Al-Sayed (Migration)

[2021] AATA 3860

Al-Sayed (Migration) [2021] AATA 3860 (7 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohamad Al-Sayed (RA)
Mr Ouday Al- Sayad (VA)

CASE NUMBER:  1933741

HOME AFFAIRS REFERENCE(S):          BCC2019/5235632

MEMBER:Mark Bishop

DATE:7 October 2021

PLACE OF DECISION:  Melbourne

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 07 October 2021 at 3:56pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – one sibling in Australia, parents and other siblings in home country – care for ill mother – family’s house and land and applicant’s self-employment in small village – no previous travel to any country – length of requested stay inconsistent with purpose of visit – political, economic and social conditions – intention to comply with conditions – travel funded by review applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 21 November 2019 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 18 October 2019. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl 600.211.

5. The Review Applicant (RA) appeared before the Tribunal on 7 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the Visa Applicant (VA). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review by his Migration Agent (MA). The MA did not appear at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia.

10. 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 Tribunal notes the VA has not travelled outside Lebanon and not been granted a visa to visit Australia or any other country in the past.

11. 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.

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

13. The delegate made the following findings:

    ·“I have noted that the applicant has declared the presence of family members that will remain in Lebanon during their proposed visit to Australia, namely his parents and siblings. While I acknowledge that these family members may offer some inducement to return to Lebanon, I am not satisfied that their presence sufficiently demonstrates that the applicant intends a genuine temporary stay in Australia.

    ·The applicant did not declare that he is employed. Given that the applicant has provided no evidence of ongoing employment I cannot consider employment as an inducement for the applicant to return to their country of residence.

    ·The applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in Australia or other countries. I therefore place no weight on previous international travel as evidence that the applicant will comply with his visa conditions and depart Australia within the validity of his visa.

    ·In assessing the applicant’s intentions for their intended visit to Australia, I have taken both the applicant’s personal circumstances and duration of the applicant’s intended travel into account. Whilst I have noted the applicant’s reason for travel I find that the length of stay requested is inconsistent with the purpose of visit. I therefore have concerns that the applicant may intend to travel to Australia for reasons other than a genuine visit.

    ·I accept that under normal circumstances, the applicant’s family and employment links in the applicant’s home country may constitute an incentive to return there after a visit to Australia. However, the prevailing political, security and economic conditions in Lebanon constitute a very strong disincentive to return there. Additionally, the applicant’s family links in Australia constitute a very strong incentive to remain here. On balance, I believe that the applicant has more incentives to remain in Australia than to return to their home country. Individually, these factors may not appear significant. However, on balance, I find that the combination of these factors leads me to the conclusion that the applicant’s expressed intention to visit Australia temporarily is not genuine.

    ·The applicant has provided a copy of deposit certificate from the bank as evidence of funds. The applicant has not provided any information of his employment, nor has the applicant provided any regular income and transaction history from the bank, the resource of the deposit is unclear. I have concerns the applicant may have difficulty funding a 3 months visit to Australia. Therefore I am not satisfied that the applicant is not motivated by other reasons rather than a genuine visit to Australia.

    ·I acknowledge that the purpose of the applicant’s intended travel is to visit their family. While the applicant’s purpose of visit is noted, this in itself does not demonstrate that the applicant only intends a genuine temporary stay.

    ·After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

    ·Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.”

14. The Tribunal notes the submissions of the RA address all of the matters considered in the delegate’s decision as outlined above in paragraph 13.

15. The applicant provided the following information to the Tribunal:

    ·Statement in the name of the RA Mr Mohammad Alsayed dated 9 December 2020 that outlined the following:

    oThe VA has not travelled to any other countries and planned this trip following the death of his father.

    oThe VA is the primary carer of his mother and looks after her. He is not married and needs to return to his country to look after his mother.

    oThe RA will fully fund the VA during his stay in Australia.

    oThe RA provided evidentiary material such as bank statements, detail of family status, family registration status, reasons for coming to Australia and evidence of self-employment statement of RA employment from AAA Construction and Painting Services P/L advising of full time employment at $1,900 per week, police disclosure statement and a statutory declaration dated 5 January 2020 addressing the above.

    ·Statement in the name of Mohammad Alsayed that advised as follows:

    oAll of his close relatives have arrived and resided in Australia for the last 10 years.

    oHe has not sponsored or invited any close relatives that have arrived in Australia for the last 10 years.

    oMr Ouday Al- Sayad (VA) lives in Lebanon, is self-employed as a hairdresser. He cannot provide bank statements due “to restrictions in money withdrawals”

    oMR Mohammad Alsayed ”will be responsible for the applicant’s financial costs during their visit to Australia which includes food, accommodation and any other related expenses”

    oMr Ouday Al- Sayad needs to return to Lebanon for family reasons, illness of his mother, employment matters and attachment for his country.

    oMr Ouday Al- Sayad has not applied for a visa to any other country. He has not travelled outside Lebanon. He provides for his widowed mother and siblings

    ·Statement in translation that advises Mr Ouday Al- Sayad is self-employed as a hairdresser in his own salon and own a house and a plot of land.

    ·Death certificate of Mr Machhour Al Sayed

16. In evidence the RA advised the Tribunal as follows:

    ·He arrived in Australia in May 2016 as the holder of a partner visa. He was now divorced from his wife and had not re-married. He now had PR. He was renting a house and earned a good wage as a painter. He had a lot of work.

    ·He had not returned to Lebanon since arriving in Australia.

    ·He was yet to work out ticket details with his brother. He advised his brother would bring $US5,000.

    ·He advised his brother was not under any political pressure or state security pressure in Lebanon.

17. In evidence the VA advised as follows:

    ·He was 21 years of age. He had 13 siblings 12 of whom resided in Lebanon.

    ·He lived in the small village (population 2000/3000) of AIN ALDAHAB.

    ·He was self-employed as a barber and enjoyed a good income. His family was comfortable off. His family lived well in Lebanon.

    ·His village was small and he did not have views on general economic matters.

    ·Whilst he was not yet married arrangements were being made for him to get engaged in late 2021 or 2022.

    ·He wished to visit Australia to see his brother.

    ·He had not travelled outside Lebanon.

18. The Tribunal has considered this evidence very carefully.  The Tribunal has paid particular attention to the detailed written submission and supporting documentation provided by the RA. The Tribunal has paid particular attention to the evidence of the VA that goes to GTE matters. The Tribunal notes the evidence of the RA and VA was largely similar. There were some minor discrepancies in the oral evidence of the RA (length of time in Australia, amount of currency VA would bring to Australia) and the written submission of the RA. The Tribunal does not make any adverse findings against the RA or the VA as to their evidence.

19. After careful consideration the detailed submissions and evidence provided by the RA going to GTE are sufficient to  outweigh the other factors including the recent significant deterioration of the economic, social, and security situation in Lebanon noted in the evidence as summarised above. The Tribunal notes the VA’s current circumstances including the fact he is self-employed in his own shop and looks after his mother in their home, has immediate family in his town and his family have other assets in the form of land and a house in his hometown. It is also noted by the Tribunal that the VA has limited family in Australia and this family has been resident in Australia for only 5 years and the RA has not sponsored or arranged for the visitation of family from Lebanon in the last 10 years. The Tribunal is persuaded these matters taken together are sufficient to confirm applicant's expressed intention to visit Australia temporarily is genuine. The Tribunal has considered the written submissions at length and reviewed the supporting documentation in detail. The Tribunal is satisfied that the VA will abide by the conditions subject to which a Visitor (class FA) (subclass 600) visa is granted and that the applicant will depart Australia at the end of the requested period of stay.

20. As stated, the Tribunal has also considered the recent country information reports from the Department of Foreign Affairs and Trade, and notes that the security, political, and economic situation in Lebanon at the present time is particularly bad. As noted above the RA and VA were aware of the suffering that was now occurring in the home country. However the RA has not returned to Lebanon since 2016 and the VAS felt unable to comment on general economic matters because his village was small and he had a good life in that village. As noted the Tribunal has considered this matter very carefully and finds that the situation back in the VA’s home country is quite poor. However in the circumstances of this case and the detailed evidence provided by the VA and RA the Tribunal is of the view that the VA does  genuinely intend to visit Australia temporarily for the purpose for which the visa is granted.

21. The Tribunal has considered all of the above information, the individual circumstances of the VA, the evidence of the RA, relevant country information relating to Lebanon and the lengthy submissions of the MA. The Tribunal gives these submission considerable weight.

22. 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

23. 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.

    Mark Bishop

    Member