1602843 (Migration)

[2016] AATA 4618

1602843 (Migration) [2016] AATA 4618 (30 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rabih Rahme

VISA APPLICANT:  Mr Rony Zina Rahme

CASE NUMBER:  1602843

DIBP REFERENCE(S):  BCC2016/401889

MEMBER:Christine Cody

DATE:30 October 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 30 October 2016 at 9:59am

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 23 February 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 22 December 2015 (lodging the relevant forms as well as an Additional Personal Particulars Form). 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. The primary purpose of the application was for the visa applicant to visit his brother (the review applicant), his family (and for tourism) in Australia.

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. A number of supporting documents were supplied to the Department, including Lebanese Family registration certificate showing the relationship between the applicants and that they are Maronite Christians, copies of relevant passports (including a copy of the review applicant’s identity page of his Australian passport), financial information about the review applicant and his business in Australia (a building business, including bank information showing significant funds), a bank credit advice dated 5 November 2015 showing that $15,030 was deposited into the visa applicant’s Lebanese bank account, and documents confirming that the visa applicant owns four buses.  

5. By way of background generally, the visa applicant is a 36 year old Lebanese man from Becharre, Northern Governate, Lebanon. The visa applicant is self-employed in his business provides bus services. He has been the owner of this business for 10 years. He has undertaken his military service in Lebanon.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because it appeared that the visa applicant’s reason for travel (to visit his brother, his family and for tourism) was inconsistent with the length of stay sought and that the applicant is leaving his own business to come to Australia. The delegate was thus concerned that the applicant may intend to travel to Australia for reasons other than a genuine visit. In this regard, it was noted that:

   ·     The applicant seeks to visit his brother in Australia for six weeks, which the delegate considered is inconsistent with a person of working age who claims to be self-employed. He will not receive any remuneration while he is in Australia and the delegate is not satisfied that he intends a genuine visit to Australia.

   ·     The delegate had insufficient information to determine whether or not the funds in the visa applicant’s bank account may have been deposited for the sole purpose of the visa application.

   ·     The visa applicant has not provided any evidence of previous travel or demonstrated previous compliance with immigration law in Australia or other countries.

   ·     The delegate was concerned that the current instability in North Lebanon is a disincentive for him to return to Lebanon within the validity of his visa.

7. The delegate accepted that the purpose of his intended stay is to visit family, but this does not in itself demonstrate that the applicant only intends a genuine temporary stay.

8. The review applicant lodged an application for review together with a copy of the delegate’s decision record. The Tribunal wrote to the review applicant, informing him that on the evidence before it, it was unable to make a favourable decision.

9. The review applicant appeared at a hearing before the Tribunal on 13 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Lebanon. The review applicant produced further documents, including in relation to his work and the visa applicant’s bus ownership[1].

   [1] These were untranslated however they were similar to other documents produced earlier to the Department. The review applicant said that these were proof of ownership of the buses by the visa applicant.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. . The Tribunal is prepared to accept the familial relationship, on the basis of the oral evidence, and the documents provided. The Tribunal accepts that one of the purposes of the visit is to visit his brother and his family. The visit to siblings is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

13. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether they have complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

14. The visa applicant has never before travelled to Australia; this is confirmed by Departmental records. As the visa applicant has not previously travelled to Australia, there is no relevant Australian migration history for the Tribunal to consider (his previous application to come to Australia is referred to below).

15. 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.

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

17. The evidence before the Tribunal (including paragraph 5 above), which it accepts, sourced from the review applicant and the visa applicant (some of which is supported by documentation, is set out below.

    ·     The review applicant is a director of companies involved in construction in Australia. He was also born in Becharre. He arrived in Australia in 2001 on the basis of his marriage. He and his wife have two children and are still married. He has returned to Lebanon in 2007 and 2011; his work commitments have stopped him from retuning more often.

    ·     The whole family is Christian.

    ·     The applicants’ father runs a business which owns numberplates, which he rents out.  His business means that he is often travelling to Tripoli and he associates with people from all different religions. His father has had no problems in Lebanon.

    ·     None of the review applicant’s parents or siblings reside in Australia, they all reside in Lebanon. The review applicant does have five cousins in Australia. The review applicant said that they are all here on the basis of marriage, not on the basis of any other permanent visa.

    ·     The applicants’ parents have previously travelled to Australia in 2007 and they have complied with the conditions of their visitor visas (returning after five weeks, although had been granted three-month visas). He wants his parents to come out again because they have not met his daughter who is now seven years of age.

    ·     The review applicant has three siblings (including the visa applicant, all of whom reside in Lebanon).  All except the visa applicant have been granted a visitor visas to come to see the review applicant. The sister Rita, who lives in the same suburb as the visa applicant, came in 2010/2011 with her husband and her two children; they stayed for four weeks at Christmas time and then went back they complied with the conditions of their visas. The brother Roger was granted a three-month visa and he came to Australia in 2008; he complied with the conditions of his visa, returning a few days short of the three month period.

    ·     The review applicant has only sponsored his mother, father and sister to come to Australia, and they have all complied with the conditions of their visa. In his industry, he is often requested to sponsor workers; however he never does so because it may be difficult to guarantee that other people will comply with the conditions of their visas. However, with his family, he can ensure that they will comply with the conditions of their visas, and he is aware that if he sponsors someone who does the wrong thing, this will jeopardise future applications for his family members.

18. It was noted in the visa application form that the visa applicant had been refused a visa to come to Australia in 2010. The review applicant said that on that occasion, the delegate had considered that the visa applicant did not have a genuine intention just to visit. The review applicant said he did not understand why his brother, the visa applicant, had been refused, given his parents and other brother had by that time been granted visitor visas, and had returned to Lebanon. He  did not however lodge an application for review to the (then) Migration Review Tribunal in relation to that first refusal for the visa applicant.

19. On the evidence before it the Tribunal does not consider the previous history of having made an unsuccessful visitor visa application to indicate that the visa applicant does not intend a genuine stay in Australia.

20. The review applicant said that he did not understand why the second (current) visa application for the visa applicant was again refused, so on this occasion he lodged an application for review to the Tribunal.

21. In considering whether the visa applicant intends to comply with condition 8101, the Tribunal considered the proposed financial arrangements for the visit to Australia. The evidence was that the review applicant will provide accommodation, meals, transport and all other incidentals during the stay and that the visa applicant also has his own money. The visa applicant said that he has some money in the bank, however he does not like to keep it in the bank because the interest rates are too high. Instead he carries around cheques that he signs over to other people when he wants to pay for something. The Tribunal is prepared to accept this.  

22. The Tribunal accepts that the visa applicant will live with the review applicant and his wife during his proposed stay in Australia, and that his living expenses in Australia will be paid for by them or by the visa applicant. Having regard to his situation in Lebanon (an ongoing business he has been operating for many years), the Tribunal is not satisfied that the visa applicant is coming to Australia with the intention of working. The Tribunal is satisfied that the visa applicant does not need to, or want to, work while in Australia and therefore the Tribunal is satisfied that the visa applicant intends to comply with a condition not to work in Australia.

23. There is no evidence before the Tribunal to indicate that the visa applicant wishes to, or intends to engage in study or training whilst in Australia.

24. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The visa application form states that the visa applicant would like to visit for a period up to three months; the suggestion of six weeks, referred to by the delegate, was discussed. The Tribunal asked how he could organise for his businesses survive while he is away for six weeks. The review applicant said that the plan had been for the visa applicant to come at Christmas time, which is why the planned length of stay was longer. As that time has now passed, he would come for a shorter time, because of the business.

25. The Tribunal has also considered the visa applicant’s family ties in Australia and Lebanon. The Tribunal accepts that he has his parents and the majority of his siblings in Lebanon. He said his parents are elderly and he wants to stay near them. The visa applicant gave evidence that he has a girlfriend whom he intends to marry, and that he has bought an apartment with a view to marriage recently in order to be closer to her, and so that she can be closer to her family when they get married. The Tribunal is prepared to accept these ties and, taking into account his ongoing business, considers that the visa applicant’s ties in Lebanon are stronger than his ties in Australia.

26. The Tribunal was concerned, because of the neighbouring conflict in Syria, and the effect it has had on Lebanon, that the visa applicant may seek to overstay his visa and remain in Australia due to the country conditions. The review applicant and the visa applicant all confirmed that the visa applicant has not experienced any difficulties or problems in Lebanon. The Tribunal has had regard to the DFAT report on country conditions on Lebanon, and it read out extracts of the reports, including that:

    SECURITY

    2.40 Mount Lebanon Governorate, Nabatiye Governorate and South Governorate are broadly stable and DFAT is not aware of any recent illustrative examples of sectarian violence. The current security situation in the North Governorate, Beka’a Governorate and Beirut Governorate is more uncertain, and is considered in more detail below (see ‘Refugee Convention Claims’)….

    Christian Denominations

    3.31 Sources suggest that between 35 and 40 per cent of Lebanon’s population is Christian. Maronite Christians are concentrated in Mount Lebanon and in Beirut and its surrounds. Lebanon is also home to a range of other recognised Christian denominations, including Armenian Catholic, Armenian Orthodox, Assyrian Church of the East, Chaldean Catholic, Copts, Greek Catholic, Greek Orthodox, Latin Catholic, Protestant, Syriac Catholic and Syriac Orthodox.

    3.32 DFAT understands that there is a growing feeling of marginalisation in the Christian community, given the position of President (who is normally a Christian) remains unfilled and the perceived threat of extremist groups such as al-Nusra and Daesh. However, DFAT is unable to point to any specific examples of how this marginalisation has occurred in practice.

    3.33 Overall, DFAT assesses that Christians are not generally at risk from official or societal discrimination or violence on the basis of their religious identity alone. However, this risk increases in the event that a Christian (or a member of any other religious group) voices criticism of another religious group.

27. The review applicant confirmed that the visa applicant is not the type to voice any religious criticism.  The review applicant said that the family is based in the north, nowhere near the city or where the trouble has been. When there was trouble, seven years ago, people would migrate from Tripoli and Beirut to stay with the applicant’s family (due to the stability in their village). Both the applicant’s brother and his father are involved in businesses that by their nature involve forming and maintaining relationships across all religious denominations; the visa applicant drives his bus to Tripoli and picks up passengers of all denominations and without discrimination. The review applicant said that there had been minimal violence in Becharre; there had been more violence in Tripoli.

28. The review applicant said that the visa applicant has not suffered any harm, problems, worries or concerns. He said that he would know if the visa applicant was having problems, because he talks to the family every week and they are very close. He is always in the loop about everything because he is the only brother overseas. They would be aware if he had suffered problems, and he has not.

29. The visa applicant’s evidence was consistent; and concerning the issue of violence, he said that his area is calm, but sometimes when they go to Beirut there may be a problem, they may have to stop work for a week; then it goes back to normal.

30. The Tribunal asked about the growing feeling of marginalisation in the Christian community referred to in the DFAT report. The review applicant said that the lack of a Christian President did not mean much. He said that they have felt marginalised for a long time, but those who have businesses stay; it is those who don’t who leave. The lifestyle is good for those with businesses: they live in the village, but they travel to the city for work and then return home to the village. The visa applicant said that he liked living in his Christian village.

31. The Tribunal is prepared to accept the assertion that the visa applicant is not concerned about or affected by security conditions/general violence in Lebanon. The Tribunal is prepared to accept these assertions from the review applicant and the visa applicant, and considers that if these assertions (and if their assertions that he will return in compliance with the conditions of his visa, and not apply for any other visa) were not correct, this would adversely affect their credibility in any future application they were involved in.

32. The Tribunal also notes that the review applicant offered to lodge a security bond as an incentive, and to confirm that the visa applicant would return to Lebanon within the terms of any visitor visa. The Tribunal indicated that the Department could impose a security bond in any amount determined by them. The review applicant suggested a security bond in the sum of about $10,000 or $20,000. The Tribunal considers that the review applicant has access to funds and that they can provide financial security to ensure that the visa applicant comply with the conditions of the visa, and that, depending on the amount of the bond which may be imposed, this would be a strong incentive for the visa applicant to comply with the visa conditions.

33. For the above reasons, including but not limited to the strong family ties in Lebanon, the visa applicant’s business, the past history of the visa applicant’s other family members in coming to Australia and complying with their visa conditions, the assertions about the visa applicant’s ability to live a normal lifestyle in Lebanon and that security conditions are not an incentive for him to overstay, the consistent evidence of the applicants, the assertion of the applicants that the visa applicant will not overstay, the Tribunal is satisfied that the visa applicant genuinely intend 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.

1. 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

2. The Tribunal remits the application for Visitor (Class FA) visas 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.

   Christine Cody
   Member