Bou Merhi (Migration)

[2021] AATA 2144

Bou Merhi (Migration) [2021] AATA 2144 (15 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Cendrella Bou Merhi

VISA APPLICANT:  Mr Charbel Bou Merhy

CASE NUMBER:  1830685

HOME AFFAIRS REFERENCE(S):          BCC2018/3056844

MEMBER:Moira Brophy

DATE:15 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 April 2021 at 11:20am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – sponsored family visitor – applicant was the only sibling member of the family living in Lebanon –  family links to Australia – strong incentive remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Home Affairs on 10 September 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 August 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 (Cth) (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 because the delegate was not satisfied the applicant intended to stay temporarily in Australia.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant gave evidence at an MS teams teleconference on 14 April 2021. The Tribunal also received oral evidence from the visa applicant Mr Charbel Bou Merhy. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

9. The visa applicant, Mr Charbel Bou Merhy, is a 26-year-old national of Lebanon. His parents reside in Lebanon. He has two brothers and one sister who reside in Australia. He has never been to Australia. In his application for a Visitor visa, he stated that he is gainfully employed as an assistant tiler. He wishes to travel to Australia for a period of up to three months. 

10. The review applicant, Mrs Cenderella Bou Merhy is the sister of the visa applicant. She is an Australian citizen. She arrived in Australia on 18 October 2008 on a Prospective Marriage (subclass 300) visa. On 5 February 2010 she was granted a Partner (subclass 820) visa on the grounds of being in a genuine and continuing relationship with her now husband. She was granted a Permanent Partner (subclass 801) visa on 24 June 2011. She has acquired Australian citizenship.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister and his brothers and their families. This is a purpose for which a visa in this stream may be granted: cl.600.221 and cl.600.222.

13. 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)).

14. The review applicant told the Tribunal the visa applicant had not previously travelled outside Lebanon.

15. On his application the visa applicant stated he wanted to visit Australia for a period of up to three months.  At the time of hearing the review applicant said he would come for a few weeks; he had asked his employer for three months off work. The visa applicant said he would come for as long as he could be granted a visa for. He had requested three months off work as he considered that would give him sufficient time to visit his sister and two brothers, his friends and the other relatives he had in Australia.

16. 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.

17. The Tribunal discussed with the visa applicant how he would arrange his employment during his proposed absence. He told the Tribunal he was with a good employer and they were prepared to grant him a period of leave. He had been with his present employer for six years.  The Tribunal is concerned that while the applicant is employed and earning an income in Lebanon his position would not be an incentive to return to Lebanon. Severance of this tie could occur with a minimum of difficulty and his professional skill set would be portable. The Tribunal placed some weight on this given his evidence of working in the construction industry as a tiling assistant and one of his brothers being in this area in Australia. Given the current volatility in Lebanon the prospect of employment in Australia could be a factor the visa applicant would consider a reason for not complying with his visa conditions.

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

19. In assessing intention, the Tribunal was mindful of the evidence given by the review applicant as to his circumstances. The review applicant gave evidence of having arrived in Australia on a Prospective marriage visa. She and her husband have four children ranging in age from 11 to three years. They live in their own home. The review applicant works in a company owned and run by her husband who is an architect. They have a combined income of $7560 per calendar month. They have savings of around $30,000. There are two other bothers in Australia. One brother is married, and he lives with his wife and family. The other brother came to Australia on a Visitor visa in 2014, met his wife and he was then sponsored to Australia on a spouse visa. He is now divorced and living with the review applicant and her family.

20. The visa applicant gave evidence of being in full time employment. He stated he did not own property, he lived with his parents in a house they owned, and he had around $7000 in savings. When asked what impact the current situation in Lebanon had on him, he said he had not been affected as he was in secure employment, they owned their own home and had land on which they grow produce. He said he was not able to work during the national shutdowns but apart from that he had been unaffected by COVID.

21. When the review applicant was asked if she would be prepared to post a security bond and if so for what amount she told the Tribunals she would be able to post a security bond for $10,000 to $15,000.

22. The Tribunal discussed with the review applicant its concerns that the visa applicant would not return to Lebanon at the end of his stay if the visa was granted. The Tribunal put to the review applicant that given he was the only sibling member of the family still living in Lebanon there may be legitimate concerns that this was not indicative of a person who intended a genuine short stay. The Tribunal discussed with the review applicant the concerns of the Tribunal that this was really an application to obtain a migration outcome that allowed another member of her family to be in Australia. The review applicant stated the visa applicant would return home because of his job and her parents. The visa applicant said he would return because of his job and his parents.

23. The Tribunal has taken into account the applicant's personal profile and the circumstances of his family including the fact his parents have come to Australia on a number of occasions and complied with the conditions of their  visa but given the matters discussed above the Tribunal has difficulty accepting that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal was not persuaded the incentives to return to Lebanon were sufficient to ensure adherence to the visa conditions.

24. For the above reasons, both singularly and cumulatively, 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

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

    Moira Brophy
    Member