1516263 (Migration)

[2016] AATA 4109

1516263 (Migration) [2016] AATA 4109 (15 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mustapha Manous

VISA APPLICANT:  Mr Maher Manous

CASE NUMBER:  1516263

DIBP REFERENCE(S):  BCC2015/3026005

MEMBER:L. Hawas

DATE:15 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 15 July 2016 at 5:05pm

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 20 November 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 Maher Manous applied for the visa on 16 October 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 the delegate was not satisfied that the visa applicant genuinely intended to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant Mustapha Manous appeared before the Tribunal on 3 June 2016 to give evidence and present arguments. The Tribunal also heard oral evidence by telephone from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in the review by his registered migration agent, who also attended the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

The applicant’s evidence

1. In the present case, the visa applicant seeks the visa for the purpose of visiting his brother (the review applicant) and his brother’s family, as well as to visit local tourist sites and attractions. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

2. In the decision record (provided to the Tribunal in the review), the delegate expressed a concern that although the applicant may not be directly affected by any civil strife in Lebanon, recent reports from the Department of Foreign Affairs and Trade indicated that Lebanon was experiencing civil disruption, including war, lawlessness, and political upheaval. The instability in Lebanon may be a disincentive for the visa applicant not to return to the country. The delegate also noted that the visa applicant did not provide evidence of a travel history or compliance with immigration laws in Australia or another country. By reason of those matters, the delegate was not satisfied that the visa applicant genuinely intended to visit Australia temporarily, and the delegate refused to grant the visa.

3. In his visa application, the visa applicant stated that he:

   (a)was born in El Mina, Tripoli, Lebanon on 7 June 1990 and still lived in El Mina;

   (b)was single and has never married;

   (c)has parents and his sister living in Lebanon;

   (d)was employed as a sales worker at ‘Gallery Decorada’, where he has been employed since 13 October 2010;

   (e)held a current Lebanese passport; and

   (f)proposed to stay in Australia for up to three months, and proposed to visit from 5 December 2015 to 3 January 2016.

4. In his statutory declaration sworn on 16 October 2015, which was provided to the Tribunal in the review, the review applicant stated that his mother visited him in Australia in 2012 and she returned to Lebanon within the time provided in her visa (three months). The review applicant stated that he wanted his brother (the visa applicant) to visit him in Australia for up to four weeks.

Evidence given to the Tribunal at the hearing  

1. At the hearing, the Tribunal explained to the review applicant the requirements of cl. 600.211 and the matters relevant to its assessment. The Tribunal told the review applicant that the primary issue for it to consider in determining the review application was whether the visa applicant genuinely intended to visit Australia temporarily.

2. In summary, the review applicant said the following in evidence at the hearing:

   (a)He first entered Australia on a three-month tourist visa in September 2009 or 2010 during which time he met his now wife. He returned to Lebanon within three months and subsequently became engaged. He returned to Australia in 2011 on an ‘engagement visa’ (a prospective spouse visa) in 2011. He subsequently married and has lived in Australia ever since. He has been a permanent Australian resident for about two years;

   (b)He is self employed as a renderer, which business he has been conducting for nearly two years. His taxable income in the 2015 financial year was about $80,000;

   (c)He has two children (a twin boy and girl). His children will be three years old in September 2016. His wife looks after the children full time. He lives in a rental home in Melbourne’s northern suburbs with his family;

   (d)He has cash savings of about $40,000 AUD and no other assets;

   (e)He has a maternal grandmother, a maternal uncle and aunt, and two maternal cousins in Australia, who all live in Melbourne;

   (f)He has not been to Lebanon since he was married. He is not able to travel to Lebanon to visit his family there now because he cannot leave his business. Also, his father in law is ill and requires constant care. His wife looks after her father and cannot leave him. For those reasons, he would like his Lebanese family to visit him in Australia (including his brother);

   (g)The visa applicant was 25 years old (at the time of the hearing) and lives with his parents in El Mina, Tripoli, in northern Lebanon. His father is about 54 years old and his mother is about 49 years old. His father still works as a carpenter;

   (h)The visa applicant is an employed carpenter who works for Galerie Decorada. That business operates from the town of Koura, which is about 15 to 20 minutes’ drive from El Mina. The visa applicant has worked for Galerie Decorada for about six years. He earns $900 USD per month (or about $1,500 AUD). He has cash savings of about $20,000 USD but no other assets;

   (i)The visa applicant proposed to visit Australia for between a month and six weeks;

   (j)The visa applicant has not taken any leave from work for five years, and he has sufficient accumulated leave to cover his proposed stay in Australia. The visa applicant’s employer had approved the visa applicant’s proposed visit in the December and January just past and would approve leave of a month to six weeks if the visa applicant was granted a visa now;           

   (k)The visa applicant would pay for his airline ticket to travel to Australia and the review applicant would provide the necessary support in Australia such as accommodation in the review applicant’s home;

   (l)The review applicant proposed to visit Sydney, Queensland, and sites around Melbourne with the visa applicant;

   (m)The visa applicant will return to Lebanon because his life was in that country. He became engaged about two months before the hearing and will return to his fiancée, his parents, and his employment. The visa applicant is yet to set a wedding date because he proposes first to renovate the family home (where he will live with his parents once married), and buy some furniture;

   (n)During the hearing, the Tribunal raised with the review applicant (and the visa applicant) the information about Lebanon published by the Department of Foreign Affairs and Trade on the Smart Traveller Website.[1] The travel advisory stated, amongst other things, that travellers should reconsider the need to travel to Lebanon due to the very high risk. The advisory noted the generally dangerous security situation in Tripoli and northern Lebanon, and advised Australians not to travel there because the Lebanese authorities had assessed that a number of extremists had taken refuge in the region. The review applicant stated that El Mina was a tourist area and was not affected by the reported security dangers; and

   (o)The Tribunal also raised the information in the modified non-return June 2013 quarterly report published by the Department of Immigration and Border Protection[2], which provided that visitors to Australia from Lebanon were more likely to overstay their visas than visitors from other countries. The review applicant said that he will want the visa applicant to return to Lebanon within the time allowed by his visa. He wants his mother and father to visit him in Australia in the future and will not want to jeopardise their chances of obtaining a visa by his brother overstaying and giving the review applicant an adverse immigration history.   

   [1] The June 2013 quarterly report is the latest published report.

3. The visa applicant said in evidence that he wanted to travel to Australia to visit his brother and his children. The visa applicant has not seen his brother for five years and has never seen his brother’s children. He also wants to visit some local tourist attractions, about which his brother had told him.

4. The visa applicant said in evidence that he proposed to travel to Australia and stay for three months. That evidence was inconsistent with the review applicant’s evidence of a month to six week stay. The visa applicant also gave evidence about his leave entitlements that was inconsistent with the evidence of the review applicant. The visa applicant said that at the end of this calendar year, he will have a month worth of paid leave. He said that for his proposed three month visit to Australia, about one month will be paid and the remaining two months will be unpaid.

5. The visa applicant said in evidence that he only had $2,000 USD in cash savings as he had spent most of his savings on his recent engagement. He does not have any other assets. He earns $900 USD per month from his job as a carpenter with Gallerie Decorada. He said that he proposed to pay for his airline ticket to Australia with his $2,000 USD in savings, and his brother (the review applicant) would cover his spending needs in Australia for the duration of his stay.

6. The visa applicant said that he has never travelled outside of Lebanon before. The Tribunal asked the visa applicant why he would return to Lebanon if granted a visitor visa to Australia. He said that Lebanon is his home where his parents and his fiancée live and he will want to return to them. The visa applicant said that he was yet to set a wedding date.

Assessment of evidence and findings

1. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for the stated purpose, the Tribunal must consider whether he 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 travelled to Australia before so this provision is not relevant.

2. 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; and

   ·8531 – must not remain in Australia after end of permitted stay.

3. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

4. The Tribunal has considered the information the review applicant gave to the Tribunal in the review and the oral evidence the review applicant and the visa applicant gave at the hearing. The Tribunal has considered the oral submissions that the review applicant’s representative made at the hearing, and the written submissions (and the attachments) dated 2 June 2016 that the representative sent to the Tribunal. The Tribunal has examined afresh the particular circumstances of the visa applicant. The Tribunal has also considered the country information on Lebanon discussed with the review applicant at the hearing.

5. After weighing all of those matters, on balance the Tribunal is not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purposes for which the visa is to be granted.

6. The visa applicant is a young tradesman who was 25 years old at the time of the hearing. He has since turned 26. He has meagre cash savings, which will be largely exhausted once he purchases his airline ticket for travel to Australia. He will travel to Australia with little cash (of his own), and will rely on the review applicant to support his stay. He does not own any assets in Lebanon. He proposes to stay in Australia for up to three months, two of which will be on unpaid leave. If the visa applicant returns to Lebanon, on his evidence, he will return almost penniless.

7. Although the visa applicant might earn a relatively good income from long standing employment in Lebanon[3], his annual income of $10,800 USD ($14,119.91 AUD)[4] per year is significantly less than his brother’s income in Australia. On the visa applicant’s income in Lebanon, it will take him quite some time to accumulate substantial savings. However, if he were to stay in Australia and work as a carpenter (or in some other trade or vocation), he would stand to earn significantly more than he would in Lebanon (as his brother does working as a renderer), and he will be able to accumulate savings and wealth more readily than in Lebanon in order to establish his future. The Tribunal finds that those matters constitute a powerful financial incentive for the visa applicant to remain in Australia.

   [3]The review applicant’s representative submitted that the visa applicant’s income in Lebanon was relatively high for that country. 

   [4] XE Currency Converter, 15 July 2016; >

   The Tribunal accepts that the visa applicant’s family ties in Lebanon provide some incentive for him to return. The visa applicant’s parents remain in Lebanon and he might not want to leave them for an extended time. The visa applicant was also recently engaged and he might not want to leave his fiancée for an extended time either. The Tribunal also notes that the review applicant’s mother returned to Lebanon within the time provided in her visa when she last visited Australia.

8. However, the Tribunal considers that the strong financial incentive for the visa applicant to remain in Australia outweighs the family incentive for him to return. The visa applicant’s family in Lebanon are not dependant on him for support. His parents are still relatively young, his father still works, his parents live in their own home, and he is not yet married to a dependant wife. Moreover, the visa applicant has family ties in Australia, which provide some family incentive for him to stay. The visa applicant’s brother (and family), a maternal grandmother, a maternal uncle and aunt, and two maternal cousins live in Australia.

9. The country information on Lebanon raised with the review applicant at the hearing provides that Lebanon is subject to some militant activity in areas and the country generally presents a high security risk to potential visitors, with the security risk in northern Lebanon and the Tripoli area being particularly acute.  The Tribunal considers that while El Mina (and the visa applicant) might not be directly affected by any militant activity or instability, the security risk in Lebanon and the Tripoli area generally constitutes an additional incentive for the visa applicant to stay in Australia. The Tribunal also took into account the contents of the department’s modified non-return June 2013 quarterly report, which provides that visitors from Lebanon present a higher risk of remaining in Australia than visitors from most other countries. In considering the report’s contents, the Tribunal acknowledges that, while relevant, the report is now about three years old. Accordingly, the Tribunal has given the information in the report limited weight.

10. After considering all the evidence before it including the visa applicant’s personal circumstances and the country information on Lebanon, on balance 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. The Tribunal finds that the requirements of cl.600.211 have not been met.

    DECISION

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

    L. Hawas
    Member