1600569 (Migration)

[2016] AATA 4431

1600569 (Migration) [2016] AATA 4431 (20 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mirvat Abou Layla

VISA APPLICANT:  Ms Rana Abou Layla

CASE NUMBER:  1600569

DIBP REFERENCE(S):  BCC2015/3491305

MEMBER:Tania Flood

DATE:20 September 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 20 September 2016 at 2:50pm

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 11 January 2016 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 10 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 her family ties to Lebanon are limited to non-dependent relatives.  This and her employment situation may not provide sufficient incentive for her to return to Lebanon in light on the security situation in Lebanon. The Delegate was not satisfied the visa applicant intends a genuine temporary stay in Australia.

5. The review applicant appeared before the Tribunal on 16 September 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

7. The visa applicant was born on 5 May 1983 in El Sfire, Tripoli, Lebanon.    She resides in Abou Samrah (El Shalfi), Tripoli.  Her parents, two sisters and brother reside in Tripoli. She has one sister living in Australia. She wants to come to Australia to visit her sister and her new baby and to take a break from her work in Lebanon.  She is employed by Perladent Digital Dental Laboratory in Lebanon.

8. The review applicant is the visa applicant’s sister.  She was born on 1 January 1985 in El Sfire, Lebanon.  She is a housewife and has one son.  She has previously sponsored her mother and her sister (the visa applicant) to visit Australia.

   TRIBUNAL HEARING

9. The review applicant appeared before the Tribunal on 15 September 2016.  The Tribunal also received oral evidence from the visa applicant.  They provided consistent evidence about the visa applicant’s circumstances in Lebanon and the stated purpose of the visit as can be seen below.

10. The following is a summary of the information provided by the review applicant at the hearing:

11. She was born in El Sfire, Lebanon which is a village to the north of Tripoli.  She obtained permanent residence in Australia by marriage to an Australian citizen.  She has applied for Citizenship and is awaiting the outcome of the test.  She has two children aged one year and six months.  Her husband has his own cement rendering business and their income is approximately $80,000 per annum.  They have a mortgage on their four bedroom home and a business account with a balance of approximately $200,000.

12. Her parents, three sisters and two brothers are living in Abou Samrah in Tripoli city. 

13. Her sister, the visa applicant, is Sunni Muslim, not married and has no children.  She was formerly engaged but the relationship ended.

14. Her sister, the visa applicant, works in a dental laboratory and has done so for many years.  Her place of work is in Koura which is outside of Tripoli.  She travels to work in her own car.

15. Her sister, the visa applicant, has her own savings and is able to pay the costs of her visit herself.

16. She last saw her sister three years ago in Lebanon.  During that visit she spent some time with her parents in Abou Samrah and some with her husband’s family in Akar village in the north of Lebanon.  They experienced no security problems during the visit and were able to move around freely.   Her sister has not reported experiencing any problems due to the security situation or due to her religion.

17. Her sister, the visa applicant, has been saving her annual leave to come to Australia.  She would like to stay up to three months if she can.  They will stay in Sydney for the entire time and visit the sites and enjoy time together.  Her sister would also like to meet her youngest child.

18. Her sister, the visa applicant, has travelled to Turkey and Dubai as well as Australia.  She has always complied with her visa conditions.  She also sponsored her mother to visit Australia and she also complied with her visa conditions.

19. Her sister, the visa applicant, will not want to remain in Australia.  She loves her job and her career and the majority of her family are in Lebanon.  She has visited Australia before and did not attempt to remain in the country beyond the validity of her visa. 

20. She and her husband are willing to pay a security bond if required, within the limits of their savings.

21. The following is a summary of the information provided by the visa applicant at the hearing:

22. She was born in El Sfire, a village outside of Tripoli city and is Sunni Muslim.  She lives in Abou Samrah with her parents and brother.  Her two sisters in Lebanon are married and live in a different area.

23. She is not married and has no children although she was once engaged.

24. She works in a dental laboratory in Koura which is about a half hour drive from her home.  She sometimes travels to work in company transport or else drives herself.  She has worked at the laboratory for eight years.

25. She visited Dubai once for work for five days and travelled to Turkey about two years ago for five days of tourism.    She was once invited to Germany for work purposes but her application for a visa was refused because she did not have sufficient savings.

26. She has visited her sister in Australia once before and stayed approximately twenty-four days.  She was impressed by her first visit and would like to come again to visit her sister, meet her sister’s youngest child and to have a break from work.  She would be happy to come for one month.  She has pre-approval to be away from work for one month.

27. She will stay with her sister during the visit but has sufficient funds in the bank to pay her own travel and expenses.  She has savings of approximately $17,000.

28. She is not impacted by the security situation in Bab al-Tanneneh and Jabal Mohsen.   Abou Samrah is in a different part of the city, about an hour’s drive from  Bab al-Tanneneh and Jabal Mohsen where unrest sometimes erupts.  When problems are reported in that part of the city they do not travel near there.

29. She has no problems in Lebanon due to her religion.

30. She does not want to remain in Australia long term.  She loves her career as is evident from her long length of service.  She is also the only daughter remaining at home to support her mother. 

31. She is aware that if her sister pays a security bond and she remains in Australia her sister will lose that money.  She will not do that.

    CONSIDERATION OF CLAIMS AND EVIDENCE

32. 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.

33. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

34. 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)).

35. The visa applicant was granted a sponsored family visitor visa on 7 September 2012 and entered Australia on 23 September 2012.  She departed Australia on 12 October 2012 within the validity of her visa.

36. The review applicant entered Australia on 6 June 2009 on a prospective marriage visa and on 10 October 2009 she was granted a partner visa.  She is permitted to remain in Australia indefinitely after being granted a subclass BS801 visa on 25 October 2011. 

37. 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.

38. The visa applicant is a thirty-four year old single woman.  She has maintained stable employment in a dental laboratory in Lebanon for approximately eight years.  On 18 September 2016 she provided the Tribunal with a copy of a bank statement showing a balance of USD$16,773.  The information before the Tribunal indicates the visa applicant is able to support herself during a visit to Australia.  There is no indication before the Tribunal that the visa applicant wishes or intends or needs to work in Australia.  The Tribunal is satisfied the visa applicant will comply with condition 8101 if she visits Australia.

39. There is also no evidence or indication that the visa applicant intends or wishes to study in Australia.  The Tribunal is satisfied the visa applicant will comply with condition 8201 if she visits Australia.

40. The Tribunal accepts the visa applicant’s parents, two sisters and brother all remain in Lebanon.  While the visa applicant is single and does not have any dependents or property of her own, the Tribunal nevertheless considers the visa applicant’s family ties in Lebanon are strong.  The Tribunal considers this creates a stronger incentive for her to return to Lebanon than staying in Australia.  Indeed, the Tribunal finds it significant the visa applicant travelled to Australia once before and returned to Lebanon within the validity of her visa.

41. The Tribunal acknowledges the Delegate’s concern about the security situation in Lebanon and has had regard to DFAT’s country information report on Lebanon dated 18 December 2015 which states that although the situation is broadly stable it could deteriorate with little notice.  With respect to the situation in Tripoli, sectarian violence is reported although DFAT states it is enjoying increased stability due to a successful security plan implemented by the LAF and backed by the major political factions.  Overall DFAT assesses that Sunnis living in Bab al-Tabbeneh face a moderate risk of violence given the long history of sectarian violence in the area.  Those in other areas of Tripoli face a low risk of violence given violence is more easily avoided, although sectarian violence has spilled into other areas of Tripoli on occasion.  At times of increased sectarian violence, Sunnis who are actively involved in fighting face a high risk of violence.

42. The visa and review applicant gave consistent evidence regarding the visa applicant’s address in Tripoli and its proximity to Bab al-Tanneneh where most sectarian violence is reported.  Further, they gave consistent evidence about the location of the visa applicant’s place of work and its proximity to Bab al-Tanneneh.  The visa applicant indicated at hearing that she is not involved in any political activities and has no reason to travel to Bab-al-Tanneneh or Jabal Mohsen and actively avoids those areas when unrest occurs.  The Tribunal places weight on the fact the security situation in Tripoli has not interfered with the visa applicant’s ability to maintain long term employment and to DFAT’s assessment of the low risk of violence to those living in other areas in Tripoli.  The Tribunal considers this supports the visa’s applicant’s assertion that she does not need to, or wish to, migrate from Lebanon.

43. Despite the visa application form indicating the visa applicant would like to remain in Australia for up to three months the Tribunal is satisfied that she is proposing to stay for one month as that is the time she has agreed to be away from her work in Lebanon.  The Tribunal considers this adds weight to her stated intention to not want to remain in Australia for a long period of time.

44. The Tribunal has also had regard to the review applicant’s husband’s willingness to lodge a security sum to ensure compliance by the visa applicant of any visitor visa conditions.  Based on his oral testimony at hearing the Tribunal is satisfied he has the financial means to do so.

45. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

46. In sum, the evidence before the Tribunal does not indicate that the visa applicant wants to visit Australia for any purpose other than a genuine temporary stay to see her sister and her children, as well as see the sights in Sydney.

47. 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

48. 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.

    Tania Flood
    Member