1600254 (Migration)

[2016] AATA 4297

1600254 (Migration) [2016] AATA 4297 (30 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdul Wahab Ali

VISA APPLICANT:  Mr Abed AlRahman Ali

CASE NUMBER:  1600254

DIBP REFERENCE(S): BCC2015/3332251 BCC2016/346070

MEMBER:Lisa Lo Piccolo

DATE:30 August 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 30 August 2016 at 9:14am

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 9 December 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 12 November 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 appeared before the Tribunal on 29 August 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, Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review.

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 Application

1. In the present case, the visa applicant seeks the visa for the purpose of visiting his brother (the review applicant) and his siblings, 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 his visa application, the visa applicant stated that he:

   (a)was born in Lebanon in Danbo (Ein Aldahab) in Akkar on 23 October 1994 and still lived there;

   (b)was single and has never married although he is in a relationship with a girl he proposes to marry;

   (c)has parents and two sisters living in Lebanon and five siblings living in Australia;

   (d)was employed as a waiter at ‘Abou Walid Restaurant’, where he has been employed for four years and three months;

   (e)held a current Lebanese passport; and

   (f)proposed to stay in Australia for up to three months from March 2016 to June 2016.

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 came to Australia in 1997 on a spouse visa.  He has been a permanent Australian resident for almost 17 years;

   (b)He is self employed as a courier, which business he has been conducting for nearly five years. His earns between $500 and $1000 per week.  His taxable income in the 2015 financial year was about $30,000;

   (c)He has six children. He is divorced from his first wife with whom he has three children aged 13, 18 and 19 years.   He is remarried and has three more children aged 5 years, 4 years and 2 months.  His wife looks after the children full time.  He lives in a home in Melbourne’s northern suburbs with his family;

   (d)He has cash savings of about $9,000-10,000 AUD.  He owns the home where he resides in Melbourne’s northern suburbs;

   (e)He has three sisters and a brother in Australia, who all live in Melbourne.  He has returned Lebanon since he was married to see his parents and his two sisters and his brother, the visa applicant; 

   (f)the visa applicant was 21 years old (at the time of the hearing) and lives in Akkar in Lebanon. He lives with his parents who are aged 62 and mother is 57.  His two sisters in Lebanon are 17 and 19 years old respectively.  His father works in a restaurant in Tripoli and the mother stays home to care for his sisters;

   (g)The visa applicant applied for a three month visa but it is proposed he visit Australia for between a month and six weeks;

   (h)The visa applicant’s employer had approved the visa applicant’s proposed visit and would approve leave of up to three months if the visa applicant was granted a visa now;          

   (i)The visa applicant would pay for his airline ticket to travel to Australia and the review applicant and his other siblings would provide the necessary support in Australia such as accommodation in the review applicant’s home and other siblings.  He said that he has five siblings here as well as cousins who can support him;

   (j)The visa applicant will return to Lebanon because his life was in that country.  He wants the visa applicant to visit because he also wants his other family members to visit and he wants that pathway clear for his other family members.  He said that he is holding himself responsible for this and he wants his brother to come here and comply with the law.

3. The visa applicant said he is employed as a waiter and works for Abou Walid Restaurant. That business operates from the town of Beirut, which is about one hour drive from Ain Al dahab. He said he has worked there for about four years and three months.  He earns $750 USD per month (or about $990 AUD).  He has cash savings of about 74,000,000 Lebanese pounds in cash savings (or about $48,000 AUD).  He also has land in his village which is not leased but which is used for growing olives.  He has no other assets; 

4. The visa applicant said that his siblings in Australia can support him during his stay but he also has access to his own money whilst he is here.  He said he can go from place to place and stay with each of his siblings and the review applicant and his other siblings would cover his spending needs in Australia for the duration of his stay.

5. 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 he has a secure job which he is very committed to and a girlfriend he cares very deeply for.   He said he is planning to marry and has already spoken to her parents.  He said he was waiting for her to complete her university studies.  The visa applicant said that he was yet to set a wedding date.

6. 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 the village that they live in Danbo (Ain Al dahab) in is not affected by the reported security dangers, nor is the place where he works.  He said these issues do not affect him at all: “things are very peaceful”.

   [1] >

   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 and other siblings 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.  Plus, he said if the intention was for him to stay permanently, he would have looked into whether he meets the criteria for the grant of other more permanent visas.   The visa applicant said he only wants to come visit his family and have a holiday and will return.

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

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 examined afresh the particular circumstances of the visa applicant. The Tribunal has also considered the country information on Lebanon discussed with the applicants 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 man working in hospitality who was 21 years old at the time of the hearing. He has significant cash savings for a boy his age and told the Tribunal is keenly trying to save more.  Although the visa applicant has long standing employment in Lebanon, his annual income of $9,000 USD ($11,885.85.91 AUD)[3] per year is significantly less than his brother’s income in Australia.   And, if he were to stay in Australia and work as a waiter (or in some other similar vocation), he would stand to earn significantly more than he would in Lebanon, 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] XE Currency Converter, 30 August 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 has a serious girlfriend and he might not want to leave his girlfriend for an extended time either.  

7. 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 as a waiter, 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 has five siblings and cousins who live in Australia.

8. 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 Ain Al dahab (and the visa applicant) might not be directly affected by any militant activity or instability, the security risk in Lebanon and Northern Lebanon 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.

9. 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

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

Lisa Lo Piccolo
Member