1601266 (Migration)

[2016] AATA 4458

1601266 (Migration) [2016] AATA 4458 (27 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Samara Abboud Khoder

VISA APPLICANT:  Ms Kawthar Khoder

CASE NUMBER:  1601266

DIBP REFERENCE(S):  BCC2015/3090296

MEMBER:Lisa Lo Piccolo

DATE:27 September 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 27 September 2016 at 5:52pm

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 13 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 21 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 appeared before the Tribunal on 19 September 2016 to give evidence and present arguments. 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 her 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

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 5 May 1980 and still lives there;

   (b)is divorced with two young children aged 3 and 8 years old;

   (c)has parents and other siblings living in Lebanon (1 brother and 2 sisters) and a sister (the review applicant) living in Australia;

   (d)is a self-employed dressmaker and has been for 5 years;

   (e)holds a current Lebanese passport; and

   (f)proposed to stay in Australia for up to three months from 15 November 2015 to 15 February 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)She came to Australia in 1996 on a spouse visa.  She has been a permanent Australian resident for many years;

   (b)She is not working and is in receipt of Government benefits.  She gave evidence which is supported by her application and statutory declaration, that she is will provide meals and accommodation to her sister during her proposed visit to Australia of 3 months;

   (c)She has four children. Her eldest daughter Fatima is employed in childcare.  She made a statutory declaration that she is prepared to meet any expenses incurred by her aunt during any visit;

   (d)On 20 July 2015, the review had cash savings of about $19,000 AUD.  This was predominantly as a result of a large deposit of in excess of $18,000 deposited by Rafic Ventures Pty Ltd on 20 July 2015.  There is no evidence that the review applicant has any cash savings at hand at the time of the hearing;

   (e)She has a maternal uncle and aunt in Australia but no other siblings live in Australia; 

   (f)The visa applicant was 35 years old (at the time of the hearing) and lives in Akkar in Lebanon. She 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 proposed to visit Australia for between a month and six weeks;

   (h)The visa applicant would pay for her airline ticket to travel to Australia and the review applicant and her daughter (Fatima) would provide the necessary support in Australia such as accommodation in the review applicant’s home, food and other expenses.  The review applicant stated that the visa applicant has cash savings.  She said she did not know exactly how much or whether the visa applicant was referring to Lebanese pound or Australian dollars, but estimated she had cash savings of somewhere between 6,000 to 10,000;

   (i)The review applicant stated that the visa applicant will return to Lebanon because her life was in that country.  She said that she will visit Australia with her son (aged 3 years) who is an Australian citizen and her daughter (aged 8 years old) will remain in Australia.  She said she would not leave her daughter in Lebanon and not return to her.   She said she is very attached to her.  She also said that she has a successful business to return to and she will lose her customers if she does not return.

3. The visa applicant did not give evidence before the Tribunal.  After the hearing, the review applicant submitted two statutory declarations made by her and her daughter (referred to above).  Her daughter’s statutory declaration annexed copies of her recent pay slips.  A Transaction Listing from the Bank of Melbourne in the name of Fatima Khoder (the daughter) dated 20 September 2016 was also submitted.  That document records that cash deposit of $5,000 was deposited into Fatima Khoder’s account.  No other statements were attached.  Photographs of the visa applicant in front of her sewing machine were also submitted; 

4. The review applicant said that the visa applicant has never travelled outside of Lebanon before. The Tribunal asked the review applicant why the visa applicant would return to Lebanon if granted a visitor visa to Australia.  She said that Lebanon is her home where her work is and her daughter.  She said that although she would be travelling with her son, she was leaving her daughter behind and this was the reason why she would return. The Tribunal queried why the visa application indicated that the visa applicant’s two children were not travelling with her.  The review applicant said she did not know but stated that one of the reasons for the visit was for the son to visit his father who resides in Australia.

5. 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 said that she was in Lebanon 4 years ago and where her family lives is “a bit close” to the issues “but not really close.  She said they can hear everything happening.  She said that her sister proposes only to come for three months and will go back after that.  She said that she cannot look after her for more than three months anyway so she has to go back.

   [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 the visa applicant will want the visa applicant to return to Lebanon within the time allowed by his visa.  The review applicant stated that the visa applicant “is not going to stay [in Australia] her daughter has school, she has a house and everything in Lebanon.

   [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 she 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 all of the evidence the visa applicant submitted to the Department as well as the oral evidence of the visa applicant at the hearing, and the additional documents she submitted 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 divorced woman working as a dressmaker. There is no documentary evidence before the Tribunal to support the review applicant’s claims that the visa applicant has a dress making business and cash savings.  There is no evidence regarding the amount of her weekly or monthly income only the review applicant’s evidence that “she has an income she has money”.  If she were to stay in Australia and work as a dressmaker (or in some other similar vocation), she would stand to earn significantly more than he would in Lebanon, and she will be able to accumulate savings and wealth more readily than in Lebanon in order to establish her future.  The Tribunal finds that those matters constitute a powerful financial incentive for the visa applicant to remain in Australia.

7. The Tribunal accepts that the visa applicant’s family ties in Lebanon provide some incentive for her to return.  The visa applicant’s parents and siblings remain in Lebanon as does her eight year old daughter and she might not want to leave them for an extended time.  However, the Tribunal is concerned as to the visa applicant’s decision to leave her eight year old daughter in Lebanon for three months and to take her son who is an Australian citizen.  The Tribunal is also concerned that the visa application specifically indicates that the visa applicant would not be travelling with her son. 

8. The Tribunal considers that the strong financial incentive for the visa applicant to remain in Australia outweighs the family incentive for her to return. The visa applicant’s parents are prepared to look after the visa applicant’s daughter for an extended period.  Moreover, the visa applicant has an ex-husband and sister in Australia, which provide some family incentive for her to stay. 

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 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.

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

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

Lisa Lo Piccolo
Member