1601247 (Migration)

[2016] AATA 4478

1601247 (Migration) [2016] AATA 4478 (3 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mahmoud Assaad

VISA APPLICANT:  Ms Najah Assaad

CASE NUMBER:  1601247

DIBP REFERENCE(S):  BCC2015/3884635

MEMBER:Mary Urquhart

DATE:3 October 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 03 October 2016 at 3:57pm

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 15 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 15 December 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 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 3 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mrs Najaha Assaad. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic 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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

9. In the present case, the visa applicant gave evidence that she seeks the visa for the purposes of visiting  two of her three sons in Australia and her daughter , all adult children and her grandchildren. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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 (cl.600.211(a)).

11. The visa applicant has never previously visited Australia and therefore subclause 600.211(a) does not apply to her.

12. The Tribunal notes the review applicant visited the visa applicant in May 2016 in Lebanon.

13. 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.

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

15. The Tribunal has considered the oral evidence given by the visa applicant and the review applicant, the documents provided with the visa application, and the delegate’s decision record.

16. In her application at question 34 the visa applicant lists home duties as her employment status. She provides no other detail. The Tribunal notes the delegate records that because her employment status was home duties that employment as a factor for consideration as an incentive to return could not be considered.

17. At the hearing the review applicant and visa applicant both gave sworn evidence that the visa applicant together with her husband owns and works in the family supermarket. The review applicant also said he thought the supermarket was owned by his mother; his evidence being  that it “is in her name”. The review applicant also gave evidence that his mother “helps out” in the family business, being the supermarket. The visa applicant said she works in the supermarket “in the afternoons” and does home duties the rest of the time.

18. The review applicant, when asked by the Tribunal who worked in the supermarket responded that normally four people worked there; apart from his father, he said these were his two sisters and his brother in law (married to his sister). He did not include his mother. The supermarket’s income was said to be $2000 US a month.  There was no independent evidence of this.

19. Whilst the Tribunal accepts there is a family supermarket it is not satisfied that it is owned by the visa applicant in her own right or that she is integral to its operation. However, if her evidence is relied upon the Tribunal would be  accepting that at the age of 51 the applicant continues to be in the workforce in Lebanon meaning that she still has capacity to undertake a working life and if in Australia would not be prevented from working because of her age. However, the Tribunal takes into account the evidence that the visa applicant has an  extensive family in Australia and that she would be well supported by them which may lessen any incentives for her to work in Australia.

20. Overall the Tribunal  does not consider that  the visa applicant’s association with the family business provides a strong  incentive for her to return to Lebanon at the end of any visit.

21. The review applicant and the visa  the applicant argued at hearing that the Tribunal should be satisfied that the visa applicant intends to comply with the conditions to which the visa would be subject given her involvement in the family supermarket as well as the fact that she has a husband and young son at home as well as two daughters and two grandchildren living with her; further one daughter is engaged and completing university studies and her married daughter is three months pregnant with her third child. It was argued these are all strong reasons for the visa applicant to return home.

22. It was also argued that the past conduct of the visa applicant’s son Ali, who came to Australia five years ago, overstayed and made application to change his immigration status was a very different situation. It was submitted that Ali was only 20 years old with few ties to Lebanon. The review applicant said that his brother’s overstay had cost him the $15,000 bond.

23. The review applicant and visa applicant gave consistent evidence that they have had no contact with Ali since that time. Neither could say what the basis of his seeking to change his immigration status was. The Tribunal  found the evidence  of fall out, lack of communication and lack of knowledge of Ali somewhat implausible even given the circumstances of his breaching the visa conditions, overstaying and loss of bond.

24. On the plus side, the review applicant argued that he had previously sponsored his father to come to Australia twice ( 2007 and 2009) without any visa breach.  He argued his mother would abide by visa conditions and that she would not remain in Australia after the end of her permitted stay.

25. The Tribunal accepts the visa applicant is a married 51 year old citizen of Lebanon. She is the mother of seven adult children, four boys and three girls. Three of her sons and one of her daughters live in Australia. This represents the balance of her children.  

26. The evidence is that in Lebanon the visa applicant, her husband, young son aged 10 and two daughters and the husband and 2 children of her married daughter all reside in the same family house. Her unmarried daughter is said to be engaged.

27. The Tribunal has given careful consideration to the evidence of family ties- in particular to the visa applicant’s young son and husband in Lebanon. However the Tribunal also appreciates that were she to seek to change her residency status in Australia there would be no reason she could not at least initially bring out her spouse and young son.  Furthermore, of the two remaining adult daughters of the visa applicant, one is married and one engaged. The Tribunal does not consider that these immediate family members in Lebanon necessarily, therefore, represent a disincentive for her to attempt to remain in Australia. 

28. In terms of whether the applicant intends to comply with the conditions to which the subclass 600 visa would be subject (cl.600.211(b)) above, the Tribunal has given consideration to the entirety of the evidence before it, including the circumstances of the applicant and the country information on Lebanon, and in particular north Lebanon, where the visa applicant resides in Akkar.

29. The Tribunal also has serious concerns about the general security situation in Lebanon. The advice from the Department of Foreign Affairs and Trade (DFAT) warns against travel to northern Lebanon and warns that the general security and political situation in Lebanon is unpredictable and could deteriorate without warning.[1] Additionally, with ongoing war in neighbouring Syria, there remains considerable risk that the current unrest in northern Lebanon will escalate.  The Tribunal has had regard to the evidence and submissions that the visa applicant is not personally affected by the unrest in his area, however, the information before the Tribunal indicates that the situation in Lebanon is volatile and could deteriorate, and his area would be particularly vulnerable should conflict break out.

    [1] accessed on 24 August 2015.

30. The circumstances in Lebanon, combined with the high non-return rates, may, in the Tribunal’s view, encourage the visa applicant to remain in Australia beyond the proposed period of his permitted stay.

31. The Tribunal  raised the above security issues with both the review applicant and the visa applicant. The Tribunal formed the view that the responses of both the visa applicant and review applicant to the current situation in the north of Lebanon were less than frank. However the Tribunal has never the less accepts they may not have been personally affected by the militant activity or instability and may not be familiar with non-return rate information. However, having regard to country information particularly concerning north Lebanon including the unpredictability of the situation and the possibility of further deterioration the Tribunal has significant concerns that the instability in Lebanon may act as a strong disincentive for the visa applicant to return home at the end of a visit.

32. For the above reasons, having considered this visa applicant’s individual circumstances at this point in time, and having weighed up the circumstances which may encourage him to remain in Australia against those factors which indicate he would return Lebanon, the Tribunal is not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

33. Given the above, the Tribunal is not satisfied that the requirements of cl.600.211 are met.

    CONCLUSION

34. For the above reasons 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, and finds that the requirements of cl.600.211 are not met.

    DECISION

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

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

    Mary Urquhart
    Member