1513566 (Migration)

[2016] AATA 3755

1513566 (Migration) [2016] AATA 3755 (15 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad El Saj

VISA APPLICANT:  Mr Abdul Hafiz Abdul Razzak El Saj

CASE NUMBER:  1513566

DIBP REFERENCE(S):  BCC20152044689

MEMBER:Linda Symons

DATE:15April 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 15 April 2016 at 3:04pm

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 28 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 15 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 he 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 18 March 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 (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 children and siblings. 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. The records of the Department indicate that the visa applicant travelled to Australia on 2 September 1996 as the holder of a Visitor visa. This visa was valid until 2 December 1996. On 2 December 1996, he was granted a Bridging visa and departed on 22 January 1997 prior to the expiry of that visa. He returned to Australia on 12 August 2000 as the holder of a Visitor visa and departed on 26 October 2000 prior to the expiry of that visa. He returned to Australia on 3 August 2009 as the holder of a Visitor visa and departed on 31 October 2009 prior to the expiry of that visa. There is no evidence before the Tribunal to indicate that he did not comply with the conditions of those visas.

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 will be responsible for all his expenses in Australia. He stated that his father, the visa applicant, is financially well off and will pay for his airfare. He stated that he would like to pay for the airfare if the visa applicant will let him but does not think he will do so. He stated that the visa applicant has no plans to work, study or undertake any training in Australia. He stated that he will be busy visiting all his relatives in Australia.

14. The visa applicant gave evidence that he has been working full time in a company as a Salesman for over 2 years. He stated that he gets 20 days leave a year. He stated that he asked his boss if he could take leave for 2 to 3 months and his boss agreed. He stated that he got his leave approved before he applied for the visa. He stated that he also has his own business which he has had for about 20 years. He stated that in his spare time he buys used cars and car parts from Germany and sells them in Lebanon. He has provided the Tribunal with evidence of importing cars from Germany to Lebanon. He stated that he owns a house, 4 or 5 cars and has savings of between US$7,000.00 to US$8,000.00. He stated that he has no debts. He stated that money is not a problem for him. He stated that he has visited Australia 3 times previously and did not work on any of those occasions. He stated that he hardly had enough time to visit all his relatives and have a break. 

15. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that the visa applicant would like to visit Australia for 3 months. He stated that it is a long trip from Lebanon and he would like to spend time with each of his relatives in Australia. He stated that he has a large number of relatives in Australia and it would be easier for him to come to Australia to visit them than for all of them to go to Lebanon to visit him.

16. The visa applicant gave evidence that the children from his first marriage were young when he left, he did not see them and does not know them well. He stated that he would like to get to know them better. He stated that his daughter in Australia recently had a baby. When asked what happens to his second wife and 2 children from his second marriage if he is in Australia for 3 months, he stated that he lives in a 3 storey house and his brother and family live upstairs. He stated that his brother will look after them. He stated that his 2 sisters also live close by. He stated that he will leave money will them. He stated that he has cars that he is able to sell.

17. The Tribunal asked the review applicant what incentive the visa applicant has to return to Lebanon at the end of his permitted stay. He responded that it would be impossible for him to leave his wife and children. He stated that he has other family members in Lebanon as well. He stated that he owns a house in Lebanon. He stated that he has visited Australia 3 times previously and did not overstay his visas. When asked whether the current security situation in Lebanon had affected the visa applicant, he responded that the area he lives in is not affected by the problems. He stated that they have never had problems in that area. When asked about the impact of the downturn in the economy in Lebanon, he responded that the visa applicant is employed by a company and has a good income.

18. The Tribunal asked the visa applicant whether the downturn in the economy in Lebanon had affected the company he worked for. He responded that his employer has not been affected at all but some other businesses have been affected. When asked whether the current security situation in Lebanon had affected him or his family, he responded that there is no problem in his area. He stated that it is a good area and is safe. When asked what incentive he has to return to Lebanon at the end of his holiday, he responded that he has his family in Lebanon. He stated that he has 2 very dear children and he cannot believe he has them.

19. The Tribunal noted that he has more children in Australia than in Lebanon. He agreed and stated that they are all grown up. He stated that his children from his second marriage are young (aged 10 years and 8 years) and he is attached to them. The Tribunal noted that he has grandchildren in Australia who are very young. He responded that they have their own parents. He stated that he would like to see them, spend time with them, cuddle them and go back to his own children in Lebanon.

20. The Tribunal has also considered other relevant matters. The visa applicant gave evidence that he has been travelling to Germany regularly since he was young and has been there over 50 times. He stated that he travels to Germany for business and also to visit friends. He stated that he has also travelled to the United Arab Emirates for business and to sightsee. The Tribunal has been provided with documentary evidence of his travel to Germany and to the United Arab Emirates.

21. The review applicant gave evidence that he is prepared to lodge a security bond of up to $15,000.00.

22. The Tribunal has had regard to the written submissions made by the review applicant’s migration agent.

23. Having considered all the evidence, the Tribunal places considerable weight on the visa applicant’s immigration history in Australia and his immigration history in Germany. The Tribunal found the visa applicant to be a convincing witness and accepts that his attachment to his second wife and young children from his second marriage provides him with a stronger incentive to return to Lebanon than to remain in Australia where a number of his adult children from his first marriage live. The Tribunal accepts that his employment in Lebanon and his used car business are also incentives for him to return to Lebanon. The Tribunal accepts that the visa applicant intends only to visit his children from his first marriage and other family members in Australia.

24. The Tribunal accepts that the review applicant is prepared and able to provide a security bond to ensure that the visa applicant complies with the conditions of his Visitor visa and that this would be a strong incentive for the visa applicant to comply with his visa conditions.

25. 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

26. 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