1707677 (Migration)

[2017] AATA 2976

1707677 (Migration) [2017] AATA 2976 (1 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707677

DIBP REFERENCE(S):  BCC2017/1129391

MEMBER:Ian Garnham

DATE:1 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 01 December 2017 at 4:34pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Family members living in Australia – Previously visited Australia – Credibility – Persistent unlawful periods by both the review applicant and brother

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 r Schedule 2 cls 600.211, 600.211(a)-(c), 600.221, 600.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 30 March 2017 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 23 March 2017. 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 Tourist 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.  

5. The review applicant appeared before the Tribunal on 2 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who is the father of the review [applicant].

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. The review applicant was represented in relation to the review by his registered migration agent.  A comprehensive written submission dated 23 May 2017 was provided to the Tribunal on this day.  

8. 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.

10.In the present case, the visa applicant seeks the visa for the purposes of visiting his children and grandchildren in Australia and tourism. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

Background:

11.The review applicant came to Australia on 26/08/07 on a subclass 300 prospective marriage visa.  He departed Australia 14/09/09.  On 21/11/11 he was granted a subclass 309 offshore partner visa and he again arrived in Australia on 29/11/11.  On 19/03/15 he was granted a permanent subclass 100 partner visa.

12.The visa applicant is his 52 year old father, who is a citizen of and resides in Lebanon.

13.The review applicant claimed that his father has 2 wives and 19 children.  The review applicant said he is one of 9 children of the first wife.  He said that four of these children are currently living in Australia and of the other 5 children, one lives independently with his family and the other 4 live with the visa applicant.  The visa applicant’s other family, along with the visa applicant and his other wife and their 10 children live next door.

cl.600.211(a):

14.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.

15.The visa applicant has previously come to Australia on a subclass 679 tourist                visa for almost 3 months in early 2008.  He departed on the day his visa ceased to have effect.  I acknowledge that his Movement Details represent full compliance with the conditions of the visa.

16.However, I must also acknowledge that the previous visit was almost 10 years and that the review applicant was also in Australia over this period and became unlawful, for the first time, approximately 3 weeks after the visa applicant departed.  These matters are more fully discussed below in a broader context in the consideration of some of the visa applicant’s children’s immigration histories.

17.The review applicant also said his mother had visited Australia as a visitor and complied with her visa conditions on 2 occasions.  The Tribunal was unable to locate Movement Details based on the information contained in the application and various birth dates including those provided in the hearing.    

cl.600.211(b):

18.The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611[(2) OR (3) OR (4)]):

·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.

19.The delegate placed little weight on the visa applicant’s business interests in Lebanon as incentive to return, and they also placed little weight on the invitation letter provided by his son, the review applicant, and took an adverse view because another son, who arrived in Australia on 20/10/08 did not comply with the conditions of his tourist visa and had applied for protection visas while he was in Australia for over 8 years.  Furthermore, the political and security situation in Lebanon had been unstable for many years.     

20.The applicants have provided evidence about the visa applicant’s incentives to return to Lebanon.  

21.Firstly the review applicant submitted that the visa applicant has strong familial ties at his home in Ein El Zahab.  He has his 2^nd wife and their 10 young children.  He also has his first wife and 5 of their children although one child has left home and lives independently.

22.I acknowledge these are significant family ties that present a strong incentive for the visa applicant to return to his home.  However I must balance this incentive against any incentives I deem that the visa applicant has to remain in Australia.  In so doing, I note that 4 of the children from his first family are now or have been long term residents in Australia.  I therefore also must acknowledge that three of these children have shown, in different ways, a propensity to seek to remain in Australia after arrival regardless of the conditions of the visa on which they arrived.  I also acknowledge that four of the visa applicant’s children of his first family live or have lived in Australia.  As such these children and their migration histories (discussed below) represent a significant incentive for the visa applicant to seek to remain in Australia.    

23.The visa applicant owns significant assets and an electrical supplies business in Lebanon.  This is unsurprising; he has two wives and has had 19 children to provide for.  In response to an Ministry of the Interior and Municipalities statement dated 15/03/17[1], the visa applicant said he has a two storey house (the visa applicant said this was effectively 3 houses) and a store for his electrical supplies business as well as a separate 2,000m² plot of land.   

[1] At 15 (DIBP)

24.The visa applicant said that in his absence his children will run his business and that they often do so anyway because he does not always go to work.  He also said that he just wanted to visit the country and his children and grandchildren he has not met, although he was unsure whether he had 2 or 3 in Australia.

25.I am satisfied that the visa applicant has the assets that have been described and the large family as presented.  I also recognise they are both strong incentives for him to return to Lebanon. 

26.However, of themselves, these ties do not convince me that the visa applicant intends to stay temporarily in Australia.    

cl.600.211(c):

27.The Tribunal has also considered all other relevant matters. 

28.After the hearing the Tribunal further investigated the Movement Details of the review and visa applicants and other family members who have travelled to Australia.  Upon reviewing this information I developed significant concerns about persistent unlawful periods by both the review applicant and a brother.    

29.The Tribunal wrote to the review applicant inviting comment on the concerns raised, in the following terms;

In the hearing and in your submission to the Tribunal you have submitted that the visa applicant and his wife have previously made compliant visits to Australia. The Tribunal acknowledges that the visa applicant arrived in Australia on 01/02/08 on a tourist visa that was effective until 01/05/08 and that he departed Australia on 25/04/08.

Unfortunately the Tribunal has been unable to find Departmental Movement Details for your mother using her name that has been recorded in the visa application and various birth dates including those suggested at the hearing. Nevertheless the Tribunal accepts your evidence that she has also travelled to Australia some time ago and in so doing complied with the conditions of her tourist visa.

However during the further review of this matter the Tribunal has developed some concerns by the apparent failure to comply with visa conditions by other members of your family, including yourself, that were not raised, or fully discussed at the hearing.

The particulars of the information are:

(a)  You appear to have had significant periods In Australia where you were an unlawful non-citizen (without a visa), as follows:

·On 29/04/08 you were granted a bridging visa that was valid until 13/05/08.  You were not granted a further bridging visa until 15/07/08.  This indicates that you were unlawful for the period; 13/05/08 to15/07/08 -approximately 2 months.

·On 15/07/08 you were granted a bridging visa that was valid until 29/09/08. You were not granted a further bridging visa until 28/10/08.  This indicates that you were unlawful for the period; 29/09/08 to 28/10/08 – approximately 1 month.

·On 28/10/08 you were granted a bridging visa that was valid until 28/11/08. You were not granted a further bridging visa until 05/01/09.  This indicates that you were unlawful for the period; 28/11/08 to 05/01/09 – approximately 1 month and 1week.

·On 05/01/09 you were granted a bridging visa that was valid until 05/02/09. You were not granted a further bridging visa until 02/04/09. This indicates that you were unlawful for the period; 05/02/09 to 02/04/09 – approximately 2 months.

·On 28/05/09 you were granted a bridging visa that was valid until 01/07/09. You were not granted a further bridging visa until 11/08/09. This indicates that you were unlawful for the period; 01/07/09 to 11/08/09 – approximately 1 month and 1 week.

·On 24/08/09 you were granted a bridging visa that was valid until 31/08/09. You were not granted a further bridging visa until 08/09/09. This indicates that you were unlawful for the period; 31/08/09 to 08/09/09 – approximately 1 week.

·This means that over this time period you were an unlawful non-citizen on 6 separate occasions for a total period of approximately 8 months.

(b)  Your [sister’s] subclass 801 Partner visa was cancelled on 14/11/16 as a consequence of her husband’s Protection visa being cancelled. She was not granted a further visa until 18/07/17. It appears that for the period 14/11/16 to 18/07/17 (approximately 8 months) she was an unlawful noncitizen.

(c) Your brother, [who] I note left Australia on 16/08/17 after 2 failed protection visa applications, also appears to have spent the following periods unlawfully in Australia;

·On 27/10/10 he was granted a bridging visa that was valid until

29/11/10. He was not granted a further bridging visa until 07/12/10.
This indicates that he was unlawful for the period; 29/11/10 to 07/12/10 - approximately 1 week.

·On 07/12/10 he was granted a bridging visa that was valid until

07/01/11. He was not granted a further bridging visa until 12/01/11.
This indicates that he was unlawful for the period; 07/01/11 to 12/01/11 - approximately 1 week.

·On 15/02/11 he was granted a bridging visa that was valid until

15/03/11. He was not granted a further bridging visa until 25/03/11.
This indicates that he was unlawful for the period; 07/01/11 to 12/01/11 - approximately 1 week.

·On 22/09/11 he was granted a bridging visa that was valid until

06/10/10/11. He was not granted a further bridging visa until 10/10/11. This indicates that he was unlawful for the period; 06/10/11 to 10/10/11 - approximately 1 week.

·On 24/11/11 he was granted a bridging visa that was valid until

28/11/11. He was not granted a further bridging visa until 17/01/12.
This indicates that he was unlawful for the period; 28/11/11 to 17/01/12 - approximately 6 weeks.

·On 17/01/12 he was granted a bridging visa that was valid until

31/01/12. He was not granted a further bridging visa until 24/02/12.
This indicates that he was unlawful for the period; 31/01/12 to 24/02/12 - approximately one month.

·On 24/02/12 he was granted a bridging visa that was valid until

15/03/12. He was not granted a further bridging visa until 10/12/12.
This indicates that he was unlawful for the period; 15/03/12 to 10/12/12 - approximately nine months.

·On 30/05/14 he was granted a bridging visa that was valid

until 03/05/16. He was not granted a further bridging visa until 20/07/16. This indicates that he was unlawful for the period; 03/05/16 to 20/07/16 approximately two months and 2 weeks.

·This means that over this time period he was an unlawful non

citizen, for a significant period on 8 separate occasions for a total period of approximately 1 year and 3 months.

This information is relevant to the review because the Tribunal could form a view, that despite previous compliant travel by your parents, the conduct of yourself and other family members (as set out above) with respect to compliance with migration law and visa conditions, demonstrates a tendency by all of your family to disregard conditions placed on visas.

If we rely on this information in making our decision, we may reach a decision that your father is not seeking to temporarily visit Australia.

30.The review applicant’s representative responded to this information on 17 October 2017 and made the following relevant points:

·The sponsor was only 19 years old when he failed to comply with his visa conditions and was unaware of the consequences of doing so.  He was immature and did not understand immigration law.  He is now 29 years old and a permanent resident with a wife and children.

·The visa applicant is aware that if he fails to comply with the conditions he will harm his son’s reputation and jeopardise the opportunity for other family members to visit Australia.

·This matter should be assessed independently and not based on the immigration of the three children, set out above.  This is because the visa applicant has familial obligations; he is aware of visa conditions as shown by his previous compliant visits, and the significant age difference between the visa applicant and his children makes it unlikely he will engage in similar behaviour.

·The visa applicant has obligations to his large family in Lebanon.

·The visa applicant has greater awareness of the visa conditions because of his previous compliant visits.  And because of the significant age difference between the visa applicant and his children he unlikely to replicate their behaviour. 

Consideration:        

31.In the submission and in the response, a point is repeatedly made that the visa applicant has made previous compliant visits to Australia.  He has made one visit, in 2008 as set out above.  At that time the visa applicant was 42 years old, he is now 52 and has had a further four children born that he has to provide for.  The circumstances of both of his sets of children are now very different, as are his.

32.During the last 10 years three of his children have traversed the migration histories set out above.  According to the review applicant a further brother and a son of the visa applicant came to Australia four years ago on a partner visa.  The common feature of all of his children’s visits to Australia is that they have stayed or sought to stay permanently and, no doubt for different reasons, as a consequence they have all sometimes encountered periods of unlawfulness.   

33.I do not agree with the proposition in the submissions that the migration history of the children is irrelevant.  This is especially so because I consider that the timing of when the visa applicant did previously visit Australia is also significantly associated with their histories.  When he left, on 25 April 2008, was when two of his children were in Australia.  One son (who also experienced short periods of unlawfulness) had been in Australia since 2004 and had recently become a permanent resident.  The review applicant had also been here for a few months on a prospective marriage visa and upon the visa applicant’s departure would soon become an unlawful non-citizen for the first time.  A few months after the visa applicant did depart; a further son would come to Australia on a tourist visa and remain for almost 9 years on bridging visas and unlawful periods while his protection claims were processed before departing recently.

34.I think the history of the children demonstrates a clear propensity to seek to remain permanently in Australia following arrival, regardless of the type of visa used for entry.  These histories at least, counteract the influence of the visa applicant’s previous compliant visit to Australia. 

35.Similarly, I do not agree with the proposition that because of the visa applicant’s age and awareness he will not seek to remain in Australia.  I consider that the fact that all of the members of family for who I do have Movement Details have sought to remain permanently upon arrival bestows knowledge on the visa applicant that may equally encourage him to remain permanently.     

36.After careful consideration of all of the evidence, on balance, I am not satisfied that the visa applicant genuinely intends to stay temporarily in Australia to visit his family and conduct tourist activities.

37.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

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

Ian Garnham
Member