CHANDAB (Migration)

[2018] AATA 1186

CHANDAB (Migration) [2018] AATA 1186 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr YOUNES AHMAD CHANDAB

VISA APPLICANT:  Mr YOUNESS CHANDEB

CASE NUMBER:  1713591

DIBP REFERENCE(S):  BCC2017/1246389

MEMBER:Tania Flood

DATE:16 March 2018

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 16 March 2018 at 2:24pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Tourist stream – Whether the applicant genuinely intends to visit Australia temporarily – Strong emotional and financial ties to home country – Incentives to return to home country outweigh incentives to remain in Australia

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611(2), Schedule 8, Conditions 8101, 8201, 8503, 8531

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 18 April 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 2 April 2017. 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 was refused on the basis that the visa applicant did not meet cl.600.211 because the Delegate was not satisfied he genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas 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.

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

   BACKGROUND

8. The visa applicant is a single male born on 23 March 1992 in Bkarsouna in Danieh Province, North Lebanon.  He has been employed since January 2011 by Kasr El Oumara Hotel.  His mother and siblings reside in Lebanon.

9. The review applicant is the visa applicant’s uncle.  He has four brothers also residing in Australia. He is married with children.

   TRIBUNAL HEARING

10. The review and visa applicants evidence to the Tribunal is summarised as follows:

11. The review applicant is an Australian citizen.  He obtained his citizenship after marriage.  He divorced his first wife about ten years ago and remarried his current wife about two years ago.  He has five children from his former marriage and is expecting a child with his new wife.

12. The review applicant is the General Manager of Stone Select, a company part owned by his wife.  Prior to this he worked in the same industry for many years.

13. The review applicant has four brothers living in Australia.  Three brothers are married and are Australian citizens. 

14. The review applicant has a very large family in Lebanon including eight brothers, two sisters and numerous nieces and nephews.  His parents are deceased.

15. The visa applicant is currently single but has met a woman he has expressed a desire to marry.  He has spoken to her parents.

16. The visa applicant is a Sunni Muslim.

17. The visa applicant is one of fifteen children.  He and nine of his siblings are living at home with their mother.  Their father is deceased.

18. The visa applicant and four of the siblings who live at home are working.  The remainder of his siblings who still live at home are studying. 

19. The visa applicant’s remaining siblings are married and either they or their spouses are employed.

20. The visa applicant has worked at a hotel since 2011 in a maintenance role.  He earns approximately $1,000 USD per month and is paid in cash.

21. The visa applicant recently bought an apartment.  It is currently vacant as he has not yet decided whether to live in it or resell it for a profit.  He purchased the apartment using profits from the sale of agricultural produce from his land.  The last harvest earned approximately $100,000USD.

22. The visa applicant has no prior travel history.

23. The review applicant visited the visa applicant in Lebanon about four months ago.  During his eight day stay in Lebanon he lived in the visa applicant’s home and would like to repay the hospitality.  The review and visa applicants enjoy a close relationship and the review applicant is a confidant of the visa applicant since the death of his father.

24. The visa applicant would like to visit Australia to meet with his uncles and their families in both Sydney and Melbourne and to spend Ramadan with them.  He has agreement from his employer to be away from work for two months.  He will receive one month’s paid leave and take a further month unpaid leave. 

25. The review applicant has offered to purchase the visa applicant’s air ticket and to assist him with living expenses while he is in Australia.

26. The visa applicant has no plans to undertake any work or study while he is in Australia.

27. The visa applicant is the oldest child still living at home.  He will return to Lebanon for this reason and because he is hoping to get engaged to his girlfriend.  He also enjoys his work and has a trusted position in the company. 

28. The visa applicant is not involved with any political or religious groups in Lebanon and does not have any problems in Lebanon.  His family are financially stable.

29. The review applicant is willing and able to provide a security bond of between $5,000 and $10,000 to facilitate the grant of the visa.  He understands that this sum would be forfeited if the visa applicant did not return to Lebanon at the end of his holiday.  He is not worried about that; he trusts his nephew will act in accordance with Australian law.

    s.359AA Information

30. During the hearing the Tribunal put it to the applicant, pursuant to the requirements at s.359AA of the Act, that records of the Department of Immigration indicate that one of his brothers came to Australia in 2015 as the holder of a Visitor Visa and has not returned to Lebanon. The Tribunal indicated that it is concerned that the visa applicant may be planning to do the same thing. The Tribunal explained that this raises concerns about the expressed intention of the visa applicant to only want to visit Australia temporarily.

31. The review applicant responded that he does not know a lot about his brother’s circumstances explaining that this brother is his step-brother and he lives in Melbourne.  During a break in the proceedings the review applicant contacted his brother and advised the Tribunal that it appears his brother has commenced a relationship with a woman in Australia and this is why he has not returned to Lebanon.  He informed the Tribunal that another of his brothers is responsible for sponsoring this family member’s visit to Australia.

    POST-HEARING SUBMISSION

32. After the Tribunal hearing further information was provided in respect of the family’s migration history including copies of passports showing entry and exit stamps to Australia.  This information details the movements of various nephews, cousins and uncles of the review and visa applicants and shows a compliant family immigration history with one exception.  The submission to the Tribunal indicates that the review applicant’s brother who remained in Australia after his visa ceased applied for a Protection visa which is yet to be determined.     Also included in the submission is a letter from the Mayor of Bkarsouna which certifies that the applicant owns a parcel of land, inherited from his grandfather, which produces an annual income of about 100 million Lebanese pounds.  The letter also provides information about the employment and earnings of various of the visa applicants siblings.

    CONSIDERATION OF CLAIMS AND EVIDENCE

33. 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.

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

35. 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)).

36. The available evidence before the Tribunal is that the review applicant is a long term resident of Australia after being granted a Partner visa and becoming an Australian citizen.

37. The visa applicant has never visited Australia.

38. Various other members of the review and visa applicant’s family, with one exception mentioned above, have visited Australia on Visitor visas and returned to Lebanon when their visas ceased.

39. 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(2)):

    ·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.

40. The Tribunal accepts the visa applicant has been in full-time employment since 2011.  The Tribunal also accepts that the review applicant is in full-time employment and is in a position to assist the visa applicant with transport and living expenses during a visit to Australia.  The Tribunal is satisfied that the visa applicant will not work in Australia if he is granted a Visitor visa.  The visa applicant intends to travel to Australia for two months and on the available evidence he intends to spend time with his many relatives in Australia in both Sydney and Melbourne.  The Tribunal is also satisfied in the circumstances that he does not intend to engage in study or training if he is granted a Visitor visa.  The Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

41. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

42. As discussed with the review and visa applicants at hearing the visa applicant is the oldest child of fifteen siblings who remain living at home with their mother.  During the hearing the Tribunal expressed concern that this situation might provide an incentive for the visa applicant to remain in Australia and work to supplement the family income.  The review and visa applicant’s evidence is that four other of his siblings who live at home are also working and that the family does not have financial problems because this income is supplemented by substantial annual earnings from their farming activities.  The only evidence, other than the verbal testimony of the review and visa applicants, to substantiate the claim of agricultural earnings is a statement provided by the Mayor of Bkarsouna.  As the Tribunal has no way of knowing on which basis the Mayor has made this declaration it has not afforded a great deal of weight to this evidence.  However, given the consistent oral evidence which has been presented to the Tribunal in respect of the family’s income,  the Tribunal is prepared to accept that financial pressure will not be a disincentive for the visa applicant to return home at the end of his visit.

43. The Tribunal does find it problematic that the review applicant’s oral and subsequent written evidence about the reasons for his step-brother remaining in Australia after his visa ceased differs between accounts.  However, during the hearing the review applicant appeared to genuinely not know the details of his step-brother’s visa status in Australia.  After voluntarily calling his step-brother to enquire about this he prefaced his reply to the Tribunal by saying that his step-brother has not openly discussed this matter with him and because he lives in Melbourne it is not a subject they generally discuss.  After the hearing the review applicant volunteered further information indicating the true nature of his step-brothers application to remain in Australia. The review applicant was represented at hearing and during the proceedings the Tribunal requested that a written submission be provided outlining the details of any close relatives who have visited Australia.  The Tribunal finds it likely that in the course of completing this task further enquiries were made of the review applicant’s step-brother about his visa status.  The Tribunal is prepared to accept that this accounts for the differing evidence provided by the review applicant about his step-brothers situation rather than any intention to mislead the Tribunal about his step-brothers actions.   

44. Notwithstanding this, the Tribunal has considered the likelihood of the visa applicant attempting to follow a similar path to remain in Australia for a longer period of time by applying for a Protection visa. At the hearing the visa applicant stated that he has no problems in Lebanon for reason of his religion and has no political involvement.  He said that he has no problems in Lebanon which could give rise to him not wanting to return home at the end of a visit to Australia.  Further, the Tribunal notes its findings in respect of the family’s financial position. The Tribunal has also accorded weight to the long list of family members who have been granted Sponsored Family Visitor visas in similar circumstances and who have entered and departed Australia in compliance with the conditions of their visas.  There is nothing before the Tribunal to indicate that the visa applicant will seek to remain in Australia by applying for a Protection visa.

45. The Tribunal notes the visa applicant’s claim that he has met a woman he hopes to marry.  On further questioning the Tribunal concluded that while this may well be the case the situation at present is that the visa applicant remains a single man.  However, the visa applicant is one of numerous siblings who all live in Lebanon.  He enjoys a close relationship with his siblings and in fact lives with the majority of these siblings and his mother. In addition, he has a large extended family in Lebanon.  On the other hand, the visa applicant’s relatives in Australia consist of his uncles and their offspring.  While considerable in number, the Tribunal nevertheless considers the visa applicant’s family ties in Australia do not outweigh his strong family ties in Lebanon. 

46. The Tribunal considers the visa applicant’s family ties in Lebanon provide a strong incentive for him to return home at the end of his visit as does his steady employment and responsibility for managing his family’s not insubstantial agricultural activities.

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

48. Having carefully considered the available information the Tribunal is persuaded 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

49. 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.

    Tania Flood
    Member