Arjan (Migration)

[2018] AATA 4134

Arjan (Migration) [2018] AATA 4134 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Arjan

VISA APPLICANTS:  Mr Abdel Kader Arjan
Mrs Fatat Najjar

CASE NUMBER:  1715672

HOME AFFAIRS REFERENCE(S):           BCC2017/2035474

MEMBER:Nicole Burns

DATE:13 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 13 September 2018 at 2:43pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – trip to visit sons and grandchildren – complied with previous visa conditions – credible witness – other son in Australia omitted on visa application –  did not attempt to mislead the Department –  stability of Northern Lebanon – not directly affected by the unpredictable security situation – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (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 12 July 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 8 June 2017. 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 (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, who is the visa applicants’ son, appeared before the Tribunal on 12 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant over the 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. The representative attended the Tribunal 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 applicants seek the visas for the purposes of visiting their sons and grandchildren in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

11. Departmental movement records indicate that the first named visa applicant has travelled to Australia as the holder of a Visitor visa from 11 December 2010 to 7 March 2011.  He departed Australia before the expiry of the visa.  Departmental records also indicate that the second named visa applicant travelled to Australia as the holder of a Visitor visa from 11 December 2010 to 7 March 2011 and from 10 February 2013 to 31 July 2013.  She departed Australia before the expiry of the visas.  There is no evidence before the Tribunal to indicate that the visa applicants did not comply with the conditions of those visas. 

12. The Tribunal must also consider whether the visa applicants intend 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.

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

14. The delegate was not satisfied the visa applicants demonstrated sufficient ties to Lebanon which would act as a strong incentive for them to return there.  The delegate was also concerned about the failure of the visa applicants’ to include their other son – who arrived in Australia in 2009 on a Provisional spouse/partner visa and has not departed -  in the visa application form, concluding that they intended to mislead the Department.

15. At the Tribunal hearing the review applicant gave evidence about the purpose of the visit and his parents circumstances in Lebanon, considered below.

16. The review applicant said initially his parents planned to visit him and his brother in Australia around mid-2017 for Ramadan, for around a month or two.  Now they plan to visit around the time his third child is due to be born, on 12 December 2018.  The first named visa applicant confirmed that was the case at hearing and the Tribunal accepts the claimed purpose of the visit.

17. In terms of family ties, the Tribunal notes the visa applicants’ two sons live in Australia, both migrating here permanently on Partner visas after marrying Australian permanent residents or citizens. The review applicant has two children and his wife is expecting their third.  His brother, Mr Ahmad Arjan, has three children. The first named visa applicant said his sister and his wife’s sister live in Australia.  The existence of the visa applicants’ two children and five grandchildren, as well as the pending birth of their sixth grandchild, and sisters in Australia does act as a strong incentive for them to remain here.  However evidence has also been given that the visa applicant’s daughter and her three young children reside in Lebanon; that they live nearby; and the visa applicants’ help care for them.  The visa applicants also have extended family members in Lebanon.  The Tribunal accepts that is the case and considers the visa applicants have reasonably strong family ties in Lebanon which acts as a significant incentive for the visa applicants to return there before the expiry of any visitor visas that may be granted.

18. The review applicant told the Tribunal he has a sister who lives in America with her husband and children.  Around three years ago she was able to secure a ‘green card’ for the visa applicants in America, and they have visited there a number of times for a few months, including recently.  The representative submitted that the fact the visa applicants’ returned to Lebanon after visiting the US in the past indicates that they do not wish to leave Lebanon permanently, particularly given they have green cards.  The Tribunal agrees and considers the fact that the visa applicants are able to permanently reside in the US lends weight to the contention that they do not wish to migrate to Australia permanently.

19. In terms of employment and other ties to Lebanon, the review applicant told the Tribunal that his father is self-employed as a domestic painter.  The visa applicant confirmed that was the case at hearing, noting that given his age (61) he does not work that much anymore.  The Tribunal accepts the first named visa applicant’s work claims and considers his work in Lebanon acts as some an incentive for him to return there.  It also accepts the review applicant’s claims that his father owns two properties in Lebanon – a house he lives in and a house he rents out.  However given these can be sold the Tribunal does not consider they constitute particularly strong incentives to return to Lebanon.

20. The review applicant told the Tribunal that his brother migrated to Australia in around 2009 on a Partner visa, sponsored by his then wife.  They subsequently divorced and he has married again: he has three children with his second wife.  With respect to the delegate’s concern that the visa applicants failed to mention this fact at the visa application stage, the review applicant said they told their then migration agent about his brother in Australia and he is unsure why she failed to advise the Department, particularly given they also provided a copy of their family register record at the time, a copy of which was provided to the Tribunal (which the delegate refers to in their decision record).  The representative submitted that it was probably an honest mistake that Mr Ahmad Arjan was not included in the application form, but noted that the second named applicant clearly stated in that form the purpose of the trip was to visit her children.  She also submitted that previously when the visa applicants visited Australia they included both sons in their visa application forms.  The Tribunal found the applicants to be credible witnesses at hearing and accepts the visa applicants did not attempt to deliberately mislead the Department by omitting to include Mr Ahmad Arjan on the application forms.  The Tribunal also notes there is nothing before it to indicate that Mr Ahmad Arjan has an adverse immigration history and therefore it is unclear why the visa applicants would want to deliberately omit him from the form.    

21. Although the delegate did not specifically mention the security situation in Lebanon in their decision record, the Tribunal notes DFAT’s assessment in their most recent country information report on Lebanon is that overall the security situation in Lebanon remains largely stable, but unpredictable.[1] DFAT’s most recent travel advice is to reconsider a need to travel to Tripoli, Northern Lebanon (where the visa applicants reside) due to a high level of risk.  They also state the ongoing conflict in neighbouring Syria is affecting stability in Lebanon.[2]  At hearing the review applicant said his parents are not affected by the sectarian violence and live peaceful lives in Lebanon.  The first named visa applicant said he has lived in Northern Lebanon all his life and is not directly affected by any instability.  The representative submitted at hearing that the sectarian issues that affected Tripoli were from a few years ago and the problem is now solved; the visa applicants live far away from the area involved; and in general people such as the visa applicants who are not involved in politics, over 50, have their own business and keep to themselves are not affected or targeted.  She thinks that the media has exaggerated the problem.  The Tribunal found the applicants’ credible witnesses at hearing and accepts  their evidence that the visa applicants are not directly affected by the unpredictable security situation in Northern Lebanon.   Furthermore, whilst the Tribunal considers the at times unpredictable security situation in Northern Lebanon may act as a disincentive for the visa applicants to return there to a certain extent even if not directly affected, it notes DFAT’s assessment that overall the security situation remains largely stable and considers any residual concern about its unpredictability is outweighed by other positive aspects of this case, as discussed. 

    [1] DFAT Country Information Report Lebanon, 23 October 2017.

    [2] DFAT Smartraveller, Lebanon, last updated 22 June 2018, still current at 13 September 2018.

22. The review applicant gave evidence that he came to Australia in 2003 as the holder of a Partner visa.  He owns a fencing company and employs two staff.  He told the Tribunal he will pay for his parents’ visit and provided a copy of his bank account statement to the Department as evidence of his financial capacity.   As mentioned he has two children and his wife is expecting their third in December.  It appears he has worked hard to establish his life here and there is nothing to indicate that he has circumvented the proper migration channels to do so.  Given these considerations the Tribunal is of the view that the review applicant would ensure his parents returned to Lebanon before the expiry of any visitor visas that may be granted, as they have in the past, not wanting to jeopardise any future visitor visa applications by them or other relatives.

23. In summary, the Tribunal accepts that the visa applicants have reasonably strong incentives to return to Lebanon in the form of their daughter and her three young children who they are close to and help care for, as well as other extended family members there.  The first named visa applicant has some work commitments, although the Tribunal considers these are not particularly strong.  There are some concerns about the unpredictable security situation in Northern Lebanon acting as a disincentive for the visa applicants to return there, but the Tribunal is of the view that this concern is outweighed by other positive aspects of the case, as discussed.  The Tribunal also gives significant weight to the visa applicants’ travel history to Australia where they returned before the expiry of their visitor visas.

24. Considering the visa applicants’ circumstances overall and for the reasons set out above, the Tribunal is satisfied that the visa applicants’ stated intention to visit Australia temporarily for the express purpose of visiting their children and grandchildren is genuine. 

25. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

26. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Nicole Burns
    Member