1604946 (Migration)

[2016] AATA 4622

1604946 (Migration) [2016] AATA 4622 (2 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs MANAL EL HAJ DIB

VISA APPLICANT:  Mr DARDAA DIB

CASE NUMBER:  1604946

DIBP REFERENCE(S):  BCC2016/370568

MEMBER:Rachel Homan

DATE:2 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 02 November 2016 at 2:39pm

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 8 March 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 11 January 2016. 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 review applicant appeared before the Tribunal on 19 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s sister, Mrs Emne El Haj Dib. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The review applicant was represented in relation to the review by a registered migration agent, who did not attend the hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

   Claims and evidence

9. The visa applicant is a male Lebanese national born in 1991, who indicated in his visa application form that he wished to visit Australia for a period of up to 3 months in order to visit his grandparents, aunts and uncles, as he had not seen them in a long time.

10. There is no information before the Tribunal to indicate that the visa applicant has previously held an Australian visa.

11. The visa applicant has never been married or in a de facto relationship but has parents, six sisters and three brothers all residing in Fneidek, Akkar, North Lebanon. Oral evidence was given to the Tribunal that the visa applicant was recently engaged and that his fiancée also resides in Lebanon, where she works as a teacher. Photographic evidence was shown to the Tribunal at the hearing of the visa applicant’s engagement ceremony.

12. The visa applicant is presently residing in Saudi Arabia. The visa applicant indicated in the visa application that he had been working as a cook since February 2014 in Riyadh. The visa applicant’s claims were supported by a letter from his employer.

13. The Tribunal noted at the hearing that there was no documentary evidence before the Tribunal of the visa applicant’s current visa status in Saudi Arabia, his income, current employment status, assets or savings. The review applicant undertook to provide further evidence to the Tribunal by 26 October 2016. On 24 October 2016, the Tribunal received additional documentary evidence comprising a new letter from the applicant’s employer confirming his employment under sponsorship in the position of “master chef”; a copy of a Saudi Arabian visa valid for 90 days issued to the applicant on 19 March 2014; a translated copy of a current Saudi Arabian resident identity card; a bank statement from Al Rajhi Bank showing an available balance of “0,45”; and a number of photographs of the visa applicant and his fiancée.

14. The visa applicant’s relatives in Australia include his maternal grandparents, uncles and aunts. The visa applicant was sponsored for the visa by one of his aunts, who is the review applicant. The review applicant completed a sponsorship form in which she confirmed that she would arrange for the lodgement of a security bond if requested to do so. However, the review applicant indicated in the sponsorship form that she was not presently employed and was a housewife. At the Tribunal hearing, the review applicant confirmed that both she and her husband were financially reliant on Centrelink payments.

15. The Tribunal put to the review applicant at hearing that it had significant concern as to how the visa applicant’s stay would be funded without the visa applicant working in breach of condition 8101. The review applicant responded that the visa applicant was financially well-off and had given $30,000 to their lawyer to secure the visa. When the Tribunal queried this amount suggesting that it was a lot of money to secure a visitor visa, the review applicant told the Tribunal that the money had been paid to the lawyer in the event that the visa was granted and a bond required.

16. The delegate’s decision record, which the review applicant submitted to the Tribunal at the time she applied for review indicates that one of the visa applicant’s aunts arrived in Australia on a sponsored visitor visa in 2012 and did not abide by the conditions of that visa. The delegate expressed concern that the visa applicant may attempt to remain in Australia beyond the validity of the visa given the migration history of his close family member. Responding to this issue at the hearing, the review applicant indicated that her sister had travelled to Australia and then ran off with a man and got married without telling them. The review applicant indicated that the visa applicant’s circumstances were different and that he had a job and a fiancée to go back to.

17. The Tribunal discussed with the review applicant at hearing country information available from the Australian government’s Smart Traveller website, which currently warns Australian travellers to reconsider their need to travel to Lebanon generally and not to travel to Tripoli and parts of North Lebanon.[1] The website states that the ongoing conflict in neighbouring Syria is having a destabilising effect on Lebanon. Violent incidents related to the situation in Syria – including car bombs, improvised explosive device (IED) attacks and rocket attacks – have occurred in various parts of Lebanon and are likely to occur in the future. Violence may spill over without warning. Australians are strongly advised not to travel to Tripoli and northern Lebanon, north of a line from Tripoli to Sir Ed-Dinniyeh and Arsal due to ongoing clashes between Lebanese security forces and militants in the region. Security operations are underway in Akkar following the recent fighting in Tripoli and surrounds. Lebanese authorities assess that a number of the extremists involved in the fighting have sought refuge in northern Lebanon. The Lebanese Armed Forces (LAF) is conducting raids against individuals in Dinniyeh believed to be associated with ISIL, seizing weapons and explosives.

    [1]

18. The Tribunal put to the review applicant that the Tribunal was concerned that the security situation in the visa applicant’s home area in Lebanon may discourage him from returning to Lebanon. Given that the visa applicant’s status in Saudi Arabia appeared temporary, this appeared to be a relevant consideration. The review applicant responded that the visa applicant had never thought about staying in Australia. He simply wished to visit for a month and then go back to his work and fiancée. Oral evidence was also provided that the visa applicant regularly returns to Lebanon.

    Findings and reasons

19. The Tribunal has weighed the evidence and is not satisfied that the visa applicant has strong incentives to return to Saudi Arabia. Although the Tribunal accepts that the visa applicant has lawful status in Saudi Arabia and is presently employed there, the evidence does not indicate that the visa applicant owns any assets in Saudi Arabia, there is no independent evidence as to the amount of the visa applicant’s salary or wages and the recent bank statement submitted to the Tribunal indicates that the visa applicant has only minimal savings.

20. The Tribunal finds that the visa applicant’s immediate family and his fiancée are all located in Lebanon and the Tribunal accepts that the visa applicant has returned to that country since commencing work in Saudi Arabia. Whilst this ostensibly provides the visa applicant with an incentive to return to Lebanon, the country information before the Tribunal, discussed with the review applicant at hearing, indicates that security conditions in the applicant’s home area in Lebanon may provide the visa applicant with an incentive to settle outside that country. The visa applicant’s relocation to Saudi Arabia for employment purposes suggests that economic conditions in the applicant’s home area in Lebanon may also be unfavourable.

21. The visa applicant is of working age and recently engaged. The Tribunal considers that the prospect of more favourable employment conditions and wages would provide him with an incentive to work in this country in breach of condition 8101. The Tribunal also has significant concerns as to how the applicant would fund his stay in Australia. Although the review applicant has asserted that the visa applicant is relatively well-off, this claim is not supported by the documentary evidence. The bank statement before the Tribunal does not indicate that the visa applicant has sufficient savings to fund a visit to Australia. Whilst the Tribunal accepts that the visa applicant would be provided with accommodation and board by his relatives in Australia, the evidence does not suggest that they are in a position to provide him with any significant financial support.

22. The Tribunal has some concern about the evidence that the visa applicant paid $30,000 to an agent in connection with the visa application. This appears to be an exorbitant figure for a temporary visa application. Although the review applicant has claimed that the amount was deposited in the event that a bond was required, given that the requirement to pay a security and the amount are discretionary, this arrangement appears somewhat unusual.

23. The Tribunal has placed no weight on the evidence pertaining to the visa applicant’s aunt’s change of status in Australia as the Tribunal is satisfied that her circumstances are sufficiently distinguishable from the visa applicant’s.

24. The Tribunal has placed weight on the review applicant’s sponsorship undertakings and her assertions that the visa applicant intends to comply with his visa conditions and remain in Australia temporarily for a visit.

25. However, after weighing the evidence, 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

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

    Rachel Homan
    Member