Ayoub (Migration)

[2020] AATA 3612

Ayoub (Migration) [2020] AATA 3612 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Ayoub

VISA APPLICANT:  Mr Abdel Nasser Ayoub

CASE NUMBER:  1834796

HOME AFFAIRS REFERENCE(S):          BCC2018/4301613

MEMBER:Scott Clarey

DATE:31 August 2020

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 31 August 2020 at 17:34pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – general financial, political and security conditions in home country – review applicant only family member in Australia – other family, girlfriend and employment in home country – review applicant’s previous compliant sponsorship of two other siblings and intention to sponsor more family members – 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 Immigration on 25 October 2018 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 27 September 2018. 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 review applicant appeared before the Tribunal on 10 August 2020 via teleconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant (his older brother) and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

8. In assessing the issues, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file as well as the oral evidence given at the hearing.

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)).

10. The review applicant gave oral evidence that the visa applicant has not travelled to Australia before. In the circumstances, the Tribunal makes no findings with respect to the visa applicant’s previous compliance with Australian immigration conditions.

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 discussed each of these conditions with the review applicant. The review applicant told the Tribunal that the visa applicant would comply with all conditions. He told the Tribunal that the visa applicant had no intention of remaining in Australia or working or studying here during the period of the permitted stay. He noted his own history as a hard working migrant and family man in Australia for a number of years and stated that he did not want the visa applicant to do anything that might jeopardise his standing in Australia. He also noted that he intended to sponsor other family members for visits to Australia in the future. The review applicant stated that he intended to apply to sponsor his mother to visit Australia in the near future for a holiday so she could see her grandkids when the situation allowed. The review applicant said that given the size of his family, the age of his kids and the fact that one of his sons had special needs, it was difficult for his family to all travel back to Lebanon to visit, as much as he would like to. The review applicant said that both he and the visa applicant knew that any non-compliance from the visa applicant would all but guarantee any future planned travel from other family members to Australia would not be possible, which he stressed was a situation he was very keen to avoid. The Tribunal found the review applicant to be candid and credible and therefore accepts his oral evidence. 

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

14. At the hearing, the Tribunal asked the review applicant questions relating to various factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to Lebanon.

15. The Tribunal asked the review applicant why his brother had applied for the visitor visa to visit Australia. He stated that originally he had applied for his brother to visit when his wife was pregnant so that he could see the family and assist with tasks such as taking his wife to appointments because the review applicant was busy with work and wasn’t always available. Although his wife had since given birth, the review applicant said that the visit was more just to visit his family, and to meet his nieces and nephews for the first time. The review applicant said that his brother would stay with him at his home for the duration of his trip.

16. When asked about his brother’s life in Lebanon, the review applicant said that his brother lived with his parents and worked as a land surveyor for an engineer, a good job that he had held for about five years. He said he earned a relatively high salary by Lebanese standards. He said that his brother was not married but had a long-term girlfriend in Lebanon who he intended to marry in the future. The review applicant stated that his brother had never travelled outside of Lebanon previously. 

17. When asked about his broader family, the review applicant stated that he was the only family member in Australia, the rest of his large family – both parents, six brothers and a sister – all lived in Lebanon. The Tribunal accepts this. According to departmental records and the oral evidence of the review applicant at the hearing, the review applicant has previously sponsored two other siblings to visit Australia (his sister Rania in 2013 and his brother Mohamad in 2012) on visitor visas, both of whom appear to have complied with the conditions attached to their visas, including by departing Australia before the visa period ceased.

18. The Tribunal raised with the review applicant concerns relating to country information, including information contained in the Department of Foreign Affairs and Trade country information report on Lebanon. The Tribunal asked the review applicant if the significant financial, political and security instability within Lebanon could be a reason for the visa applicant not to comply with the conditions of his visa if it were granted. The review applicant acknowledged these issues but said that their family had not been directly and/or significantly impacted by this situation. The review applicant reiterated the incentive for his brother to comply with the conditions of the visa, given his intention to sponsor other family members to visit in the future, and assured the Tribunal that his brother would comply. The Tribunal accepts this.

19. The visa applicant was available and willing to provide oral evidence by telephone from Lebanon but, having heard the review applicant’s oral evidence and reviewing the evidence before the Tribunal, the Tribunal did not consider it to be necessary.

    Findings

20. After considering all the evidence before it, on balance the Tribunal considers that factors such as the presence of the visa applicant’s parents, siblings and extended family in Lebanon, his well-established life there, his ongoing employment ties and his better than average economic status form stronger incentives for him to return to Lebanon than the incentive for him to remain in Australia. The Tribunal also gives weight to the past compliance of other siblings the review applicant has previously sponsored to visit Australia, and the incentive for compliance that the review applicant discussed at the hearing, given his intention to sponsor other family members to visit him in the future. The Tribunal accepts that the visa applicant has a genuine intent to stay temporarily in Australia to visit his brother and other family members in Melbourne. The Tribunal accepts that the visa applicant intends to return to Lebanon within the specified timeframe.

21. 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

22. 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.

    Scott Clarey
    Member