1509206 (Migration)

[2016] AATA 3275

1509206 (Migration) [2016] AATA 3275 (15 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Adnan El Zohbi

VISA APPLICANT:  Mr Jneid Al Zouhbi

CASE NUMBER:  1509206

DIBP REFERENCE(S):  bcc2015/1718837

MEMBER:Josephine Kelly

DATE:15 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2016 at 2:55pm

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 26 June 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 15 June 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 of concerns about whether the visa applicant was intending to travel for reasons other than a genuine temporary stay in Australia given that he was to leave his employment for 49 days to travel to Australia while not receiving remuneration, he has no previous travel history and therefore cannot demonstrate compliance with a visa and that the current instability in Northern Lebanon may be a disincentive for him to return within the validity of his visa. The delegate also took into account the information the Department holds about non-return rates of persons holding visitor visas demonstrates that the return rate for Lebanon is higher than the general average. 

5. The review applicant appeared before the Tribunal on 21 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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

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 brother and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. The Tribunal makes the following findings based on the information provided by the visa applicant and the review applicant.  The visa applicant was born on 2 March 1992 and is a citizen of Lebanon. He is currently residing in a village in the North Governorate of Lebanon.  His parents, three sisters and one brother live in the same town.  One of his sisters is married and works.  Her husband works in Tripoli three days a week.  He has one brother who lives in Australia, the review applicant. 

10. The visa applicant has been working for 18 months in the sales division of the Lebanese Textile Company in Beirut receiving $800 USD a month.

11. 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)).

12. The visa applicant has no relevant travel history to Australia. He has travelled to Saudi Arabia twice but I give little weight to that travel which was for the purpose of religious observance. He was refused a visitor visa about two years ago.

13. 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.

14. Relevant to the above conditions are the following matters. I accept that the visa applicant does have a job working for his father’s friend in Beirut which involves daily travel and sometimes staying in Beirut overnight. He claimed that he was entitled to a month’s leave for each year he has worked, that is, he claims he has accrued two months’ paid leave and can take another month’s leave without pay. He and the review applicant were consistent in saying that the visa applicant has a girlfriend, although when talking about his girlfriend at first, the interpreter said she was his fiancée.  After further questioning, it is clear that there is no agreement to marry and they “hang out” together.  The visa applicant also claimed that he was going to build a house on land he owns.   I was concerned that the transfer of land dated 17 March 2015 may have been for the purpose of supporting the application. Whether it was or not, I give the ownership of land little weight as an incentive for the visa applicant to return to Lebanon.  The review applicant also owns land in Lebanon.  He is a permanent resident of Australia.

15. I raised with both the review and visa applicants, the instability in Lebanon which may be a disincentive for the visa applicant to return from  Australia.  They both told me that their village was not subject to violence.  The review applicant gave a lengthy answer talking about how his family is very well known, that he has relatives in various government jobs and that the visa applicant has applied for a government job.  When I pointed out that the visa applicant had been working for 18 months and could have applied earlier, the review applicant said that there were difficulties because there had been no government.  I accept that there has been an impasse in relation to the election of the President which should have occurred in April 2014.[1]  However, that impasse continues.  As I said to the review applicant, I was concerned that that evidence was given to improve the chances of the visa applicant being granted a visa. 

    [1] Department of Foreign Affairs and Trade Country Information Report on Lebanon dated 18 December 2015 at [2.27].

16. I accept that there is no evidence to suggest people like the visa applicant are at risk from sectarian violence in his home village.  However, the review applicant said that one of the reasons he came to Australia was because of the violence in Tripoli at the time he came and he acknowledged that young Lebanese men marry Australian girls to get away from the violence in Lebanon.  He also said that he wanted to develop himself and the Lebanese government does not allow him to.

17. I accept that there is a history of violence in Tripoli.  The review applicant said that the security situation was very difficult when he came and suggested that it is not now. However, the recent history of Lebanon is one of instability which is quite unpredictable. 

18. I have considered the visa applicant’s financial records.  I am not satisfied that they reflect his actual financial position because he gave inconsistent evidence about the source of some large telegraphic transfers.

19. I have considered whether the migration history of the visa applicant’s family requires that greater scrutiny be given to the visa applicant’s application.  Based on the review applicant’s migration history, it does not because there has not been any non-compliance with visa conditions or other migration law.

20. I have taken into account the non-return rate for Lebanon for persons visiting Australia which is used as an indicator of visa compliance.  It is higher than the general average. 

21. I have taken into account that the visa applicant applied for a visitor visa two years ago, which on the evidence was before he began his current job. 

22. I am mindful that visa applicants may seek to satisfy the requirements for the visa they have discerned from a past refusal by providing supporting evidence, such as greater financial resources than they actually have although they are genuine in wishing to visit Australia temporarily.  However, in the circumstances, I am not satisfied this is such a case.

23. Taking into account all those matters, I am not satisfied that the visa applicant’s connections with Lebanon are such that he will comply with his visa conditions, in particular that he not overstay his visa and not work.  

24. The Tribunal has also considered all other relevant matters (cl.600.211(c)). I have taken into account that the review applicant is prepared to sponsor his brother however that does not alter my assessment of the visa applicant’s intention.

25. 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

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

    Josephine Kelly
    Senior Member