Al Kuntar (Migration)

[2024] AATA 754

Al Kuntar (Migration) [2024] AATA 754 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Al Kuntar

VISA APPLICANT:  Mr Ezzeddin El Kintar

CASE NUMBER:  2300065

HOME AFFAIRS REFERENCE(S):          BCC2022/4101273

MEMBER:David Crawshay

DATE:2 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 02 April 2024 at 9:53am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting family – genuine temporary entrant and compliance with conditions – access to sufficient funds – source and amount – no explanation for considerable increase in claimed savings between visa application and review hearing – work, wife and young children – previous compliant travel by other family members – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Schedule 8, conditions 8101, 8531

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 Home Affairs on 26 October 2022 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 30 September 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 visa 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 (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 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Ezzeddin El Kintar. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by him was subject; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting family. At hearing, the visa applicant told it that he wished to be present for the last two weeks of Ramadan and to celebrate Eid, as well as watch the Australia-Lebanon World Cup qualifying match. Visiting family is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. 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)). The visa applicant has not held any visa to travel to Australia – substantive or otherwise – and this aspect is given no weight either way.

10. 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 three 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.

11. In terms of condition 8101 relating to “no work”, the Tribunal has considered whether the visa applicant will be financially supported during his stay either by himself or through another person (likely the review applicant). If he is not, then it might be reasonable to conclude that he would need to work during the period of any visitor visa granted to him. It firstly notes that he claimed in his application form that his stay in Australia will be self-funded, and there has been no suggestion that the review applicant will cover his costs.

12. At hearing, the visa applicant claimed to have between USD10,000 and USD11,000 in cash. However, in a document dated 22 August 2022 provided at the Department stage (an undertaking signed in front of a notary), he claimed to have USD6,300 in cash. When asked why it had increased by more than double within a year,[1] the visa applicant said that money will not become less but will increase. The Tribunal has considered this explanation but gives it little weight as it considers that it does not give an adequate insight into his pattern of saving over an 18-month period in which his cash reserves increased by between 58 per cent and 74 per cent. This is especially so he has not identified any source of income other than his stated job. As to the letter signed in front of the notary attesting to USD6,300, there is no information to show that the notary signed this letter after having confirmed the amount of money, and the letter appears to be in the manner of a declaration with the notary acting as witness and nothing more. It is given little weight as a result.

    [1] The Tribunal accepts that the period is closer to 18 months.

13. A statement from an NAB bank account for a period ending 10 September 2022 was submitted at the Department stage. While the Tribunal could discern no name for the account, it accepts based on the transactions that it belongs to the review applicant and is likely used as a business account by him or at least is used for business purposes among other things. It accepts that the amount of money in the account is sufficient to cover the costs of the visa applicant’s proposed stay of one month based on him staying with the review applicant. However, the statement is one-and-a-half years old and is therefore not representative of the review applicant’s current financial position. It is given very little weight.

14. The Tribunal has considered the information in front of it. Based on the lack of probative evidence about the amount and source of funds for the visa applicant’s stay in Australia, it is not satisfied that he has sufficient funds. Therefore, the Tribunal does not accept that the visa applicant will abstain from working while here. It is not satisfied that the visa applicant intends to comply with the “no work” condition of any visitor visa granted to him. This aspect is given substantial weight of an adverse nature.

15. In terms of condition 8201 relating to no study of training for more than three months, the Tribunal is satisfied that the visa applicant will comply with this condition based on his profile. This aspect is given some weight.

16. Condition 8503 is an entitlement and is not able to be complied with.

17. Condition 8531 is considered below.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has considered the visa applicant’s employment circumstances. In this regard, it has considered a letter from a medical centre in Akkar fated 20 February 2024 stating that the visa applicant is employed at that centre as head of security and receives USD945-per-month. It accepts this evidence and finds that he is employed as claimed. It gives weight to this aspect as representing an incentive for the visa applicant to return to Lebanon.

19. The Tribunal has considered the visa applicant’s financial circumstances. At hearing, the review applicant told it that the visa applicant keeps his money at home, and the visa applicant told it that he has between USD10,000 and USD11,000. As above, the Tribunal has concerns about how the visa applicant would be able to increase the sum of money he had in his possession by a considerable amount within the space of 18 months and was not satisfied overall that he had sufficient money to fund his stay in Australia. For the same reasons, it is not satisfied that the visa applicant has sufficient funds to act as an incentive for him to return to Lebanon within the validity of any visitor visa granted to him. This aspect is given very little weight by the Tribunal.

20. The Tribunal has considered claims made by the review applicant about other members of his family who visited Australia and returned to Lebanon – namely, his mother and a brother who was single at the time of travel. Accepting for present purposes that this is true (and there is no reason to consider that it would not be true), the current review is concerned with the visa applicant’s subjective intention and not with the imputed intentions of other family members based on compliance with past visas. This aspect is given minimal weight.

21. The Tribunal has lastly considered the visa applicant’s family situation. It accepts based on the application form and the parties’ consistent testimony at hearing that he has a wife and two children who are both under 10 years of age. It finds that this family would provide some incentive for him to return to Lebanon within the validity of any visitor visa granted to him. This aspect is given weight.

22. The Tribunal has considered the information in front of it and balanced it against itself when assessing whether the visa applicant genuinely intends to stay temporarily for the purpose for which the visa is granted. While it accepts that there are some circumstances that would act as an incentive for him to return to Lebanon, such as the presence of family and his job, it is not satisfied that he will comply with condition 8101 while here based on a lack of probative evidence showing that he has sufficient money to fund his travel.

23. 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. It finds that the requirements of cl.600.211 are not met.

    DECISION

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

    David Crawshay
    Member