Baddour (Migration)

[2018] AATA 5629

Baddour (Migration) [2018] AATA 5629 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jawad Baddour

VISA APPLICANT:  Mr Abdullah Baddour

CASE NUMBER:  1722975

HOME AFFAIRS REFERENCE(S):           BCC2017/3281440

MEMBER:Nicole Burns

DATE:19 November 2018

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 19 November 2018 at 12:55pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visit brother’s family – incentive to return to home country – significant family ties in Lebanon – country conditions – compliance of visa conditions by other family members in the past – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 14 September 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 9 September 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 Tourist 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.

5. The review applicant appeared before the Tribunal on 19 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).  Given the visa applicant has never visited Australia before, this sub-clause does not apply.

10. 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 may include:  

    ·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.

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

12. The visa applicant is a 26 year old single man who lives with his parents in Kalamoun, Northern Lebanon.  He wants to visit his brother in Australia, and his brother’s three children.   The review applicant told the Tribunal that for the past six years the visa applicant has worked full time at a shop that sells paint.  The visa applicant provided to the Department a copy of a letter from his employer, dated 28 August 2017.  Apart from the review applicant, the review applicant’s three children, an uncle in Melbourne, an aunt in Sydney and a number of cousins in Sydney and Melbourne (whom he is not close with), all of the visa applicant’s immediate family live in Lebanon: that is his parents (whom he lives with), two brothers and two sisters.  He also has a large number of nieces and nephews and other extended family members.  The Tribunal considers the presence of such family members in Lebanon acts as a significant incentive for the visa applicant to return to Lebanon before the expiry of any visitor visa that may be granted to him.  The Tribunal also accepts that his job as a salesperson which is reasonably long term and secure acts as a strong incentive for him to return. 

13. The review applicant gave evidence to the Tribunal that he migrated to Australia in 2004 on a spouse visa.  He has since separated from his wife – in around 2014 – and they have shared custody of two children.  He works full time in a painting business in Australia.  The Tribunal found the review applicant a credible witness at hearing and it appears that he has worked hard to establish his life here.  There is nothing before the Tribunal to indicate that he has circumvented the proper migration channels.

14. The review applicant gave evidence, which the Tribunal accepts, that his mother has visited him in Australia seven times since 2005, his father four times since 2007 and his (other) brother visited him once, in 2009/2010. They all visited Australia as the holders of visitor visas and departed the country before the expiry of those visas.  The Tribunal has given this fact significant weight in assessing whether or not the visa applicant intends to genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

15. The delegate noted in their decision record concerns about the unpredictable political and security situation in Northern Lebanon, noting that it is well documented that Lebanon has suffered political and civil unrest over many years.   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 recent travel advice is to reconsider a need to travel to Northern Lebanon (where the visa applicant resides) 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 that his home area – which is a tourist area on the coast – does not experience any security-related problems, and noted it is a relatively wealthy town. The Tribunal found the review applicant a credible witness at hearing and is willing to accept that the visa applicant is not directly affected by the unpredictable security situation in Northern Lebanon as submitted.  Whilst the Tribunal considers the at times unpredictable security situation in Northern Lebanon may act as a disincentive for the visa applicant 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.

16. 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

17. 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.

    Nicole Burns
    Member