1708843 (Migration)

[2018] AATA 420

1708843 (Migration) [2018] AATA 420 (23 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708843

MEMBER:John Billings

DATE:23 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 January 2018 at 5:15pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Not genuine temporary stay – No evidence of employment – Security situation in Lebanon – Immigration history – Contradictory financial evidence – Substantial personal ties to Australia – No strong incentive to return

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.211(b), cl 600.211(c), cl 600.612

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 [in] February 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, [Ms A], applied for the visa [in] January 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case [Ms A] 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 he or she 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 [Ms A] did not meet cl.600.211.  The delegate remarked - without elaboration - that he was conscious of [Ms A]’s family links to Australia and the circumstances surrounding the arrival and departure of family members.  The delegate noted the presence of non-dependant family members in Lebanon.  Further, in particular, the delegate referred to a lack of evidence in support of [Ms A]’s claim that she is self-employed in Lebanon, and to the security situation especially in [Ms A]’s region.  The delegate was ultimately not satisfied that [Ms A] genuinely intends to stay temporarily in Australia. 

5. The review applicant, [Mr B], is [Ms A]’s brother.  He applied for review [in] April 2017. 

6. [Mr B] appeared before the Tribunal on 19 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B]’s wife, [name], and, by telephone, from [Ms A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. [Ms A] is a [age] national of Lebanon.  She is not married.  [Ms A] lives with her mother and some younger siblings in Akkar.  Her father is deceased.  Her mother is [age].  [Ms A] has [number] siblings whose ages range from under [age] to over [age].  [Number] of her siblings are in Lebanon.  Some of those are married.  Her other [number] siblings – [Mr B] and [number] sisters - live in Australia.  [Ms A] claims to own a shop in her village and to work there as a [occupation].  She has never travelled outside Lebanon.  She has been refused a Visitor visa on one or two previous occasions. 

8. [Mr B] is a [age] Australian permanent resident.  His sisters in Australia, aged [ages], are also permanent residents. The circumstances of [Mr B] and his sisters in Australia are similar in that years ago each obtained a temporary offshore Partner visa before ultimately being granted a permanent Partner visa.  One of [Mr B]’s sisters now holds a Class BB Subclass 155 Resident Return visa. 

9. [Ms A] has a brother who came to Australia in June 2012 holding a Class UL Subclass 679 Visitor visa that ceased in July 2012.  In circumstances referred to below her brother departed Australia approximately three years after he arrived.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether cl.600.211 is met.  This 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 he or she 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. In the present case, [Ms A] seeks the visa for the purposes of visiting [Mr B] and his sisters in Australia and their families. This 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 he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

14. 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.

15. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

16. Before proceeding, the Tribunal notes that there were anomalies in the evidence, some of which undermine [Ms A]’s claims that she genuinely intends to stay temporarily in Australia.

17. It is noteworthy that the delegate specifically referred to the lack of evidence to support the claim that [Ms A] is a self-employed [occupation].  Despite the delegate’s remarks, no documents in relation to the issue of [Ms A]’s employment were submitted to the Tribunal.  There was no documentation to support the claim that she owns any shop.  There was a document submitted to the Department, ostensibly written on behalf of the “[organisation]”, regarding a [particular] course [Ms A] undertook from 2005 to 2007.  There was also a letter, ostensibly written by [an official] of her district in October 2016, stating that [Ms A] had been employed at the municipality for 18 months and had also worked as a [occupation] part time before she left her job at the municipality to concentrate on [occupation] “in her home”.  However, in contrast, [Mr B] told the Tribunal that [Ms A] continued to work at the municipality on a part time basis.  [Ms A] confirmed that she no longer worked at the municipality.  [Ms A] also said that when she did work at the municipality it was for only two-three months (not 18 months).  Her evidence casts doubt on the contents of the [official]’s letter. 

18. More significantly, in the Tribunal’s view, there was evidence concerning [Ms A]’s banking arrangements that was contradictory.  There was a document submitted to the Department to show that [Ms A] held significant funds in Lebanon, having deposited about $[amount] in or about November 2016.  [Mr B] told the Tribunal that the sum was earnings from [Ms A]’s [occupation] however [Ms A] could not remember anything about that.  [Ms A] said that she used to have a bank account – when that was, she was not sure - but that she no longer had a bank account.  In response to [Ms A]’s evidence, [Mr B] insisted that the money was [Ms A]’s money and that she had spent it on her family.  He sought to explain [Ms A]’s evidence by saying that that it was very early in the morning in Lebanon when [Ms A] gave evidence and that she could not “quite remember”. 

19. [Mr B] and [Ms A] both told the Tribunal about their brother ([Mr C]) who came to Australia in 2012.  [Mr B] was unclear about how it was that [Mr C] had been able to remain in Australia for three years but he told the Tribunal that his brother had “breached” his visa and “overstayed” before ultimately he was, [Mr B] thought, deported.  In essence [Mr B] however said he understood that [Mr C] had (unsuccessfully) applied to the Tribunal for review of a decision not to grant him a visa.  Eventually [Mr B] said that [Mr C] “may have” applied for protection in Australia.  [Mr B] also told the Tribunal that [Mr C] had been in a relationship with an Australian citizen but the relationship did not last.  Like [Mr B], [Ms A] also used language indicating that [Mr C] had been in breach and had overstayed.  She understood his history to have been the reason or one of the reasons why she had previously been refused a visa to visit Australia. 

20. In relation to [Mr B]’s brother the available records of the Department and the Tribunal indicate at least that there was a brief period of unlawfulness in 2012 after which [Mr C] was granted the first of a series of Bridging visas while he pursued an application for a Protection visa and then an application for review to the Tribunal: AAT reference 1217613.  

21. As [Ms A] has not previously held a visa the consideration in cl.600.211(a) is not applicable.   

22. There is no relevant history of travel on [Ms A]’s part to consider.

23. [Ms A] has substantial personal ties to Australia.  She has one brother and two sisters and their families here.  [Ms A] also has substantial personal ties to Lebanon.  She has her mother and [number] siblings and other relatives there.  [Mr B] described his mother as an “old lady” who has some physical symptoms – a disc problem and pain in her leg.  He said that if [Ms A] visited Australia she would have to return to Lebanon to look after her mother.  What the other witnesses said was not the same.  [Mr B]’s wife described the health of [Mr B]’s mother as good, although she noted an issue to do with her blood pressure.  [Ms A] told the Tribunal that her mother takes medication but she said that she is healthy.  [Ms A] however did also tell the Tribunal that apart from her need to return to her business, she would have to look after her mother and help look after her younger siblings.

24. The Tribunal discussed general country information concerning the troubled security situation in Lebanon, especially in the north[1].  The response in essence was that [Ms A] is safe in her village.  [Ms A]’s history may not have involved any harm or serious risk of harm to her personally, but the general country conditions are relevant to the Tribunal’s consideration of the incentive [Ms A] would have to remain in Australia rather than return to Lebanon.    

    [1] See DFAT Country Information Report Lebanon, 23 October 2017

25. Considering the following matters in particular, the Tribunal is not satisfied that the incentive [Ms A] may have to remain in Australia would be outweighed by an incentive to return to Lebanon.  The irregular immigration history of [Mr C] is of concern, although it is significant that the immigration history of the three of [Ms A]’s siblings who are Australian permanent residents appears to be regular.  Most significantly, whereas the delegate pointed out that there was limited evidence before the Department concerning [Ms A]’s employment circumstances in Lebanon no further documentary evidence about that was submitted to the Tribunal.  It is not merely that the evidence remains limited.  The oral evidence about [Ms A]’s employment and her funds in Lebanon was inconsistent.  The evidence was in conflict with the documentary evidence submitted to the Department.  The Tribunal therefore is not satisfied that [Ms A] has a business or general financial situation in Lebanon of such a nature and scale that it provides substantial if any incentive for her to return to Lebanon.  This issue also has a bearing upon [Ms A]’s claimed intention not to work in Australia.  Given the general state of the evidence the Tribunal is not satisfied that she intends not to work in Australia if granted a Visitor visa.  In addition, the evidence concerning [Ms A]’s widowed mother’s situation, and so concerning what her need for [Ms A]’s presence might be, is not consistent.  But while [Ms A] may play some role in giving support or assistance to her mother, there is evidence that there are several other immediate family members in Lebanon.  Some of those persons may have their own family obligations, but the evidence does not indicate to the satisfaction of the Tribunal that if [Ms A] were not in Lebanon [Ms A]’s mother, or the younger children, would be without support or help so that [Ms A] would consider it imperative for her to return to Lebanon.  

26. For the above reasons the Tribunal is not satisfied that [Ms A] 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

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

    John Billings
    Senior Member