Ali (Migration)

[2018] AATA 4915

Ali (Migration) [2018] AATA 4915 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zakaria Ali

VISA APPLICANT:  Mr Ali Nadim

CASE NUMBER:  1715152

HOME AFFAIRS REFERENCE(S):           BCC2017/1984986

MEMBER:Mary Urquhart

DATE:23 October 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 October 2018 at 4:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant –family’s immigration history – previous visitor visa refused – seven children in Australia –sons operate business in Australia – incentives to return – business interests – wife and children in Australia – family able to manage applicant’s business – decision under review affirmed

LEGISLATION
Marriage Act 1961 (Cth) s 65
Migration Regulations 1994 (Cth) Schedule 2 cls 600.211, 600.231, 600.612

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 4 July 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 applied for the visa on 2 June 2017. 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 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because s/he was not satisfied that the visa applicant genuinely intended only a temporary stay in Australia.

5. The review applicant Mr Zakaria Ali appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ali Nadim, the visa applicant by telephone from Lebanon. 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 registered migration agent. Prior to the hearing the Tribunal received a detailed submission dated 10 October 2018.  The Tribunal was also provided with a further letter from the visa applicant’s employer, referring to the grant of 3-6 months leave from his job; other documentation and submissions included a letter from the applicant’s daughter Hajar, aged 21, indicating the visa applicant pays her educational expenses; some Westpac bank Statements of the review applicant, video evidence, a letter from the Muslim Women’s Council of Victoria and a Tourism in Lebanon document. The Tribunal has considered the submissions and further documentation.

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

   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 sates in his application that he seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Cl.600.211(a).

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose of the visa, 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)).

11. The visa applicant has not previously travelled to Australia. Evidence was given that he had travelled to Saudi Arabia and Kuwait a long time ago. No details of this travel were given. Given the applicant has not travelled to Australia cl.600.211(a) is not applicable.

12. The Tribunal notes the applicant has previously been refused a visitor visa in 2016. It was submitted that the Tribunal should give credit to the applicant as his wife visited Australia and returned to Lebanon within her visa period. The Tribunal takes this into consideration but notes the applicant’s wife visited some time ago in 1999/2000. 

    Cl.600.211(b).

13. 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.

14. As indicated in his visa application, the visa applicant Mr Ali Nadim is a Lebanese national, born 7 June 1955. He lives in the village of Ayn El Zahab (formerly known as Denbo) in North Lebanon. He is married and has 12 children with his wife Badria Mustapha. Seven of the children live in Australia. He claims in his application to be employed since 1994. He claims in his application under Employment details that he is the manager of the Silver Star Restaurant in Tripoli.

15. The review applicant Mr Zakaria Ali is a son of the visa applicant. He is aged 37. He gave evidence that he came to Australia in 2002 on an “engaged “visa. He married here in August 2002. He gave evidence that he owns and operates a Bin Hire business. 

16. At the Tribunal hearing the review applicant gave evidence about the purpose of the visa applicant’s visit and his circumstances in Lebanon.

17. The review applicant gave evidence that he has a married son who, with his wife, is expecting the visa applicant’s first great grandchild in May 2019. The review applicant would like his father to be present for the birth and celebratory party at that time.

18. There is no information before the Tribunal suggesting that the visa applicant would engage in any study or training whilst in Australia. The Tribunal does not consider that the visa applicant is entitled to a substantive visa while remaining in Australia on a visitor visa, although he may be entitled to apply for a protection visa. The Tribunal is satisfied that condition 8201 would not be breached.

19. The Tribunal has carefully considered whether the visa applicant intends to comply with conditions 8101, 8503 and 8531. After careful consideration of all the evidence the Tribunal is not satisfied that the visa applicant intends a genuine visit in Australia. As explained at the hearing the Tribunal must inquire about all the circumstances and weigh up the incentives for the visa applicant to comply with a visa and the incentives for him not to comply. For example he may be tempted to remain and work for his son, which would be contrary to visa conditions.

20. The review applicant explained that his father only wishes to visit for 2-3 months however, they put 6 months into the application as it is easier to extend if his father wanted to stay longer than putting in less time. The applicant said he wanted only 2-3 months but his son wants him to stay longer. The evidence is that his father would take leave from his job as a Chef at a beachside restaurant in winter as it is quiet, then, return for the busier summer.

21. Condition 8201 requires that the visa applicant must not work in Australia. The Tribunal has considered whether the applicant’s claimed employment may be a sufficient inducement for his to return home after any visit. The applicant said he was born in 1955. He is therefore of working age at 52 or 53 years of age. The Tribunal notes a letter dated 18 May 2017 from Muslim Women’s’ Council of Victoria giving, inter alia, a personal guarantee the applicant will not engage in employment. The Tribunal has considered this but affords it little weight. The Tribunal also notes the review applicant’s evidence that in his Bin Hire business he employs some 18 people 8 of whom are family. The Tribunal has a concern that the applicant may be tempted to also work for his son, sending money home and easing his claimed heavy load of work. In relation to this it was submitted that the applicant would not have the necessary skills to work for the review applicant. The Tribunal disagrees. This is because of the obvious variety of skills required to cover all the work he claims to do in Lebanon.

22. The applicant says he works as a Chef and kitchen manager at a restaurant in Tripoli and that he has worked there since 1993/94 a period of some 25 years. He has provided two brief letters from his employer. The second one refers to leave and grants him 3-6 months leave on the basis he returns. The letter does not indicate why he is essential to the business. The evidence is that he will be away in winter. Winter starts in mid-November. The Tribunal has considered this evidence. The Tribunal notes the applicant wishes to be present for the birth of a great grand-child said to be expected in May 2019. The 3-6 months leave does not mention the seasons.

23. The two letters from his claimed employer and oral evidence at the hearing is all that the Tribunal has available to it to assess the applicant’s employment as a Chef and the strength of that employment as and incentive for the applicant to return at the end of any visit. The Tribunal finds the evidence that the applicant worked as a Chef for 25 years not strong and it follows, not a strong incentive for the applicant to return.

24. As well as working as a Chef the applicant claims he earns money driving some 5-6 workers from his village of Ayn El Zahab to Tripoli and back each day. Further work involves the applicant collecting items for sale in Tripoli for his wife’s supermarket in their village. He collects goods in the morning bringing them back at night. These matters were raised to indicate the need of the applicant to return home.

25. It was submitted on the applicant’s behalf that he owns some four plots of land which he uses for a variety of purposes including obtaining water, growing olives, grapes, figs and vegetables.

26. The review applicant’s evidence is that the applicant’s two sons in Lebanon his sons Mohammed and Ahmed Ali and their families assist the visa applicant with the supermarket and the land. The Tribunal takes into consideration that the visa applicant has one young unmarried daughter Hajar Nadim living at home and that she is studying at TAFE in their home village Ayn El Zahab. The Tribunal accepts and that the applicant provides for her education expenses. There is no evidence to indicate that Hajar’s fees would not be paid if the applicant did not return home.

27. Evidence was given that the produce grown on the plots of land is for the family however any surplus is sold. Evidence was given that the water extraction business from the land is seasonal. In response to questioning the review applicant said that his two brothers in Lebanon assist in the supermarket. The evidence is that the applicant’s son Mohammed, who lives downstairs at the applicant’s house, helps out in particular. The evidence is that he will drive the workers to Tripoli and help with the supermarket. The review applicant said he would pay Mohammed to do this whilst his father visits Australia.

28. Apart from the visa applicant’s work as a Chef it would appear from the evidence that the applicant’s adult children already assist the applicant in his enterprises finding water on his land plots, growing produce and in the supermarket. The Tribunal is unable to be satisfied that the many claimed business and financial ties are sufficient inducements for the applicant to return at the end of any visit as family are clearly able to carry on the work.

29. In terms of assets the evidence given at the hearing is that the applicant owns his double story home and the supermarket in his village. The Tribunal notes a letter obtained from the Mayor of the village in which the visa applicant lives, (Ayn El Zahab) confirms his residence. The Tribunal accepts the applicant may own his house and plots of land. However, such assets are transferrable and for this reason the Tribunal gives them little weight as inducements for the applicant to return.  

30. In terms of family, the applicant’s 12 children are all adults.  The evidence is that 7 of the applicant’s adult children live in Australia. There are 5 children remaining in Lebanon.

31. Asked about the visas which have enabled himself and his six other siblings in Australia to come here the review applicant replied in vague terms. Having said he came “engaged” he said his sister Boushra arrived most recently, about 4 months ago on a spouse visa; his brother Abdelrahman came before her, “maybe a year ago” he said. When questioned about the visa he arrived on the review applicant said his other brother Abed Ali, who lives here, brought Abdelrahman over on a visitor visa and he got engaged to a girl here and married. Asked when that was the review applicant replied “maybe last year” adding he could not remember. The Tribunal would have liked more details about this family member.

32. The review applicant gave evidence that he had brought his sisters Ashwak and Sarwat to Australia on visitor visas. He said Ashwak had been refused but he came to the Tribunal and obtained a visa for her. Both met future husbands in Australia. He said they both returned home to Lebanon within the visa period. He said Sarwat then came to Australia married in 2011 and that Ashwak returned to Australia engaged in 2015. The review applicant said his sister Fairouz came on a spouse visa in 1992.

33. The Tribunal noting a pattern of many family members moving to Australia asked the review if that was the case. He agreed that many of his siblings had come to live in Australia in recent years. Asked if any of the children of the applicant had returned to visit Lebanon since coming to Australia, he replied they had not. The Tribunal has significant concerns that the movement of family members from Lebanon to Australia may tempt those still at home to find ways to follow including the visa applicant.

34. The review applicant said he would ensure his father returned to Lebanon before the expiry of any visitor visa that may be granted. He said he is prepared to pay a Bond in the sum of “$100,000” to guarantee his father’s return. The Tribunal finds his offer concerning.  The Tribunal finds it has a ring of exaggeration about it. As well the Tribunal notes and takes into consideration the evidence that the review applicant does not wish to jeopardize any future visitor visa applications to have other members of their large extended family visit from time to time. However, with many members of the family having the option to sponsor, the Tribunal has concerns that any such determent may not be so great. 

35. The review applicant gave evidence that his mother, two brothers, Mohammad Ali and Ahmed Ali and his sisters Hajar Ali, Suzan Ali and Fatma Ali remain in Lebanon and that they represent strong family ties to ensure the applicant returns home. The evidence is that the applicant and his wife have a long marriage and have had 13 children together. They sadly lost one child. It was submitted that they provide significant emotional support to each other. On the basis of the evidence of a close knit and large family the Tribunal accepts this submission. The Tribunal finds the presence of the applicant’s wife in Lebanon a significant factor for consideration.

36. The evidence is that the applicant’s wife works. She runs the supermarket with help from her sons. All the children are adults. The only adult child who appears dependent is Hajar. The Tribunal finds no evidence to indicate the applicant would need to be in Lebanon to take care of her education expenses. She lives with her mother. Her married brother and his wife live downstairs in the home. The Tribunal gives little weight to the claim that her father is responsible for her education as indicative of a strong reason for him to return home.

37. Whilst family at home would usually represent an inducement to return, particularly a spouse, the Tribunal formed the view that the review applicant and his family including grandchildren and expected great grandchildren and the many other children of the applicant and their families in Australia (7 adult children) may provide a strong incentive for the applicant to remain and to develop immigration pathways for the family at home to come to Australia.

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

39. In regard to the political and security situation in Tripoli it was submitted the last security incidents there were in 2015-2016. It was submitted that despite this and the downturn in the economy in Lebanon, the visa applicant has maintained stable employment and holding his restaurant position since 1993-94. It was further submitted that as well the applicant has maintained his responsibilities for the management of his plots of land and that his employment and assets are indicative of strong inducements to return home after any visit allowed. The Tribunal has referred to these matters above.

40. The Tribunal has had regard for current country information about the economic and social conditions in Lebanon and questioned the applicant and review applicant about conditions. Evidence was given by the review applicant that there has been conflict in Tripoli, however both the review applicant and the applicant claim their village is safe and conditions are good. The Tribunal has had regard to the evidence and submissions that the visa applicant is not personally affected by the unrest in Northern Lebanon however, the information before the Tribunal indicates that the situation in Lebanon is volatile and could deteriorate. The Tribunal is of the view that the circumstances in Lebanon, may, encourage the visa applicant to remain in Australia beyond the proposed period of his permitted stay and settle here as so many members of his family have done.

41. In determining whether the applicant genuinely intends to stay temporarily in Australia, the Tribunal has carefully considered all the evidence before it.  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.

42. For the above reasons the Tribunal finds that the requirements of cl.600.211 are not met.

    DECISION

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

    Mary Urquhart
    Member