Dannaoui (Migration)

[2018] AATA 5791

Dannaoui (Migration) [2018] AATA 5791 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Eid Dannaoui

VISA APPLICANT:  Mr Ghassan Dannaoui

CASE NUMBER:  1726899

HOME AFFAIRS REFERENCE(S):           BCC2017/3960679

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  29 November 2018

DATE OF WRITTEN STATEMENT:         6 December 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 06 December 2018 at 11:28am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – attend daughter’s engagement party – family migration history – past compliance with visa conditions – intention to comply with visa conditions – established life in Lebanon with many relatives – security situation in Lebanon – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 31 October 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 26 October 2017, the visa applicant—who is, at the time of this decision, a 58 year old national of Lebanon—applied for the visa. 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 review applicant is the visa applicant’s son; a 33 year old Australian citizen. He told the Tribunal that he had come to Australia in 2006 on a holiday visa and then later migrated by way of a partner visa.

5. The review applicant provided the Tribunal with a copy of the primary decision. 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

6. On 29 November 2018, the review applicant appeared before the Tribunal to give evidence and present arguments. Prior to the hearing, the review applicant informed the Tribunal that the visa applicant uses a voice box to communicate and that it may be difficult to communicate with him by way of telephone. Having heard the review applicant’s oral evidence at the hearing, the Tribunal did not consider it necessary to contact the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The review applicant was represented in relation to the review by his registered migration agent and the agent also attended the hearing.

7. At the conclusion of the hearing, the Tribunal gave its decision on the review. The following are the reasons for that decision.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. The visa applicant seeks the visa for the purposes of visiting his family in Australia, including his son, the review applicant. Originally he had wanted to attend the wedding of his great nephew but that event has passed. At the hearing, the review applicant explained that the visa applicant now wished to attend his daughter’s (the review applicant’s sister’s) engagement party on 26 January 2019. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Clause 600.211(a)

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).

12. The review applicant gave oral evidence that the visa applicant had travelled to Australia twice before and had not breached any conditions associated with those visas. The Tribunal notes that it has reviewed the visa applicant’s movement records which are on the Tribunal’s file. These records evidence that the visa applicant was granted a Sponsored (Visitor) (Class UL) visa on 1 June 2010. He arrived in Australia on 1 July 2010 and departed on 30 September 2010, prior to the cessation of the visa. There is no evidence before the Tribunal of any failure to comply with the conditions of the previous visa. The review applicant told the Tribunal that the visa applicant’s previous visit to Australia had been in around 1993 for three months. This visit is not recorded in the visa applicant’s movement record but the Tribunal is not troubled in this respect. It may be that electronic movement records do not extend back to that period.

13. The Tribunal also notes the review applicant’s oral evidence that, originally, he had travelled to Australia and returned to Lebanon before the cessation of that visa. The review applicant’s movement records which are on the Tribunal’s file support his claim.

14. The review applicant also told the Tribunal that his aunt—the visa applicant’s sister—had travelled to Australia about five or six times and had always returned back to Lebanon before the cessation of her visa. The Tribunal notes that the written submissions of 26 November 2018 name the visa applicant’s sister as Boudour Dannaoui. The Tribunal also notes that corroborating documentary evidence was filed in respect of Ms B Dannaoui’s entries into and departures from Australia. The review applicant told the Tribunal that both his aunt and his father had applied for visitor visas to attend his cousin’s wedding and that this aunt had been granted a visa whereas his father had not, even though his father had applied for a visa for a shorter time period.   

15. The review applicant gave oral evidence that his family members had all obeyed the law, including complying with visa conditions.

16. The Tribunal considers that this evidence supports the review applicant’s contention that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of visiting his children living here. The Tribunal gives weight to this evidence.  

    Clause 600.211(b)

17. 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).

18. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

19. There is no information before the Tribunal suggesting that the visa applicant would engage in any work in Australia or any study or training in Australia for more than three months. There is also no evidence before the Tribunal that the visa applicant would seek to apply for a substantive visa whilst in Australia. Based on the evidence before it, which is set out below, the Tribunal is satisfied that the visa applicant will not remain in Australia after the end of any permitted stay.

20. The Tribunal discussed the four conditions with the review applicant at the hearing. The review applicant gave oral evidence that he was honestly of the opinion that the visa applicant would comply with all conditions. He noted that his father had visited Australia twice and both times he had complied with the visa conditions and returned to his home in Lebanon.

21. The review applicant told the Tribunal that the visa applicant wished to enter Australia to visit his three children here—the review applicant and the review applicant’s sister and brother—and celebrate New Year’s Eve in Australia and attend the visa applicant’s sister’s engagement party on 26 January 2019. The review applicant also told the Tribunal that he was planning to take the visa applicant to Queensland.

22. When the Tribunal asked the review applicant about planned arrangements if the visa applicant were granted the visa, he said that the visa applicant would stay with him at his house in Roxburgh Park. The review applicant said that the visa applicant has sufficient money to fund the holiday and also noted that he and his (the review applicant’s) brother had money to further support the visa applicant if required.

23. The Tribunal notes that the review applicant filed evidence corroborating his sister’s plans to hold an engagement party on 26 January 2019 as well as updated financial evidence with the Tribunal, namely a bank statement for his personal bank account for the period 27 July 2018 to 26 September 2018 and his business bank account for the period 30 June to 28 September 2018. The Tribunal finds that the review applicant would be in a financial position to support the visa applicant during the term of a visitor visa, if required.

24. The review applicant told the Tribunal that, at present, his father was working as a supervisor. He explained that he had previously been a house painter but that he was not working in that role currently. He said that his father earned US$2,000 per month which he described as an above average salary given the cheaper cost of living in Lebanon. He said that his father owned his own car and was living in a rental property with one of the review applicant’s sisters and her family. The Tribunal notes that the applicants have not provided any up to date documentary evidence in respect of these claims as the letter from Lasacosh relating to the visa applicant’s employment, salary and permitted leave is dated 2 October 2017. Notwithstanding, the Tribunal accepts the review applicant’s evidence as it found him to be open and honest in providing his evidence.

25. The review applicant told the Tribunal that he genuinely believed that, if the visa applicant was granted the visa, he would return to Lebanon before the visa expired. He said that he believed that the visa applicant would do this for several reasons. He said that the visa applicant did not want to leave his country on a permanent basis but rather, that the visa applicant wished to die in Lebanon. He said that the visa applicant had an established life in Lebanon with many relatives (including two daughters and their children as well as siblings of his own) and friends there. He noted that the visa applicant played cards with his friends on a regular basis. He said that the visa applicant was particularly close to his four grandchildren with whom he lived; that he lived on a street that was named after the family and that he enjoyed his lifestyle of being able to go fishing and to the beach. He said that the visa applicant did not speak English and that a permanent move to Australia would be difficult for him and was not something that he actually wanted.

26. The review applicant told the Tribunal that he would really like the visa applicant to visit Australia in the summertime so that they could spend a happy time together and with other family members.

27. The Tribunal found the review applicant to be credible. The Tribunal considers the reasons provided by the review applicant for the visa applicant’s proposed visit to be plausible.

28. The Tribunal accepts that the visa applicant’s family ties in Australia provide some incentive for him to remain. However, the Tribunal considers that the visa applicant’s incentive to return to Lebanon appears greater. He has many family members and friends there and the evidence suggests that he enjoys a vibrant social life and comfortable standard of living in Lebanon.

    Clause 600.211(c)

29. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

30. The Tribunal notes that the delegate expressed concern that the security or economic situation in the country would act as a disincentive for the visa applicant to return to Lebanon. During the hearing, the Tribunal raised with the review applicant the information about Lebanon published by the Australian Government Department of Foreign Affairs and Trade (DFAT) on the Smart Traveller website.[1] The travel advisory states that travellers should ‘exercise a high degree of caution in Lebanon, due to the unpredictable security situation, the threat of terrorist attack and ongoing political and sectarian tensions’. It also states that ‘[h]igher levels apply in some parts of Lebanon’. The Tribunal also raised some information in DFAT’s country information report on Lebanon, specifically the statement that ‘DFAT considers that low levels of economic opportunity in certain areas of Lebanon act as a push factor for external migration’.[2] 

    1DFAT, Smartraveller, Lebanon, last updated on 22 June 2018, still current as at 28 November       2018.  

    2DFAT, DFAT Country Report Lebanon, 25 February 2014. While this is not the most recent country report on Lebanon, the Tribunal notes that a similar point was made in the most recent report, DFAT, DFAT Country Report Lebanon, 23 October 2017. In that report, DFAT stated, ‘[o]verall, DFAT considers that limited economic opportunity, exacerbated by the influx of displaced Syrians, is a push factor for external migration’.

31. When asked to comment on or respond to this information, the review applicant told the Tribunal that the security and economic situation in Lebanon would not be a reason for the visa applicant to breach his visa by seeking to remain in Australia after the permitted stay. He gave oral evidence that these particular issues did not affect his father. He said that his father was an educated man and was not involved with any party and that he lived in a quiet and wealthy area. (The Tribunal notes that the written submissions stated that the visa applicant had been a self-employed entrepreneur who had run a contract painting business for many years). The review applicant said that his father has a job, money, a car and his own social life. He told the Tribunal that, if his father had wanted to flee the situation in Lebanon, he could have done so in the past but that he had not done that because he did not want to migrate from Lebanon.  

32. Having had the opportunity of hearing the review applicant’s oral evidence, the Tribunal accepts his oral evidence that the visa applicant is not directly affected by the unpredictable security situation in Lebanon and enjoys a comfortable standard of living in Lebanon.

33. Even though the visa applicant is not directly affected by the unpredictable security situation in Lebanon, the Tribunal is mindful that, nevertheless, it may act as a disincentive for him to return there. However, the Tribunal notes DFAT’s assessment in its country report that, overall, the security situation in Lebanon remains ‘broadly stable’. The Tribunal considers that any residual concern about the unpredictability of the security situation is outweighed by other positive aspects of this case, as discussed.

    CONCLUSION

34. After considering all the evidence before it, including the visa applicant’s personal circumstances and the country information on Lebanon, on balance the Tribunal considers that the family, social and financial incentive for the visa applicant to return to Lebanon outweighs the family incentive for him to remain in Australia. Overall, having regard to the specific circumstances of this case, the Tribunal does not share the delegate’s concerns.

35. 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.

36. Given the circumstances in which the visa applicant’s daughter’s engagement party will be held on 26 January 2019 and the review applicant’s expressed desire for his father to visit Australia during the Australian summer and holiday period, any efforts that the Department of Home Affairs may make in expediting this case would be appreciated.

    DECISION

37. 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.

    Justine Clarke
    Member