1511415 (Migration)

[2016] AATA 3126

1511415 (Migration) [2016] AATA 3126 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MAHMOUD MOHAMAD EL MASRI

VISA APPLICANT:  Mr FAWAZ AL MASSRI

CASE NUMBER:  1511415

DIBP REFERENCE(S):  BCC2015/2195642

MEMBER:Melissa McAdam

DATE:27 January 2016

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 27 January 2016 at 5:15pm

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 August 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 review applicant was represented in relation to the review by his registered migration agent.

3. The visa applicant applied for the visa on 28 July 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.

4. 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.

5. The visa applicant provided the following information in his visa application:

   a.The visa applicant was born in 1993 and lives in El Minieh in North Lebanon. He is a Lebanese citizen.

   b.He wants to visit Australia between 1 August 2015 and 14 September 2015 to visit his brothers and their families and for tourism.

   c.He has a fiancée, Wissal, who lives in Lebanon. His parents, one brother and four sisters, and three step siblings also live in Lebanon. His other three brothers live in Australia. He has several other siblings who live elsewhere.

   d.He has owned a car trading store since May 2015. He will bring $3,000 with him to support himself while in Australia.

   e.He was refused a visitor visa in 2013.

   f.He submitted his bank account statements showing a balance of approximately $7,000; car ownership paper; lease agreement; letter from town official that he would return to Lebanon to be married; and Lebanese identity documents.

6. The review applicant provided the following information in the visa application:

   a.The review applicant is the visa applicant’s brother. He lives in Australia and is unemployed because he is the carer for his son.

   b.He submitted his Australian passport, bank statement showing pension payments and a water bill.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because his recent employment was weak incentive to return home; the requested 45 day stay was not consistent with his absence from employment and lack of remuneration given he has just opened his business; and reports of ongoing political and sectarian tensions in the north of Lebanon.

8. The review applicant appeared before the Tribunal on 20 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the review applicant’s wife,  Larra Charb, and the review applicant’s brother, Yakob El Masri. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

9. The following is a summary of the information given by the review applicant:

   a.The visa applicant wants to come to Australia to see his relatives here and see sights.  He would like to come for one or two months. He still wants to come although Eid has passed as he wants to have some travel and fun before he gets married. He plans to be married at the end of the year.

   b.The review applicant and three of his siblings live in Australia.

   c.The review applicant came to Australia in 1997 on a Spouse visa.

   d.The review applicant has previously sponsored four of his other siblings to visit Australia, namely Mustapha, Roukhaya, Abdul, and Massri. They came for a holiday. They each complied with their visa conditions and departed Australia before the expiry of their visas. They are living in Lebanon.

   e.While the visa applicant visits Australia his business will be run by his employee.

   f.The visa applicant has a good and comfortable life in Lebanon. He has no problems. There are no security problems in his area. The review applicant visited in 2014. The problems elsewhere in Lebanon do not affect the visa applicant’s home area. It is all quiet. The visa applicant has no problems with militia, extremists, or Salafists.  He is not being pressured to fight in Syria.

   g.The visa applicant lives with his parents in Lebanon.

   h.The visa applicant’s fiancée is Wissal Sabour. She lives in a village close to the visa applicant.

   i.The visa applicant will return to Lebanon because he will get married there and because he has his business to run. He does not want to live in Australia. If he did want to live in Australia he could marry someone here and come on a spouse visa but he doesn’t want to and he is marrying in Lebanon.

   j.The visa applicant has money to support himself. He owns two cars and a house. He has $US 10,000 he can use when he visits Australia. His siblings in Australia will also support him. He will be accommodated by the review applicant.

   k.The review applicant can lodge a security payment to guarantee the visa applicant abides by visa conditions in Australia. If he loses this money it will cause him financial hardship because he has a mortgage.

   l.The review applicant would like to sponsor his other siblings in Lebanon to visit Australia in the future. He is aware this will be difficult if the visa applicant breaches his visa conditions in Australia.

10. The following is a summary of the information given by the review applicant’s wife, Larra Charb:

    a.The visa applicant helps look after his parents in Lebanon. He helps get them food or medicine and pays bills for them. He lives with his parents, two sisters and a brother.

    b.Ms Charb visited Lebanon with her husband in about October 2014. They attended the visa applicant’s engagement ceremony. Ms Charb showed the Tribunal photographs from this occasion. Ms Charb stayed in Minieh when she visited Lebanon. She did not observe any problems there. Minieh was beautiful and life was normal.

    c.The visa applicant has an auto electrical workshop. She speaks to the visa applicant almost every day. He is always busy with his work there. Ms Charb showed the Tribunal a short phone video of the visa applicant’s workshop.

11. The following is a summary of the information given by the review applicant’s brother, Yakob El Masri:

    a.The family is confident the visa applicant will not overstay his visa. The review applicant can pay a security or even lodge his house as a bond. The visa applicant is engaged to be married in Lebanon. If he wanted to move to Australia he would have become engaged to an Australian girl, but this is not what he wants.

    b.It was the visa applicant’s choice to become engaged to his fiancée. The marriage was not arranged by their parents.

12. The following is a summary of the information given by the visa applicant:

    a.He want to come to Australia to see his siblings and sightsee.

    b.After he visits Australia he will return to Lebanon to prepare for his wedding. The wedding will probably be held about eight months after he returns. The wedding will be held in the Minieh Park Reception.

    c.The applicant has an auto-electrical shop. He repairs cars for customers and also fixes up damaged cars to sell. His business is called his name, “Fawaz El Masri”. He has a business card. He emailed a copy of his business card during the hearing and it was shown to the Tribunal. His workshop is located on the ground floor of Tarek Al Ameddine’s warehouse.  The visa applicant started his business about one year ago. He and Tarek Al Ameddine took their lease agreement to the District Commissioner who stamped it. While he is in Australia his employer will run the business. The visa applicant’s nephew and cousin can also help out if needed.

    d.The security situation in Mineh is fantastic. He knows there are problems in some parts of Lebanon but nothing happens in the visa applicant’s home area. The visa applicant has no problems. There are no militant, extremist, Salafist or Syrian groups operating in the visa applicant’s area. Some things happen in Tripoli but not in the visa applicant’s home area. His financial situation is not affected because the Syrian refugees work in different sectors from the work the visa applicant does. The visa applicant is self-employed.

    e.The large cash deposits in his bank account in May 2015 came from the sale of cars. He does not often deposit money in the bank but keeps his cash at home.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. In the present case, the visa applicant seeks the visa for the purposes of visiting his siblings and their families and sightseeing. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

15. 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 visa applicant has not previously held a substantive Australian visa so there is no evidence of former compliance or non-compliance before the Tribunal.

16. 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.

17. The Tribunal accepts the visa applicant has several thousands of dollars in his bank account as verified by his bank statements. The source of funds for the substantial May 2015 remains a little doubtful however regardless whether it was proceeds of his business, or a gift from a relative, or from some other source, the Tribunal accepts the visa applicant has access to this money to support himself in Australia. The Tribunal also accepts that the visa applicant has numerous relatives in Australia who are able to support his visit to Australia and that the review applicant will be providing him with food and accommodation.  In these circumstances the Tribunal considers that there will be no need or desire for the visa applicant to work while in Australia. The Tribunal is satisfied that the visa applicant does not intend to work in Australia.

18. There is no evidence or indication before the Tribunal that the visa applicant wants to study in Australia. The Tribunal is therefore satisfied the visa applicant does not intend to study in Australia.

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

20. The evidence before the Tribunal indicates the visa applicant is a young Lebanese man with some family and work ties to Lebanon. The Tribunal notes that four of the visa applicant’s siblings are in Australia while several siblings, his parents, and his fiancée are in Lebanon. The Tribunal accepts the visa applicant’s family ties in Lebanon are, on balance, stronger that those in Australia.

21. The visa applicant has submitted evidence of his auto workshop in Minieh and the Tribunal accepts he is operating this business. While perhaps not a substantial business the Tribunal considers it represents some local responsibilities and an asset for the visa applicant to return to.

22. The Tribunal further accepts the visa applicant became engaged in 2014, that his relatives attended his engagement celebration, and that he plans to hold his wedding in Minieh around the end of this year. The Tribunal considers that the presence of the applicant’s fiancée in Lebanon is an incentive for him to return, within a short period, to Lebanon.

23. The Tribunal notes information, including from Australia’s DFAT, that the insecurity in North Lebanon is centred on a small area of Tripoli as well as areas close to the Syrian border. While Minieh is located not far from Tripoli the Tribunal accepts that it is not subject to the level of insecurity and conflict which exists, at times, in parts of Tripoli. The Tribunal is satisfied that despite security concerns in parts of North Lebanon the visa applicant’s home area is largely secure.

24. The Tribunal gives significant weight to the good immigration history of the applicants’ siblings who have been granted Visitor visas in the past. The Department’s Movement Records confirm that each of the applicants’ four siblings who came to Australia on Visitor visas, departed Australia before the expiry of their visa.

25. The Tribunal accepts that the proposed duration of stay, one or two months, is reasonable given it will be the visa applicant’s first visit to Australia and his first overseas travel, it is a long distance to travel between Lebanon and Australia, and the review applicant has many relatives in Australia to see and spend time with. The Tribunal accepts that the visa applicant’s auto business can be operated by his employer while the visa applicant is in Australia, so that the business will not be adversely affected by his absence.

26. 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 his desire to sponsor his other siblings to visit Australia in the future. The Tribunal notes that the review applicant is willing to lodge a security sum for the visa applicant’s visit to Australia and accepts this will provide further motivation for the visa applicant to abide by visa conditions and not overstay.

27. 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 see his siblings and their families and sights in Australia.

28. 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

29. 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