Ali (Migration)

[2017] AATA 898

Ali (Migration) [2017] AATA 898 (15 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rachid Ali

VISA APPLICANT:  Mr Abdel Kader Ali

CASE NUMBER:  1704659

DIBP REFERENCE(S):  BCC2017/447326

MEMBER:Mary Urquhart

DATE:15 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 15 May 2017 at 12:35pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Sponsored Family stream – Genuine temporary entrant – No previous overseas travel – Inconsistencies with employment – No evidence of claimed girlfriend – Family ties not sufficient incentive to return – Security situation

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Part 600, cl 600.211, cl 600.231, cl 600.612, Condition 8201

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 27 February 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 Mr Abdel Kader Ali, a national of Lebanon born 9 September 1994, applied for the visa on 1 February 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 Mr Abdel Kader Ali did not meet cl.600.211 because he did not accept that Mr Ali would be a genuine visitor to Australia.

5. The review applicant Mr Rachid Ali appeared before the Tribunal on 11 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abdel Kader Ali by telephone from Lebanon.

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

   Hearing

7. The review applicant told the Tribunal he is aged 32 is married and has three children. He owns and operates a Real Estate Business.

8. The review applicant and his family are Sunni Muslims. The review applicant came to Australia in 2004 on a prospective spouse visa and married here in 2005.He has a brother and two sisters living in Australia. In Lebanon his parents live in Lebanon near Tripoli; he has a married sister in Akkar and a married sister in the USA. Three younger brothers, including the visa applicant, live with his parents. The youngest brothers are at school.

9. The review applicant said his father imports metal and runs a business which recycles the metal and on sells it to people to make windows and doors. The business is in Akkar. The review applicant said his father “has a driver” who takes him to the business in Akkar.

10. The review applicant gave evidence that the visa applicant is employed as a book keeper. He said he has a Certificate 111 in Accounting. In his position he does all the accounts for the company he works for which is Jamal Trading Pty Ltd. Asked who owned the business he replied that he thought it was owned by two brothers. He said the visa applicant had worked there for 3.5 years. He said they are not related to the owners. He said the visa applicant did a “short course” in accounting after he left school then went to work for the company he is still with. He said he had worked his way up.

11. Asked about his brother’s marital status he gave evidence that the visa applicant has a girlfriend. Asked her name, he replied that he did not know. Asked why he does not know her name, he replied it was because his brother “will not tell him”.

12. The review applicant gave evidence that his brother had not travelled before but his mother visited Australia in 2009.

13. Asked why his brother wishes to visit he said his brother wishes to see his nieces and nephews and Australia. He said that he wants his brother to have a short break as he has been working really hard.

14. Asked when it was he last saw his brother, the review applicant replied that it was in April last year. He said he took his wife and children with him. They stayed in Lebanon 3.5 weeks. In later evidence he corrected this saying he was recently at home in Lebanon for 2 days for a wedding. Movement records confirm the review applicant left Australia on 20 January 2017 returning on 26 January 2017. He claimed he could only stay away two days in January because he is so busy at work.

15. Movement records show the review departed Australia on 25 May 2016 returning 3 June 2016. Other information contained in the movement records indicates the review applicant departed Australia on 17 March 2017 returning on 15 April 2016.

16. Mr Rachid Ali gave evidence his brother earns 1 million Lebanese “pounds” a month which he calculated to be about $980 AUD a month. He said his brother has money but will be supported by him and will stay with him during the visit. Mr Rachid Ali gave evidence that he thinks his brother has a greater ability to earn a living in Lebanon rather than in Australia. He said that this was because in Lebanon he lives with his parents and can save.

17. The review applicant said the visa applicant has to take care of their father driving him to medical treatments. He said however, arrangements have been made for a van to pick their father up whilst the visa applicant is away. The Tribunal notes the evidence is consistent with the letter submitted by the review applicant where he states inter alia that the visa applicant is the only one who drives; he states the visa applicant is needed as he takes time off work to drive their father to doctors” and where he goes on to state that “the local doctor has promised my d that he will organize a patient transport van to pick up and drop off” his father if required whilst his brother is away.

18. The review applicant gave evidence that he and the visa applicant plan to visit tourist places in Melbourne and Sydney in the 4 weeks the visa applicant wishes to visit. He said he wants his brother to visit for Ramadan and to be with the family. He will book a return ticket for his brother and is willing to pay a Bond to ensure his brother returns home.

19. The Tribunal put country information to the review applicant indicating that Lebanon is experiencing security issues and civil disruption and asked about these issues. The review applicant said his family live “2-3 hours’ drive from the border”; he said his family have nothing to do with Akkar. He believes there are no security problems where his family live and described the area as being “like Brighton”.

20. The visa applicant said he was 22 years old. He said he works in a shop selling iron in Tripoli. He said the shop belongs to a friend of his father. He works there as an accountant. He said he is working on the computer system regulating the income and expenses of the business and the “payroll”. He said he went to University for a year and is still in the process of “obtaining qualifications”. Asked what business his father is in he replied “same industry importing iron”. Asked if he had ever worked for his father he replied “no”. He said this was because his father was suffering ailments.

21. The visa applicant gave evidence that his brother in law in Akkar looks after his father’s business. He said his father goes to the business once a month to collect the money. He gave evidence that he drives his father to Akkar. The Tribunal put to him other evidence given that his father had a “driver” who took him to Akkar. The visa applicant repeated that he was the driver.

22. The visa applicant said he would return home at the end of the visit as he lives at home with his parents and is the eldest boy at home; he looks after his father taking him to the doctor once a week though arrangements have been made for the period of his visit. Asked what day this happens he replied vaguely that it depends which day he takes off from work. First he said he was entitled to a day off each week then he said he makes up the time on other days spending longer at work.

23. Asked about his own income the applicant confirmed he earned about 1000 Lebanese ‘lira” a month. He said that they paid him in cash and therefore he had no documentary evidence to support this claim regarding income. However he said he had provided a bank statement showing savings. The Tribunal has significant concerns that the visa applicant claims to be an accountant in charge of payroll yet cannot provide independent evidence of his own earnings.

24. The applicant confirmed he had applied to come to Australia three times. However said he has not travelled elsewhere. He wishes to come to Australia for Ramadan and to see his 4 siblings here. Asked when he last saw his brother the review applicant. He replied “sometime ago”. Asked again when it was he replied one and a half months ago.

25. Asked about his marital status the visa applicant said he had a fiancé. He later said he had only a girlfriend but he intends to marry her and she is a reason to return home. No independent evidence of the claimed relationship was submitted.

26. The Tribunal questioned the applicant as to why he wished to visit Australia. He replied he wished to see the beauty of the country and to see various tourist landmarks. He added that he wished to visit because there is “no discrimination ‘and “no oppression’ in Australia. Asked what he meant by these comments he replied that though there was some discrimination and oppression in Lebanon they were “used to it and survived”.

27. Asked if he had experienced any discrimination in Lebanon as a Sunni Muslim he replied off point that he wishes to visit his nieces and nephews and would then return to his work and his fiancé. Asked again about discrimination the visa applicant replied to the effect that he does not get involved.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. 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.

29. 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 Sponsored Family stream may be granted: cl.600.231.

30. 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)).

31. The visa applicant has not travelled outside his own country and has not previously visited Australia. The above clause is not relevant.

32. The Tribunal however notes that the visa applicant has made two applications to visit Australia, one in 2013 and again in 2014 prior to this application. Both were refused.

33. 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.

34. The Tribunal notes the 22 year old visa applicant’s evidence that he is continuing studies in Lebanon. The Tribunal is unable to be satisfied that he may not seek to continue those studies in Australia in breach of condition 8201.

35. The Tribunal has significant concerns with the evidence regarding the applicant’s employment and notes a number of inconsistencies in regard to it.  Whilst the visa applicant claims he earns 1000 Lebanese Lira per month, he claims that though he does the payroll he is paid in cash and therefore is unable to provide independent documentary evidence of his income. The Tribunal finds the evidence implausible and this in turn throws doubt on the applicant’s evidence of employment. The visa applicant also gave evidence of his ability to take time off to drive his father to medical treatment and to Akkar on business. The Tribunal is unable to be satisfied that the applicant’s employment provides a strong incentive for his to return home.

36. The applicant is a single young man of 22 years and claims to have a girlfriend who provides an incentive for him to return home. The review applicant did not even know the visa applicant’s girlfriend’s name yet he was visiting Lebanon a very short while ago. The Tribunal finds no independent or reliable evidence to support the claim that the applicant has a girlfriend or fiancé at home that provides incentive for his return.

37. The visa applicant claims family responsibilities to his parents provide an incentive for him to return after a visit. He claims he is needed to take his father to the doctor for regular treatment and to drive his father to the family business in Akkar to collect money. The Tribunal notes inconsistent evidence as to who drives the visa applicant’s father to Akkar. The Tribunal is unable to be satisfied that these claimed responsibilities provide a strong incentive for the visa applicant to return home.

38. The Tribunal accepts that the visa applicant’s parents, two school aged brothers and a married sister live in Lebanon. His brothers and parents live near Tripoli and his married sister in Akkar. All are in the north of Lebanon. The visa applicant has four settled siblings with families in Australia. When considered with all the evidence the Tribunal finds there is not sufficient evidence regarding family at home to demonstrate that the applicant will comply with visa conditions if granted a visa.

39. The Tribunal has serious concerns about the general security situation in Lebanon. The advice from the Department of Foreign Affairs and Trade (DFAT) (April 2017) warns against travel to northern Lebanon and warns that the general security and political situation in Lebanon is unpredictable and could deteriorate without warning. Additionally, with ongoing war in neighbouring Syria, there remains considerable risk that the current unrest in northern Lebanon will escalate.

40. At the hearing the Tribunal discussed the country information regarding the security situation in Lebanon with both the review applicant and visa applicant. The Tribunal notes the review applicant’s evidence that his family live “2-3 hours’ drive from the border” and that his family have nothing to do with Akkar.  Whilst the Tribunal accepts the visa applicant and his family may not have personally experienced any difficulties, the Tribunal  notes the family business is in Akkar, an area of particular concern and the information before the Tribunal indicates that the situation in northern Lebanon is volatile and could deteriorate, and this area would be particularly vulnerable should conflict break out.

41. The Tribunal finds when considering all aspects of the application it must give weight to the situation in North Lebanon as providing a disincentive for the visa applicant to return home.

42. 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

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

    Mary Urquhart
    Member