Barakat (Migration)

[2017] AATA 2612

Barakat (Migration) [2017] AATA 2612 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Madeleine Barakat

VISA APPLICANT:  Mr Nazih El Samarani

CASE NUMBER:  1701963

DIBP REFERENCE(S):  BCC2016/4011106

MEMBER:Melissa McAdam

DATE:18 September 2017

PLACE OF DECISION:  Sydney

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 18 September 2017 at 4:59pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Planned trip to visit family members – Visa applicant has property and savings in Lebanon – Intention to visit temporarily – Accommodated and fully supported by the review applicant

LEGISLATION
Migration Act 1958 ss 65
Migration Regulations 1994 Schedule 2 cls 600.211, 600.211(a)-(b), 600.222, 600.611(3)

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 29 December 2016 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 28 November 2016. 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 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 visa applicant provided the following information in his visa application:

   a.The visa applicant is a 49 year old Lebanese man from Zgharta in North Lebanon.

   b.He has a wife and three adult sons, the youngest being 18, and father who each live in Lebanon.

   c.He wants to visit Australia for up to three months between December 2016 and March 2017.

   d.He has a sister, the review applicant, who lives in Guildford, Australia and is an Australian citizen.  He has a brother who lives in Melbourne, Australia and is an Australian citizen.

   e.He is self-employed as a farmer in Lebanon.

   f.His sister will accommodate and financially support him while he is in Australia.

   g.He was refused a visitor visa in 2012/13, July 2015, and 2016.

   h.He has previously visited Australia and not breached any visa conditions.

   i.He submitted copies of the following documents:

   i.His Lebanese passport.

   ii.An extract from his official family register showing himself, his wife and three children.

   iii.An extract from his father’s official family register showing that he and the review applicant are siblings.

   iv.A letter, dated 7 June 2012, from the Australian Immigration Department advising the review applicant that a Visitor visa application by the visa applicant had been successful.

   v.A bank statement from the visa applicant’s Byblos Bank account showing a balance of LBP 29,198,038.

   vi.A Title Deed for a property, “Land planted with Olive Trees”, in the visa applicant’s name.

   vii.A Lease Agreement naming the visa applicant as Lessee.

   viii.A letter from the Parish Priest in Zgharta attesting that the visa applicant’s son, Dani, will marry next Summer, on 5 August 2017.

   ix.A signed declaration by the visa applicant that the refugee definition does not apply to him.

   x.The review applicant’s Australian passport.

   xi.The review applicant’s marriage certificate.

   xii.The review applicant’s bank account statement showing a closing balance of $11,972.

   xiii.A statement from the review applicant in which she states:

   1.She and her family travel to Lebanon on a yearly basis and reside with her relatives in North Lebanon. They would not do this if it was not a safe environment.

   2.The visa applicant is retired from the army and receives a government pension payment each month.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because there were insufficient incentives for the visa applicant to return to Lebanon; because his sister lodged an application for permanent status in Australia in 1994; because of civil unrest in Lebanon; and because there was no compelling reason for the visa applicant to need to stay in Australia for three months.

6. The review applicant appeared before the Tribunal on 18 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from the review applicant’s daughter, Ms Nancy Barakat. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The following is a summary of the information provided at the hearing:

   a.The visa applicant’s son married in Lebanon in August 2017. The review applicant travelled there for the wedding. She returned to Australia about one month ago. While she was in Lebanon there was no problem and she had no concerns. There were no  security issues.

   b.Her brother, the visa applicant, does not have any enemies or disputes in Lebanon. He is not the type of person to have problems with others.  He and his wife have a good relationship.

   c.The visa applicant lives with his wife, father and two youngest sons. His eldest son is married and has his own home. He works as a nurse at a Beirut hospital. The visa applicant’s youngest son is studying at university. His middle son has a mobile phone business 

   d.The visa applicant’s sources of income are his farm and his army pension.  Together they are enough for him to support his household. His army pension entitles him and his dependents to free services including medical services. His father, wife and two youngest sons benefit from this. If the visa applicant stays in Australia he will lose his army pension and his dependents will lose their benefits.

   e.The visa applicant will lose his army pension if he stays in Australia because he has to renew his paperwork in Lebanon every year to for the pension to continue. He has to prove residence in Lebanon to continue to receive the pension.

   f.On his farm he has olive trees and he produces olive oil. He also grows vegetables.

   g.The visa applicant cares for his father in Lebanon. He helps his father with his medication. While the visa applicant visits Australia his wife and sons will care for his father.

   h.The review applicant is able to pay a security bond for her brother’s visit to Australia. If she loses this money it will have a very bad financial impact as she has debts to pay including a mortgage.

   i.The review applicant’s two other brothers came to Australia on Partner visas.

   j.The review applicant previously sponsored her father to visit Australia about four years ago and he complied with his visa conditions.

   k.The visa applicant has not travelled to any other country because he has relatives only in Australia. He is very close to his nephew in Melbourne, Joseph, who is blind. He very much wants to see Joseph while he is in Australia. Joseph lives with his parents in Melbourne. Any care Joseph needs his mother provides. The purpose of the visa applicant’s visit to Australia is not to provide care for Joseph.

   l.If the visa applicant visits Australia he will spend one month with his brother in Melbourne, one month with his brother in Sydney and a month or whatever is left with the review applicant.

7. According to the visa applicant’s Departmental Movement Record he came to Australia on 19 August 2012 on a Subclass 679 visa which ceased on 19 October 2012. He departed Australia on 18 October 2012.

   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 seeks the visa for the purposes of visiting his siblings and their families in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).  The visa applicant has previously held a Visitor visa and the records indicate that he fully complied with his visa conditions on that occasion.

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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

12. The Tribunal accepts that the visa applicant will be accommodated and fully supported by the review applicant and other relatives while in Australia. The Tribunal accepts that the visa applicant has personal savings and that the review applicant has sufficient funds to support the visa applicant during a visit to Australia.  There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied he intends to comply with condition 8101.

13. There is no evidence or indication the visa applicant has any interest in or need to study in Australia. The Tribunal is therefore satisfied he intends to comply with Condition 8201.

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

15. The Tribunal accepts that the visa applicant is a married man with three children in Lebanon. Two of his children still live with him and the youngest is still fully dependent upon him.  The Tribunal considers that the presence of these family members represents significant incentive for the visa applicant to return to Lebanon after a short stay in Australia.

16. The Tribunal accepts that the visa applicant has secure and valued income from his farm and army pension in Lebanon. The Tribunal accepts that the visa applicant would be motivated to return to his farm work in Lebanon to continue to provide for his family.

17. The Tribunal accepts that the applicant’s ongoing stay in Australia would jeopardise the renewal of his army pension in Lebanon. The Tribunal accepts that the visa applicant and his dependents - namely his wife, father, and two sons - rely upon the visa applicant’s army pension for their health care and other service needs. The Tribunal considers the threat to the renewal of the visa applicant’s pension would be significant motivation for the visa applicant to return to Lebanon.

18. The Tribunal gives substantial weight to the good migration history of the visa applicant in his past travel to Australia. The Tribunal also gives weight to the generally good migration history of the review applicant and her brothers and father in Australia.

19. The Tribunal accepts that if a security bond was required of the review applicant, the review applicant would be further motivated to ensure the visa applicant does comply with his visa conditions and returns to Lebanon before the expiry of his visa. 

20. The Tribunal acknowledges DFAT’s information about the security situation in Lebanon. The Tribunal has not however located any information indicating there are security concerns or threats in the visa applicant’s home area. The Tribunal accepts that the review applicant visits that area with her family, including annual trips in recent years, without experiencing concerns for their safety. The Tribunal has also not located information indicating any threat to Christians in the visa applicant’s home area.  On the basis of the information before it the Tribunal is satisfied that the security situation in the visa applicant’s home area would not cause the visa applicant to remain in Australia.

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.

    Melissa McAdam
    Member