that he intends to stay in Australia temporarily for the purpose of visiting his uncle and other family (cl.600.211(b) and (c)).

    CONCLUSION

18. 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

19. 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.

    Mary-Ann Cooper
    Member