2300325 (Migration)

[2023] AATA 4095

2300325 (Migration) [2023] AATA 4095 (15 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2300325

MEMBER:Tania Flood

DATE:15 November 2023

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 15 November 2023 at 2:23pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting relatives – genuine temporary entrant and compliance with conditions – previous compliant travel to Australia and third country – family, work and property – economic, political and security situation – consistent and credible oral evidence – no financial evidence provided as applicant unwilling to use banking system – some inconsistent evidence about employment clarified by documentation provided after hearing – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, condition 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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 January 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 21 December 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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 (Cth) (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 14 November to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas and the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   MIGRATION HISTORY

7. Departmental records indicate that the visa applicant was granted a Sponsored Family Visitor visa on 4 August 2008 and previously travelled to Australia [in] August 2008.

8. The applicant applied for a further Visitor visa on 21 December 2022. This application was refused by the Department on 5 January 2023. The applicant applied for review of the decision on 10 January 2023. 

   Applicant’s background

9. The applicant was born in [Village], Lebanon on [Date]. He is married and together the parties have two sons and a daughter, aged [Ages]. His wife and children reside in Lebanon and are not listed on the Visitor visa application. The applicant’s parents have both passed away.

10. The applicant has worked as [an Occupation 1] at [Employer 1] since early 2017.

11. The applicant sought to visit Australia for up to three months from 10 January to 10 April 2023 to see his family and attend his nephew’s engagement on 10 January 2023. His nephew will be married on 25 November 2023.

12. The applicant’s brother, the review applicant, resides in Australia and will financially support his visit to Australia.

    Evidence submitted to the Department

13. The applicant submitted the following evidence to the Department.

    a.A copy of the visa applicant’s Family Statement Registration dated 8 December 2022, with English translation. This document listed the applicant, his wife, and their three children.

    b.A copy of the visa applicant’s Registration Statement for Individuals dated 7 March 2018, with English translation.

    c.A copy of the visa applicant’s Familial Civil Status Record dated 31 March 2017, with English translation. This document lists the visa applicant and review applicant, along with their parents.

    d.A copy of the review applicant’s Australian passport issued [in] 2022.

    e.A copy of [Mr A]’s [Bank 1] statement dated 21 September 2022 to 22 November 2022.

    f.A letter from the review applicant dated 16 December 2022. In this letter, the review applicant confirmed that he intended to invite his brother, the visa applicant, to stay in Australia to attend his son’s engagement on 14 January 2023. That the visa applicant previously visited in 2008 without any visa troubles. He claimed that the visa applicant is his only remaining family.  He stated his intention to accommodate and support the visa applicant during his stay.

    g.A copy of [Mr A]’s, the review applicant’s son, Australian passport issued [2022].

    h.A copy of [the applicant]’s Lebanese Republic Title Deed dated 20 February 2016, with English translation. This listed two properties.

    i.A letter from the visa applicant’s employer to certify that he continues to provide his engineering services to the company, dated 13 December 2022.

    j.A copy of the visa applicant’s Lebanese passport issued [in] 2007. This passport contains an Australian Immigration stamp dated [August] 2008. It also contains an Australian visitor visa granted on 4 August 2008.

    k.A portrait photograph of the visa applicant.

    l.A copy of the visa applicant’s Lebanese passport issued [in] 2022.

    The delegate’s decision

14. The delegate noted that although the purpose of the three-month visa was listed in the applicant’s application, this does not in itself demonstrate that the applicant will abide by the conditions of the visa.

15. The delegate compared the visa applicant’s personal financial, employment position, along with his personal ties to Australia, with the economic, political and security situation in Lebanon. The delegate was not satisfied that the applicant had provided sufficient evidence to demonstrate his incentive to abide by the conditions of a Visitor visa.

16. The delegate was not satisfied that the applicant had provided sufficient evidence to demonstrate that he is employed. The delegate acknowledged that the review applicant had provided a bank statement. It was noted that the visa applicant had provided evidence of assets but noted that this alone did not provide sufficient evidence of the visa applicant’s financial standing.

17. As such, the delegate was not satisfied that the applicant met the requirements of clause 600.211 in Schedule 2 of the Migrations Regulations.

    Evidence submitted to the Tribunal

18. The applicant submitted the following evidence to the Tribunal.

    a.An undated letter from the review applicant in which he claimed that the visa applicant will return to Lebanon after the duration of the Visitor visa for the following reasons:

    ·He works fulltime in Lebanon.

    ·His wife and three children are not listed on the visa application.

    ·He previously visited the review applicant in Australia in August 2008, and there were no issued with his visa compliance.

    ·He owns a house, investment property and shop in Lebanon.

    b.A copy of [Mr A]’s, the visa applicant’s nephew, engagement invite for 11 February 2023.

    c.A copy of [the applicant]’s Lebanese Republic Title Deed dated 20 February 2016, with English translation. This document listed two properties.

    d.A copy of the visa applicant’s Lebanese passport issued [in] 2007. This passport contains an Australian Immigration stamp dated [August] 2008. It also contains an Australian visitor visa granted on 4 August 2008.

    e.A copy of the visa applicant’s Family Statement Registration dated 8 December 2022, with English translation. This document listed the applicant, his wife, and their three children.

    f.A letter from the visa applicant’s employer to certify that he continues to provide his [services] to the company, dated 13 December 2022.

    g.A copy of the Departmental decision record dated 5 January 2023.

    h.A copy of the review applicant’s Centrelink Statement dated 14 January 2023. This document listed that the review applicant has received the Disability Support Pension, Energy Supplement and Pension Supplement since 28 July 2009. It also notes that he received a Lump Sum Advance Payment. A total of $2,095 worth of assets had been listed since 28 July 2009.

    i.A copy of [the review applicant’s wife]’s Centrelink Statement dated 14 January 2023. This document notes that she has received Family Tax Benefit and Energy Supplement since 1 July 2000. She had received Carer Payment, Energy Supplement, Pension Supplement and Carer Allowance each fortnight since 30 July 2009.

    j.A copy of the review applicant’s [Bank 1] account statement from 12 May 2022 to 11 November 2022. The document states that the review applicant sent substantial payments to his son, [Mr A], every few days.

    k.A copy of the review applicant and his wife’s combined [Bank 2] Account Statement from 1 August 2022 to 10 December 2022.

    l.A fee reduction request to the Tribunal dated 14 January 2023.

    m.An email from the visa applicant’s nephew, [Mr A] dated 21 September 2023. In this email, [Mr A] requested that his uncle’s case be prioritised as his wedding was on 25 November 2023.

    n.A copy of the visa applicant’s nephew’s wedding invitation for 25 November 2023.

    Tribunal hearing

19. The review and visa applicants provided credible and consistent oral evidence to the Tribunal in a hearing held on 14 November 2023.  Their testimony is summarised as follows:

20. The review applicant married his Australian citizen wife in [Year] and entered Australia on a prospective marriage visa in [Year].  He has since become an Australian citizen. 

21. The review applicant and his wife remain married and have three children who all live with them in the home they own.  Their eldest son is to be married in December 2023.  The review applicant has an injury and now receives a disability pension.  His wife does not work.  His eldest son works as [an Occupation 2], his middle daughter is at University and works part-time and the youngest boy is in school.    His two eldest children sometimes provide he and his wife with financial assistance if required.

22. Regarding the transfer of funds between the review applicant and his son it was explained that sometimes their son advances them money to pay expenses and when the disability pension is paid they repay that money.  The review applicant’s wife explained that she receives government support for her youngest son and she transfer spending money to him.

23. The review applicant has no family in Australia and only one remaining relative in Lebanon, that being his brother, the visa applicant.  He previously sponsored his brother to visit him in Australia in 2008.  The visa applicant made no further applications for a Visitor visa until December 2022. 

24. The visa applicant travelled to [Country] in 2018 for 10 days with his wife for tourism.  He has not applied for a visa to any other country.

25. The visa applicant lives in central Lebanon in [Village].  He is married and has three children.  They live in their own home which he inherited from his father.  Beneath their home is an apartment which is rented.  He owns a further apartment and a shop which are also rented.  The residential properties were inherited from his father but her purchased the shop with his own money.  He earns $325USD per month from the rental of his properties.

26. The visa applicant has worked as [an Occupation 3] for 13 years and also operates his own [business].  He earns roughly $1300USD per month from the combination of these activities.   He stated that he is able to manage financially with this salary and the money he earns from his rental properties.

27. Regarding the letter of employment provided in submissions the review applicant stated that this employer is a relative of the visa applicant and he helps him out from time to time with administrative functions.  The visa applicant indicated that he ceased doing any work for this employer in about February or March 2023 as he no longer the time to do so.

28. The visa applicant old son is [an Occupation 4] in [Employer].  The middle child is attending University and the youngest is still in school.   His wife does not work.

29. The visa applicant stated that while his parents and other close relatives in Lebanon are deceased his wife’s family live nearby and he considers them his family and enjoys a close relationship with them.

30. The review and visa applicants did not specify the length of the proposed visit but they indicated the visa applicant wants to attend his godsons wedding and if possible to remain with the family to celebrate Christmas. 

31. The visa applicant stated that the [employer] he drives for has a spare [Occupation 3] to cover absences and he has been training somebody to handle his [business] while he is away. 

32. The visa applicant stated that his intention is to spend time with his brother and his family and he has no intention of working or studying in the short time he would be in Australia.

33. The visa applicant stated he has savings of $6800USD to pay for his travel to Australia and expenses incurred during his stay.  The review applicant indicated that he doesn’t have a lot of money but that his son is working and can assist to cover any unforeseen expenses the visa applicant might incur.

34. The visa applicant is a Maronite Christian.  He said that his village is predominantly Maronite and he has never experienced problems from members of other faiths in Lebanon. 

35. Regarding the economic and political crisis which Lebanon currently faces the review applicant stated that his brother does not have a mortgage or rent to pay and he has two jobs and the income earned from rent to sustain himself.  The visa applicant stated that his [business] continues uninterrupted and always will as [product] is an essential commodity.  He said his village is a safe and stable place to live and their life has not been overly impacted by the crisis.  He stated however, that any money he earns is received in cash and he does not keep any of his savings in the bank as the banking system is in ruins.  He added that he does not involve himself in political activities and hence avoids problems.

36. The visa applicant stated that he will not remain in Australia when his visa ceases.  He said he will want to return to Lebanon to be with his wife and children, two of whom are still studying and need his support.

    Information received after the hearing

37. A letter dated 14 November 2023 from [Mr B], [Job title of Employer 3], stating that the visa applicant has been working for them as [an Occupation 3] since 10 January 2011 and remains in the position. 

38. Copies of passport pages showing a Schengen visa issued in 2018 and his previous Visitor visa to Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

39. 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.

40. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

41. 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)).

42. Departmental records indicate that the visa applicant previously held a Visitor visa in August 2008 and that the conditions of this visa were complied with.

43. 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)).

    ·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.

44. The Tribunal found the review and visa applicants to be credible witnesses.  The Tribunal accepts the visa applicant is married and has three children.  The Tribunal accepts the visa applicant and his family live in a home which the visa applicant inherited from his father.  The Tribunal also accepts on the documentation submitted that the visa applicant owns two apartments and a shop which he rents.  The Tribunal was initially concerned that the evidence in respect of the visa applicant’s employment was inconsistent or at best overstated when little mention was made by either of the applicants about the employment outlined in submissions.  At the hearing it became apparent that the employer was a family relative and that the visa applicant occasionally assisted the employer on top of his other employment pursuits.   He explained that he stopped performing any work for that company in early 2023 as he was busy with his other pursuits.  The Tribunal found the visa applicant’s  testimony in respect of his employment credible and notes it is supported in part by the documentation provided post hearing.  The Tribunal is satisfied the visa applicant is employed as [an Occupation 3] and also operates his own [business]. 

45. Based on the credible oral evidence presented at hearing, the Tribunal is satisfied that the visa applicant is planning a short visit to Australia to attend his nephews wedding on 25 November 2023 and to spend Christmas with his brother and his family.  The review applicant does not work due to injury and his son works as [an Occupation 4], a field in which the visa applicant has no experience.  The Tribunal considers it unlikely the review applicant or members of his family could assist him to find work in the short space of time he intends to spend in Australia or that he could or would want to do so himself.  The visa applicant indicated he has savings to pay for his own travel to Australia but was unable to provide any proof of this due to his unwillingness to rely on the banking system in Lebanon.  The Tribunal found his testimony credible in the face of the economic crisis besetting Lebanon and despite the lack of verifiable evidence accepts these savings are available.  The Tribunal is satisfied the visa applicant has savings available to fund his travel to Australia and that family support will be available to him should he require any assistance.  There is no indication that the visa applicant is intending to engage in study or training during the short time he plans to spend in Australia.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

46. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

1. The Tribunal acknowledges that Lebanon is suffering through a severe economic and political crisis and that those conditions could arguably induce the visa applicant to remain in Australia.  However, the evidence before the Tribunal indicates that the visa applicant owns his own home and other residential and commercial properties.  While his employment income is arguably modest it nevertheless appears on the available evidence to be stable and he supplements his earnings with rental income earned from his properties.  The Tribunal accepts he is mortgage and debt free and able to provide for himself and his family from his available income streams.  Despite the prevailing economic difficulties in Lebanon the Tribunal is persuaded that the applicant’s economic circumstances will not cause him to remain in Australia. 

2. In forming the above opinion the Tribunal also notes that the visa applicant’s wife and three children will be remaining in Lebanon for the duration of his proposed visit to Australia.  All three of the children live at home and two of them are still being supported to complete their university and school education.  The Tribunal acknowledges the close connection between the applicants, particularly given they have no other remaining close relatives.  However, the Tribunal considers the visa applicant’s family ties in Lebanon are significant and will provide a strong incentive for him to return home after visiting Australia.

3. The Tribunal also notes the visa applicant has provided proof of travel to Italy in recent years and that he returned to Lebanon after a short stay abroad.  The Tribunal also notes and has placed weight on the fact he has previously travelled to Australia on a Visitor visa and complied with the conditions of that visa.  According to the available evidence his circumstances now are not dissimilar to those that prevailed at the time of his earlier visit and the Tribunal can see no reason why he will behave differently should he be granted a second Visitor visa. 

4. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

5. 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

6. 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.

   Tania Flood
   Member