1512611 (Migration)

[2016] AATA 3228

1512611 (Migration) [2016] AATA 3228 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs HALA CHAABAN

VISA APPLICANT:  Mr HATEM CHAABAN

CASE NUMBER:  1512611

DIBP REFERENCE(S): BCC2015/2195435 BCC20152195435

MEMBER:Meena Sripathy

DATE:8 February 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 08 February 2016 at 4:45pm

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 14 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 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.

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 that the deteriorating conditions and recent developments in North Lebanon, together with his family ties in Australia may act as incentives for the applicant to remain in Australia beyond the validity of the visa.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa applicant is a 43 year old divorced man from Tripoli, North Lebanon.  His parents are deceased and he has a sister living in Lebanon.  In Australia he has two sisters, two brothers and a young son and daughter.  He is employed as a barber and has been in the same employment for 16 years. The review applicant is the 46 year old married sister of the visa applicant.  Evidence of the visa and review applicants’ family relationship, his children’s Australian passport, his own passport indicating previous visits to Australia and his employment and evidence of approved leave was provided with the application.

7. The review applicant appeared before the Tribunal on 4 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The review applicant was represented in relation to the review by her registered migration agent.

8. The review applicant gave evidence about her current circumstances, migration history and family in Australia.  She lives in her own home with her husband, young son and her brother, who is divorced. Her husband works as a painter, and is self employed.  She came to Australia for the first time in 2005 on a tourist visa to visit her siblings.  She returned the following year on a Partner visa, sponsored by her husband who she met and married during the first visit.  She separated from this partner some two years later. She has three siblings in Australia, all of whom migrated through marriage many years ago. Two of them are still married to the same partner, and the third divorced after having two children.  Regarding the visa applicant’s children in Australia, the review applicant provided the following evidence.  He came to Australia on a sponsored visitor visa in 2007.  During this visit he met a woman, they married and she fell pregnant.  He left Australia within the period of the visa.  They had planned for her to come to Lebanon to live but she later changed her mind.  The following year the visa applicant came again for a visit, and his wife fell pregnant again.  He left within the period of the visa, while his wife was still pregnant.  Some months after giving birth to her second child his wife travelled to Lebanon with the children. During this visit they had some disagreements and she returned and they have since separated.  The visa applicant speaks regularly with his children by phone.  He only wants to come here to visit them.  He would like to be able to come on a regular basis, such as once a year.  Therefore he will comply with conditions on the visa as he knows that if he does not he will not be allowed to come again.  The review applicant told the Tribunal she believes he has a new girlfriend in Lebanon.  He works as a barber and has been with the same employer since before the review applicant came to Australia, so for many years. 

9. The Tribunal spoke with the visa applicant by telephone.  His evidence about his living arrangements and work history was consistent with evidence before the Tribunal.  He provided a consistent account of his past visits and circumstances of his marriage and children born in Australia. He confirmed that he has no desire to live in Australia on a longer term basis, if he did he would have stayed on one of the previous visits, when his wife was pregnant with his children.  He only wants to visit to see his children and his siblings.  He has a new girlfriend in Lebanon and they plan to marry in the future. He also has a stable and long term job and is in a comfortable financial position.  The area he lives in is safe and away from the main conflict areas in Tripoli. There has been conflict in Lebanon throughout his life and he is used to it.  He is not involved in any political or religious organisations and never has been.  He has never been adversely affected by the security situation in his area. 

10. Following the hearing, the Tribunal request, and the applicant provided, evidence of his current bank balance showing savings of almost USD$9000 as at February 2016, and a letter from the mother of his children indicating she has no objections to his visit to see his children and they have made arrangements for this.  An officer of the Tribunal confirmed the contents of the statement directly with the visa applicant’s ex wife in a phone call.

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting his siblings and children in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231. On the basis of the evidence provided by the mother of the visa applicant’s children confirming the arrangements made between them for him to visit his children, and that she has no issues with him coming here for that purpose, the Tribunal considers there is no information before it to raise concerns about the visa applicant’s purpose to visit his children and it also finds that his stated purpose is consistent with the rights and best interests of his Australian citizen children to spend time with their father.

13. 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 Tribunal accepts, on the oral evidence of the parties, evidence of his passport and Departmental movement records, that the visa applicant has previously travelled to Australia on sponsored family visit visas in 2007 and 2009 and returned each time within the period of the visa.  There is no other evidence before the Tribunal indicating non compliance with previous visas held and on that basis the Tribunal finds that the applicant has complied with conditions of the last substantive visas held.

14. 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. The Tribunal discussed the visas conditions with the review applicant and visa applicant and they each indicated the visa applicant will comply.

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the basis of the credible and consistent evidence provided by the applicants at the hearing, and supporting documents provided to the Department, the Tribunal makes the following findings. The visa applicant is a 43 year old man who lives in the Abi Samraa area in Northern Lebanon. He lives with his sister and her family in a home that has been the family’s home for many years. He works as a barber with the same employer for 16 years and has a stable and significant income.  He is currently in a relationship with a woman whom he plans to marry.  The visa applicant has four siblings who live in Australia.  He has visited twice before and during these visits he met and married a woman and together they had two children of the relationship. They originally planned to live together in Lebanon but, following a visit with the children in 2010, she changed her mind and returned to Australia.  This is confirmed in departmental movements records considered by the Tribunal. The relationship between them is now over and the visa applicant believes that she may have a new partner.  The visa applicant speaks regularly with his children by phone.  He only intends to visit them and would like to be able to do so on a regular annual basis. 

16. The Tribunal has carefully considered the circumstances of the visa applicant in Lebanon and in Australia as set out above.  It finds that he has significant close family ties in Australia, being 4 siblings and 2 young children, and these ties are greater than the family ties he has in Lebanon, being only one sister and a relatively new relationship. However, despite this, the Tribunal takes into consideration the applicants’ submissions that his past travel history and visa compliance is consistent with his claim that he has no desire to live in Australia and is only interested in visiting his family members for a short period.  It accepts the submissions that he is well aware of the consequences of non compliance with conditions for the prospects of future visits and accepts that his desire to visit regularly is a strong incentive for him to comply with conditions. The Tribunal also takes into consideration his present relationship, which although is only relatively new, is nonetheless ongoing and he has indicated his desire to marry and this is a strong incentive for him to return to Lebanon. 

17. The Tribunal has considered country information contained in the Department of Foreign Affairs and Trade relating to Lebanon[1] regarding the security and political instability and economic circumstances in Tripoli and North Lebanon and whether these are factors that may encourage the visa applicant to breach the conditions of his visa and remain beyond the period of his permitted stay.  However, having discussed this with the visa applicant and taking into consideration his particular circumstances, it accepts that he has stable employment and living arrangements, he has a relatively high income level and substantial savings, the area he lives in is outside the problematic areas of Tripoli identified in the country information and he has not personally experienced any security issues despite periods of sectarian conflict in the general area. In these circumstances, the Tribunal is satisfied, despite the general information it has about country conditions, that the visa applicant will comply with visa conditions. 

    [1] DFAT Country Information Report, 25 February 2015, p4

18. Additionally, the review applicant told the Tribunal she is prepared to provide a financial security if requested.  She is aware of the consequences of forfeiture of the security for non-compliance and the ban on future sponsorships.  The review applicant indicated that she would like to sponsor her sister to visit in future and the visa applicant also indicated his desire to make regular visits in future.  The Tribunal accepts that the consequences of non-compliance for the sponsor and the visa applicant in this case provides strong additional inducements for compliance with visa conditions.    

19. 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

20. 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.

    Meena Sripathy
    Member