CHRAKIE (Migration)

[2018] AATA 2202

CHRAKIE (Migration) [2018] AATA 2202 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mike CHRAKIE

VISA APPLICANTS:  Mr Rami Chrakie
Master Samer Chrakie

CASE NUMBER:  1722744

DIBP REFERENCE(S):  BCC2017/2841080

MEMBER:Meena Sripathy

DATE:25 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 25 May 2018 at 4:07pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Sponsored Family stream

– Visiting their relatives and their families – Genuine intention to stay temporarily – Substantial and close family ties –  Adequate means to support himself– Lack of any contradictory evidence – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 13 September 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 8 August 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied the first named applicant only intends a genuine temporary stay, on the basis that he is self employed and has dependent family members in Lebanon and was here already for 44 days in 2017 and the delegate queried his financial capacity to have two visits to Australia in the same year.

5. The review applicant appeared before the Tribunal on 24 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic 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 first named visa applicant is a 38 year old married man from Tripoli North Lebanon and the second named applicant is his 7 year old son.  The first name visa applicant has his wife and two more young children, as well as his father, 6 sisters and 1 brother in Lebanon. In Australia he has the review applicant, and two other sisters and their families.  He indicates he is self employed as a trader for the past 12 years.  The second named applicant is enrolled in school.  Documents included with the application include the family register, evidence of registration of commercial store; bank statement showing regular cash deposits and payments of school fees; extracts from first and second named applicants’ passports showing multiple Schengen visas in 2014-2016 and evidence of travel to places outside Lebanon including Europe and Dubai.

8. The review applicant and visa applicant both gave evidence to the Tribunal at the hearing, about their background and circumstances.  Their evidence was substantially consistent and detailed and the Tribunal found them to be credible, forthcoming and honest witnesses.  Details of their evidence and responses to issues discussed at the hearing is discussed further below.

9. 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.

10. In the present case, the visa applicants seek the visas for the purposes of visiting their relatives and their families.  The first named visa applicant has three siblings in Australia, including the review applicant, and their families. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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 first named visa applicant travelled to Australia in 2017, following remittal by a differently constituted Tribunal (case reference 1611179) of a previous visitor visa refusal.  He departed Australia within the period of that visa and there is no other information before the Tribunal to suggest non-compliance on his part during that stay. The Tribunal finds on the basis of this evidence that he complied substantially with the conditions of the last substantive visa held. 

12. 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.

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal makes the following findings on the basis of all the evidence before it, including documents provided to the Department and Tribunal, oral evidence to the Tribunal and information included in the decision of the previous (differently constituted) Tribunal.  On the basis of the consistent oral and documentary evidence before it, the Tribunal accepts the first named applicant has a wife and two children he will be leaving behind in Lebanon, as well as his father and seven siblings and their families.  It finds that he has substantial and close family ties which would strongly encourage his return at the end of a visit.  Consistent evidence is also before the Tribunal regarding his business in Lebanon.  It accepts that he owns and operates an auto trading and spare parts business from multiple commercial properties which he owns.  It accepts that he has two employed staff and that they will continue to operate the business during the period of his absence.  It accepts on the evidence of visas and travel stamps in his passport, and his oral evidence, that he travels frequently to Germany and Dubai for the purposes of work and holds a valid Schengen visa. The Tribunal is satisfied that the first named visa applicant has a successful and established business and is sufficiently well off to be able to travel again to Australia for a temporary stay, and finds his financial and business circumstances in Lebanon are factors that would encourage his return at the end of a visit.  Given these findings, the Tribunal does not share the delegate’s concerns about his financial capacity for a further visit to Australia.

14. The Tribunal has considered independent information about country conditions in Lebanon and particularly volatile and unpredictable security in Tripoli and economic pressures in North Lebanon,[1] and discussed this with the applicants during the hearing. It takes into consideration their responses, that Lebanon has a long history of conflict and they are familiar with and have lived through worse periods. It places weight on their evidence that their area is peaceful and the review applicant himself has travelled back there recently and experienced no issues. It takes into consideration and gives weight to the fact that the visa applicant has an established business for over 25 years and is doing very well economically. Finally the Tribunal has considered and gives weight to the visa applicant’s regular travel to Germany, Dubai and other countries and his current valid Schengen visa and accepts that if he were inclined to leave Lebanon he has had many opportunities to do so. For all of these reasons the Tribunal is not concerned that current country conditions in Lebanon are a factor that would discourage the visa applicants from complying with visa conditions given his particular family and economic circumstances.

    [1] See for example Department of Foreign Affairs and Trade Country Information Report Lebanon 23 October 2017, pp 9-10, 13-4.

15. The Tribunal has considered the fact that the review applicant and visa applicant are involved in similar lines of work and the possibility that the visa applicant will seek to engage in work in Australia.  The review applicant denied that he would do this, stating that he came previously and did not work and he does not need to work because he has a successful and profitable business at home.  Given the Tribunal’s favourable assessment of the applicants’ credibility, and lack of any contradictory evidence, it is satisfied the first named applicant will comply with conditions. 

16. The second named applicant is a 7 year old minor, and the Tribunal is satisfied that he will follow his father and depart within the period of the visa.

17. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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.

18. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend 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

19. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member