1512523 (Migration)

[2016] AATA 3527

1512523 (Migration) [2016] AATA 3527 (11 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Charbel Gerges Touma

VISA APPLICANT:  Mr Gerges Touma

CASE NUMBER:  1512523

DIBP REFERENCE(S):  BCC2015/1792650

MEMBER:Linda Symons

DATE:11 March 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 11 March 2016 at 9:18am

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 4 July 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 22 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 She was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 9 March 2016 to give evidence and present arguments. The Tribunal heard evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his uncle and family. This is a purpose for which a visa in the Sponsored Family stream may be granted.

10. 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.

11. There is no evidence before the Tribunal to indicate that the visa applicant has previously visited Australia.

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

13. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that he and his wife own Fixall Plumbing Services. He stated that they also own a six bedroom house in Toongabbie. He has provided the Tribunal with a bank statement from the ANZ Bank in relation to the business which shows a balance of $105,463.55 as at 29 February 2016. He stated that the visa applicant is his brother’s son and he has known him since he was born.

14. The review applicant stated that he visits Lebanon often and during his visits he has spent a considerable amount of time with the visa applicant. He stated that the visa applicant has driven him to places, showed him around and even lent him his car. He stated that he invited the visa applicant to come to Australia for a holiday for one month. He stated that he will pay for his airfare and expenses in Australia and will accommodate him in Australia. The Tribunal has been provided with a Statutory Declaration dated 3 February 2016 from the review applicant’s wife. She confirms that the visa applicant would live with them in Australia and that she is prepared to show him around Sydney to thank him for the warm reception and hospitality that the review applicant receives from him when he visits Lebanon.

15. The visa applicant gave evidence that he is a soldier in the Lebanese army and joined the army on 4 August 2012. He stated that he gets one month leave a year and has accrued two months leave. He stated that he needs to get permission from the army to leave the country and has already obtained permission from the army to have one month leave outside Lebanon. When asked about his assets, he stated that he purchased an apartment in Bhabouch about 4 or 5 months ago. He stated that he also owns a car. He stated that he has no debts. When asked how he was able to do this, he stated that he saved his wages. He stated that he had savings of approximately $8,000.00. He stated that he is able to pay for his airfare and living expenses in Australia and his father will also assist him financially. He stated that he plans to bring about $4,000.00 to Australia. He stated that he has no intention of working or studying in Australia.     

16. In considering whether the visa applicant intends to comply with condition 8503, the Tribunal asked him whether he intends getting engaged or married in Australia. He responded that he does not as he has a fiancée named Sali in Lebanon. He stated that they have not set a date for their wedding yet but plan to get married once he returns from Australia.

17. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length and purpose of his stay in Australia. The review applicant gave evidence that the visa applicant wants to visit Australia for one month to spend time with his family in Australia. The visa applicant confirmed this and stated that he cannot stay any longer than one month. The Tribunal has been provided with a copy of a Statement dated 15 February 2016 from the Commander of Battalion 101 in the Lebanese Army confirming that the visa applicant is a Corporal in the Lebanese army, is in Battalion 101 and is currently in the service. The Tribunal has also been provided with a copy of a letter dated 2 October 2015 from a Commander in the Lebanese army confirming that the visa applicant has been approved to have 30 days leave outside Lebanon.  

18. The Tribunal asked the review applicant what incentives the visa applicant has to leave Australia at the end of his permitted stay. He responded that the visa applicant’s job in the army is his incentive to return. He stated that he has been in the army for 4 years and is entitled to benefits from the army. He stated that he will also guarantee that the visa applicant will return to Lebanon. When asked what would happen if he came to Australia, liked it here, changed his mind and decided that he wanted to stay here, he responded that he would call the Police and get them to put him on an aeroplane back to Lebanon. He stated that he knows the visa applicant well. He stated that the visa applicant loves what he is doing in Lebanon. He stated that the visa applicant is an honest person and would want to keep his word. He stated that he also wants a good record in case he wants to sponsor another family member to visit him. He stated that the visa applicant will go back to Lebanon. 

19. When asked the same question, the visa applicant responded that his work and his service in the Lebanese army are important to him and he would not leave the army. When asked what would happen if he came to Australia, liked it here, changed his mind and decided that he wanted to stay here, he responded that he cannot do that. He stated that if he did that and returned to Lebanon at a later date he would be imprisoned.

20. The Tribunal discussed with the visa applicant country information on the security situation in Lebanon, the particular vulnerability of soldiers in the Lebanese army and its concerns that these issues would provide a strong incentive for him not to return to Lebanon. He responded that Lebanon is his country and his homeland and he would not leave the army or his homeland no matter what happens. He stated that he lives with the other soldiers and they are like his brothers.

21. When the Tribunal discussed this issue with the review applicant, he stated that the visa applicant joined the army voluntarily and no one forced him to join the army. He stated that at the time he joined the army there were worse problems in Lebanon than now. He stated that his family were surprised when he joined the army. He stated that they have a family business in Lebanon and the visa applicant can earn more money from the family business. He stated that the visa applicant has liked the army since he was a child. He stated that even as a child he liked uniforms. He stated that the applicant is living on an army base in Khoura and has also previously worked in Beirut. He stated that he has never been involved in armed conflict. He stated that there are no problems in the area that he is located in.

22. The review applicant stated that at the moment things are alright in Lebanon. He stated that he has cousins who have visited Australia and returned to Lebanon. He stated that his sister and brother in law came to Australia in December 2015 on 3 months visas and returned after one and a half months. He stated that his mother came to Australia in December 2015 on a 6 months visa and will be departing on 11 March 2016. He stated that his family has a good immigration history in Australia. 

23. The review applicant gave evidence that he is prepared to lodge a security bond of $10,000.00 to $15,000.00. He stated that his daughter is getting baptised on 24 April 2016 and he would like the visa applicant to be here to be part of the family celebration.

24. The review applicant’s migration agent submitted that the visa applicant has one hundred and four close family members in Lebanon as against nineteen in Australia. He stated that he has been in the Lebanese army for nearly four years and enjoys the benefit of free comprehensive health cover. He stated that he lives on the barracks while on duty and with his parents when off duty and has no living expenses. He submitted that his secure employment is an incentive for him to return to Lebanon. He stated that the area the visa applicant is in is safe. He provided a letter dated 24 February 2016 from the mayor who stated that “the security situation in our region in Bhabouch as well as the nearby villages in El Koura and El Batroun districts are normal until present date”. (sic) He provided details of other close family members who were granted Visitor visas, came to Australia and returned to Lebanon in compliance with their visas. He submitted that the security incidents the Tribunal referred to were some time ago and the security situation has improved since then.

25. Having considered all the evidence, the Tribunal found the visa applicant to be a credible witness. The Tribunal accepts that he has a strong commitment to his job and that this would provide a considerable incentive for him to return to Lebanon. The Tribunal also found the evidence of the review applicant to be persuasive. The Tribunal accepts that the review applicant’s desire to have a good record with the Department and the ability to sponsor family members to visit Australia in the future would provide him with a strong motive to ensure that the visa applicant complies with the conditions of his visa. The Tribunal places considerable weight on the immigration history of the visa applicant’s family members in Australia.

26. Therefore, the Tribunal accepts that the visa applicant intends only to visit the review applicant and his other family members in Australia. The Tribunal accepts that the review applicant is prepared and able to provide financial security to ensure that the visa applicant complies with the conditions of his visa and that this would be a strong incentive for the visa applicant to comply with his visa conditions.

27. 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

28. 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.

    Linda Symons
    Member