1816704 (Migration)

[2020] AATA 4090

1816704 (Migration) [2020] AATA 4090 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816704

HOME AFFAIRS REFERENCE(S):          BCC2018/1731633

MEMBER:Mara Moustafine

DATE:25 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2020 at 12:04 am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – past immigration history – overstayed previous visit to Australia – intention to comply with visa conditions – no work requirement – economic and political circumstances in Lebanon – incentives to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211; Schedule 8, Conditions 8101, 8201, 8503, 8531

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 9 May 2018 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 17 April 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with several different 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.

   Evidence before the Department

4. Based on his visa application, the visa applicant is a Lebanese citizen born in [year] who seeks the visa for the purpose of visiting his brother, the review applicant, and his family in Sydney. He has been a self-employed [Occupation 1] in [City 1] Lebanon for 4 years. His wife and two children, aged [age] and [age], will remain in Lebanon. His parents, [and siblings] live in Lebanon. He stated that he does not need financial support for his visit, would bring with him US$5,000 and could access his bank account when he needed. He noted that when he visited Australia in 2001, he overstayed his visa validity and that his application for a Subclass 600 Visitor visa in January 2018 had been refused. 

5. According to his application form, the review applicant was born on [date] in [City 2], Lebanon and is now an Australian citizen (copy of Australian passport provided). He is unemployed due to [an] injury but was previously the director of [Company 1]. He provided a statutory declaration in which he stated that he had invited his brother to visit him in Australia for one month and had the financial means to provide any necessary assistance to ensure that his brother had adequate funds for personal support and accommodation during his stay in Australia.

6. Documents submitted to the Department in support of the visa application included an extract from the family register showing the sibling relationship of the visa and review applicants; an extract from the family register relating to the visa applicant’s family; the visa applicant’s passport, including pages containing visas for [Country 1] and [Country 2], entry and exit stamps for [Country 3], [Country 1]; bank statements and a tax revenue payment statement.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she was not satisfied that the applicant genuinely intended to stay temporarily in Australia. The delegate referred to the visa applicant’s past immigration history as well as ongoing political and sectarian tensions in Lebanon as factors which may encourage the visa applicant to remain in Australia.

   Evidence before the Tribunal

8. On 7 June 2018 the review applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review and is taken to be on notice of its findings and reasons.

9. In statements submitted to the Tribunal on 5 June 2018 and 25 November 2019, the review applicant made the following key points:

   a.He and his brother regret what happened in the past as indicated in the refusal letter that his brother previously came to Australia [in] October 2001 as the holder of a Sponsored Family visa which expired [in] January 2002 and remained unlawfully in Australia, departing [in] April 2004.

   b.At the time his brother was young, single and lost a $15,000 bond. His circumstances have now changed as he is a married man, living with his wife and two children in [City 1] and works as a [occupation].

   c.His brother has travelled outside Lebanon, including to [Country 1], [Country 3], [Country 4] and had a [Country 2] visa, and honoured his visa conditions. As a well-settled Lebanese businessman, he has every intention to honour his visa conditions if allowed to visit Australia.

   d.He previously travelled to Lebanon in 2011 but can no longer travel due to a work accident in July 2012. He would like his brother to visit him in Australia for about 3 weeks.

10. Documents submitted ahead of the hearing included a letter from the visa applicant’s bank stating that he held funds in excess of USD 350,000; bank statements showing no outstanding debt and pages from the visa applicant’s passport showing foreign visas and entry and exit stamps.

    The hearing

11. The review applicant appeared before the Tribunal by telephone on 20 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Lebanon by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

12. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter, and because the visa applicant is living in Lebanon. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

13. The Tribunal is satisfied that the visa applicant and review applicant were given a fair opportunity to give evidence and present arguments to the Tribunal, in support of the review.

14. The following is a summary of the information provided by the review applicant in the hearing:

    a.He first came to Australia on a Business visa and got married, then returned on a spouse visa and was granted permanent residence in 2000 and later Australian citizenship. He has since remarried and has [number] children. The rest of his family, including his parents and [number] siblings live in Lebanon.

    b.Due to a work injury nine years ago, he is no longer able to work and cannot travel to Lebanon. He would like his brother, the visa applicant, to visit him in Australia for 3-4 weeks and to spend some time with his family so he can report back to his parents and put their minds at rest about his condition. He last saw his brother in Lebanon nine years ago.

    c.He lives in a three-bedroom housing commission house and has no savings. However, his brother has his own money and would pay for his trip to Australia and could either stay with him and his family or, if he preferred, in a hotel.

    d.His brother is involved in “free business” in Lebanon, doing various things including [Business 1], [Business 2] and [Business 3]. He has savings of some USD 700,000, split in two bank accounts between himself and his wife, who has a good job in a [company]. However, due to the financial problems in Lebanon, no interest is being paid and he is unable to withdraw his money.

    e.His brother previously visited Australia in 2001 on a tourist visa with a bond, which he broke and remained in the country for three years. His brother wanted to become permanent and a solicitor assured him that he could get him a permanent visa and citizenship. He thought it may have been a refugee visa but did not know on what grounds. During that time his brother worked as a [Occupation 2] for around two and half years. Later his brother was taken from the [workplace] to the detention centre. He returned to Lebanon on in 2004.

    f.Since then his brother has travelled to various countries including [Country 3], [Country 4], [Country 1], and [Country 2] for holidays with his family.

    g.The political problems in Lebanon have not affected his brother, who lives in a secure area. However, he has felt the impact of the economic downturn as there is no more [work]. He has had to put his money in the bank, where it earns no interest and cannot be withdrawn.

    h.Two or three years ago his brother was refused a tourist visit to Australia.

    i.His brother has incentive to return to Lebanon were he to visit Australia because his wife and children are there, whereas previously he was single. He had a five-year visa for [Country 2] but had not tried to stay there.

15. The following is a summary of the information provided by the visa applicant in the hearing:

    a.He lives in [City 1], Lebanon with his wife and two children.

    b.He was a “free trader”, but most recently was working in [Business 1], which he sold at a profit of US$100,000. He wanted to [continue in that business], but as the central bank stopped lending money in 2017, this did not work out, so he has not been working since then. Previously, he had a [shop], a [company engaging in specified business] and also [worked in Business 3]. His wife was still working, earning US$ 3300 per month. He has savings of US$350,000 and no debt.

    c.He wishes to visit Australia for 3 to 4 weeks because he has not seen his brother, who had an accident, eight years ago. He would pay for his visit himself and stay with his brother. He wanted to see his brother’s children and tour around with them and has missed Australia. He is not planning to work or study in Australia.

    d.He last visited Australia in 2001 on a tourist visas sponsored by his brother and departed in 2004. During that time, he worked as a [Occupation 2] as he had to work. Asked what visa he had been on at the time, he said a tourist visa. He had intended to return to Lebanon, but a solicitor told him he could fix his paperwork to allow him to stay on a permanent basis, so he paid him for this. He did not know what kind of visa the solicitor applied for. However, the solicitor did not do a proper job, and, in the end, he was taken into detention.

    e.The only visa he has been refused was a visitor visa in 2018.

    f.He had not been affected by the political or economic problems in Lebanon, including the recent explosion at the port. However, there were problems for customers who wanted to buy his [products] because they could not borrow money. Because of coronavirus he had been in isolation.

    g.His incentive to return to Lebanon on was his family. This was the first trip he would be making without them, but he wanted to see his brother and his family.

16. Invited to comment on his brother’s evidence, the review applicant said that the Tribunal should note that his brother had not filled in his own application forms as he did not know English but had other people do it for him. Likewise, the review applicant had not filled in his own form but had been assisted by his wife.

17. In accordance with s.359AA of the Act, the Tribunal drew to the review applicant’s attention and invited his comment or response on information before it that would be the reason, or a part of the reason, for affirming the decision made by the Department. This information was as follows.

18. Firstly, Department and Tribunal records indicated that on his previous visit to Australia, the visa applicant arrived on a Sponsored Family Visitor visa with three months validity [in] October 2001 and applied for a Protection visa ten days after his arrival. When this visa was refused on 6 May 2002, he applied unsuccessfully for review by the Refugee Review Tribunal (RRT) and the Court and only departed Australia [in] April 2004. Secondly, Department and Tribunal records showed that after holding several Visitor visas in Australia in 1995 and 1996, the review applicant applied unsuccessfully for a Protection visa in March 1996 and subsequently for review by the RRT before leaving Australia and returning on a Partner visa six months later.

19. The Tribunal noted that this immigration history was of concern because it raised the issue of whether the visa applicant was again planning to enter on a Visitor visa and then apply for a permanent visa. The fact that the visa applicant made no mention in his current application of having been refused a Protection visa in 2001, but only mentioned the refusal of his subclass 600 Visitor visa in 2018 also raised concerns about his truthfulness.

20. Thirdly, the Tribunal noted that Department records indicated that in his application for a Visitor visa in January 2018, the visa applicant declared that he was a self-employed [Occupation 3] for 14 years. By contrast, in his current visa application lodged in April 2018, he identified himself as a [Occupation 1] for the past 4 years. This inconsistency compounded the Tribunal’s concern about the visa applicant’s truthfulness.

21. The review applicant was advised that he could respond immediately or request more time, which the Tribunal would consider. The review applicant responded that his brother simply went along with the solicitor who undertook to get him a permanent visa and did not know the details of what kind of visa the solicitor had applied for. The review applicant said the same thing had happened to him also. He emphasised that his brother had told the Tribunal that his incentive to return to Lebanon was his family and children who would remain at home during his visit. He suggested that the Tribunal should impose a heavy bond such as his total savings of US $370,000.  As for the inconsistency about his brother’s occupation, the review applicant said that, as his brother did not know English, he did not know what information his agent in Lebanon had filled out in his visa application form and did not know what he was signing.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother, the review applicant, and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

24. 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)).

25. The visa applicant has not complied substantially with the conditions of the last substantive Australian visa he held. In his submission to the Tribunal, the review applicant stated that his brother arrived in Australia [in] October 2001 as the holder of a Sponsored Family visa which expired [in] January 2002 and remained unlawfully in Australia, departing [in] April 2004. The visa applicant himself recorded in his application form that when he visited Australia in 2001, he overstayed his visa validity.

26. 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.

27. The Tribunal has considered the written and oral evidence of both the review and visa applicants, as well as documentary evidence submitted in support of the application.

28. Regarding condition 8201, the Tribunal accepts the visa applicant’s evidence that he is not planning to engage in study or training in Australia. The visa applicant also stated that he would not work in Australia. The Tribunal accepts that the visa applicant will be accommodated by the review applicant while in Australia, although the review applicant made it clear that he does not have the means to support his brother during his stay and that he would pay all costs related to his visit. The Tribunal also accepts that, if he remains here for three to four weeks, there would be limited time and opportunity for the visa applicant to work in Australia. However, for reasons detailed below, the Tribunal is concerned that the visa applicant would try to remain in Australia past the time of his permitted stay here. In such circumstances the Tribunal considers it likely he would seek to work here in order to support himself. It notes that, by the evidence of both the visa applicant and review applicant at hearing, during his previous visit to Australia, the visa applicant worked for several years as a [Occupation 2]. The Tribunal is therefore not satisfied he intends to comply with condition 8101.

29. Condition 8503 refers to entitlement and is not a condition that involves compliance.

30. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

31. The Tribunal has significant concerns regarding the visa applicant’s migration history, as well as that of the review applicant. As discussed with the review applicant, given that both he and later his brother attempted to change their immigration status and acquire permanent visas while visiting Australia, the Tribunal cannot rule out that, upon entering Australia on a Visitor visa, the visa applicant may again seek to apply for a permanent visa or remain in Australia for a prolonged period, especially in light of the dire economic and political circumstances now prevailing in Lebanon.

32. The review applicant has submitted that the visa applicant was young and single at the time he overstayed his visa but is now married with two children and as a well settled Lebanese businessman, who has travelled to various countries, he has every intention of honouring his visa conditions if granted a Visitor visa to Australia. 

33. The Tribunal accepts that having his wife and children in Lebanon would provide some incentive for the visa applicant to return there after his visit.

34. The Tribunal accepts that the visa applicant has run various businesses in Lebanon, including most recently as a [Occupation 1]. However, even prior to COVID19 and the political upheavals following the massive explosion at Beirut port in early August 2020[1], confidence in Lebanon’s banking system foundered, businesses closed or cut back production and workers' hours and tens of thousands were left jobless. The visa applicant told the Tribunal at hearing that, due to the economic downturn, he has been unable to pursue [Business 1] work since 2017 as his customers could not borrow money. Moreover, although the visa applicant has savings of US$350,000 in the bank, he and the review applicant told the Tribunal that he is unable to withdraw it due to restrictions imposed by the bank. This accords with country information that people are unable to withdraw money at will[2]. In light of this, the Tribunal does not consider that the visa applicant’s business represents an incentive for him to return to Lebanon.

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35. In support of the visa applicant’s intention to return to Lebanon at the end of his visit, the review applicant also pointed to the fact that his brother had visited [Country 2] with his family on holidays but did not seek to stay there despite having a five-year [Country 2] visa. However, the Tribunal notes that the visa applicant has not previously lived in [Country 2] and does not have family support there. By contrast, the visa applicant has his brother and his family in Australia. From his previous three year stay, he is also familiar with the country, which he said he missed, and has demonstrated his ability to find employment here.

36. The Tribunal has considered the review applicant’s explanation that his brother, like himself some years earlier, had no knowledge that his solicitor applied for a Protection visa for him, only that he undertook to get him a permanent visa. However, this does not negate the fact that the application was made because the visa applicant wished to remain in Australia permanently and, by his evidence, paid the solicitor for the service.

37. In the Tribunal’s view, the review applicant’s comments that his brother and he just signed whatever was written in their Protection visa application forms, unaware of the details, reflects a cavalier attitude towards the visa process. It also suggests that the applicants were prepared to do whatever it took to achieve their desired outcome of a permanent visa for Australia.

38. The Tribunal takes a similar view of the review applicant’s suggestion that inconsistency between his brother’s failed Tourist Visitor visa application (in which he identified himself as a [Occupation 3] for the past 14 years) and his current Sponsored Family Visitor visa application form lodged 3 months later (in which he stated he had been a [Occupation 1] for the past 4 years) arose because he did not fill in his own forms and did not know what he was signing. Importantly, as put to the review applicant at hearing, both he and his brother signed declarations that the information they provided in their application forms was true and correct in every respect. 

39. The Tribunal is also concerned that the review applicant has been loose with the truth in submitting a statutory declaration affirming that he has the financial means to provide any necessary assistance to ensure that his brother had adequate funds for personal support (paragraph 5), yet at hearing said he had been unemployed since 2012 and had no savings (paragraph 14.b and 14.c).  Similarly, the review applicant’s proposition to the Tribunal that the visa applicant be asked to provide his total savings of US$350,000 as a bond is undermined by his evidence that the visa applicant is unable to withdraw his funds at will.

40. Having regard to the visa applicant’s non-compliance with the conditions of the last substantive visa he held, his migration history and other issues outlined above, although there are some incentives for the visa applicant to return to Lebanon, on balance the Tribunal is not satisfied that he 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 are not met.

41. 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

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

    Mara Moustafine