Eid (Migration)

Eid (Migration) [2024] AATA 248 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Abdallah Eid
VISA APPLICANT:  Mr Mohamad Eid
CASE NUMBER:  2216211
HOME AFFAIRS REFERENCE:               BCC2022/4433638
MEMBER:L Symons
DATE:25 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 25 January 2024 at 4:41pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – past compliance with visa conditions – intention to comply with visa conditions – No Work condition – No Study condition – proposed financial arrangements – No Further Visa condition – No Further Visa condition – proposed length and purpose of visit to Australia – security situation in Lebanon – economic situation in Lebanon – visa applicant did not participate in hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 November 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied to the Department of Immigration (the Department) for the visa on 22 October 2022. 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.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because he was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 4 November 2022, the review applicant, who is the brother of the visa applicant, applied to the Tribunal for a review of that decision.
The review applicant appeared before the Tribunal on 18 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Elaine Kobeissi, the review applicant’s grandmother-in-law and Hicham Eid, the review applicant’s uncle. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant was represented in relation to the review by Mrs Nasrin Mazeh, the review applicant’s wife.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject, whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject and any other relevant matter.
In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted.
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.
In this case, there is no evidence before the Tribunal to indicate that the visa applicant has held a substantive visa in Australia or any subsequent Bridging visa.
The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. 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.
In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that he is married and has a step-daughter aged 7 years and three children of his marriage aged 3 ½ years, 15 months and 3 months. He and his business partner own a tree lopping business which they have had for 3 or 4 years. They sometimes employ one or two people depending on the work he has. He gets an income of between $80,000.00 and $100,000.00 per annum. He owns a car, business tools and joint savings of between $30,000.00 and $35,000.00. His wife is not in paid employment. She owns a car. He has no debts.
The review applicant gave evidence that the visa applicant is single. He works as a manager or supervisor for a young man named Nabil. He did not know the name of the business and thought that it may have been government owned. He did not know how long he had worked there and thought it was more than 2 years. When asked how he is paid (his wages), he responded that he did not know. He thinks he gets US$500.00 per month in cash. He will pay for the visa applicant’s airfare and living expenses in Australia and provide him with accommodation in Australia. The visa applicant has some savings and will bring some money with him but he does not know how much. He also owns a car. Their father is trying to buy him a unit. He has no debts.
The Department was provided with a title deed in the name of the visa applicant indicating that he owns property in Lebanon. It is dated 22 March 2022. The Tribunal raised as an issue with the review applicant that this document was not consistent with his evidence to the Tribunal. He responded that the visa applicant bought the land and he owns it. He offered no explanation for the inconsistency in his evidence.
The Department was provided with a confirmation of employment letter from Captain Express Cargo in relation to the visa applicant. It indicates that he is employed by that company as a warehouse supervisor, has been employed there since 2021 and is paid $500.00 (presumably per month). It indicates that he has 90 days leave to spend in Australia and the company will pay for “his fees, round trip and accommodation”. It indicates that he will return to his job after his vacation.
The Tribunal raised as an issue with the review applicant its concerns in relation to the visa applicant’s employment in Lebanon and why his employer would pay for “his fees, round trip ticket and accommodation” in Australia. The Tribunal also noted his inconsistent evidence that he would pay for his ticket and living expenses in Australia and provide him with accommodation in Australia. The Tribunal raised issues about the authenticity of this letter. The review applicant responded that the visa applicant is entitled to money for his annual leave. Maybe he has not had a holiday for 2 years. He thinks he still has more time he has not taken.
The Department was provided with a Bank Statement from the Blom Bank dated 5 October 2022 in relation to the visa applicant. It did not indicate that his wages were being deposited into this account. The Tribunal raised as an issue with the review applicant the lack of evidence that the visa applicant was receiving a salary. He responded that currently everyone in Lebanon is paid in cash. No one is dealing with banks there. If someone wants to transfer money into the bank it is paid out in local currency. When asked whether the visa applicant is issued a pay slip, he responded that he did not know but could ask him.
Despite having plenty of time to do so, the review applicant did not provide the Tribunal with any further evidence after the hearing.
The review applicant gave evidence that the visa applicant has no intention of working, studying or undertaking any training in Australia.
The visa applicant did not participate in the hearing. The Tribunal was therefore unable to obtain evidence from him or discuss his intentions with him.
The review applicant’s uncle, Hicham Eid, gave evidence that he was last in Lebanon about 3 years ago and met up with the visa applicant. He is working as a supervisor but he does not know whether that is at a hotel or restaurant. He owns a car. He does not know whether he owns any other property.
The Department was provided with a number of supporting documents in relation to the review applicant’s financial circumstances and the visa applicant’s financial circumstances including an ABN Lookup for Sydney Side Tree Solution from the Australian Business Register dated 18 October 2022, an ANZ Bank Access Advantage Statement dated 13 July 2022 for an account in the name of Mr A Eid showing a balance of $5,890.70, an Australian Securities & Investments Commission (ASIC) current company extract for Sydney Side Tree Solution dated 18 October 2022, an invoice dated 29 July 2022 billed to Fatima by Sydney Side Tree Solutions for $800, an invoice dated 8 July 2022 billed to Zlata by Sydney Side Tree Solutions for $3,100, an undated confirmation of employment letter from Captain Express Cargo in relation to the visa applicant, a Blom Bank statement dated 4 October 2022 for an account in the name of the visa applicant showing a balance of $9,572.00 USD, an ANZ Bank account summary dated 24 October 2022 for an account in the name of the review applicant showing a balance of $6,407.40, an ANZ Bank account history dated 24 October 2022 for an account in the name of the review applicant showing a balance of $6,407.40 and a Lebanese title deed in the name of the visa applicant issued on 4 January 2014.
The review applicant filed with the Tribunal a copy of the delegate’s Decision Record dated 4 November 2022 and a number of financial documents including an ANZ Bank statement dated 11 November 2022 for an account in the name of Mr A Eid showing a balance of $238.78, a Centrelink income statement for Miss Nasrin Mazeh dated 16 November 2022 and a Commonwealth Bank statement dated 30 June 2022 for an account in the name of Ms N Mazeh showing a balance of $107.98.
The Tribunal has considered the above documentary evidence in relation to financial circumstances.
In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the proposed length and purpose of his visit to Australia. The review applicant gave evidence that he thinks the visa applicant gets one month leave a year. When asked how long he would like to come to Australia, he responded that it depended how long he was given and he would stay here for whatever period of time he is given. When asked how long he would like to stay here, he responded about two to three months. When asked how he is able to take so much time off work, he responded that he did not know how much time he can take off work.
The Tribunal asked the review applicant why the visa applicant wishes to come to Australia. He responded that the visa applicant is his only brother. He has lots of children here and they would like to see him. He speaks to his children on the telephone. He cannot take his children to Lebanon. The Tribunal knows the situation in Lebanon. If he takes his children to Lebanon he does not know what will happen. There is no medicine in Lebanon. When asked what the visa applicant is planning to do during his time in Australia, he responded that he would show him around the country.
The Tribunal asked the review applicant how the security situation in Lebanon has affect the visa applicant. He responded that there was nothing before but he can see what has happened in Lebanon in the last 10 days. His family is in the north and far away from that.
The Tribunal discussed relevant country information on Lebanon with the review applicant and noted that the security situation in Lebanon is not good. The Tribunal referred to issues with Hezbollah and the large number of Syrian refugees in Lebanon.[1] The Tribunal referred to recent events in Israel and in Gaza, the involvement of Hamas and Hezbollah and the decline in the security situation in Lebanon. The Tribunal referred to the DFAT travel warnings in relation to travel to Lebanon and the Australian government offering to help with the voluntary departure of dependants of Australian officials posted in Lebanon to return to Australia.[2] The Tribunal noted that it is not a safe situation in Lebanon particularly for a young man like the visa applicant and that this provides a strong incentive for him to leave Lebanon and not return to that situation.
[1] DFAT Country Information Report on Lebanon, 26 June 2023.
[2] Smartraveller Australia, Lebanon. (Lebanon Travel Advice & Safety | Smartraveller)
The review applicant responded that he is a hundred percent sure that the visa applicant wants to go back (to Lebanon) at the specified time. He is “one thousand percent” sure. He requests that he be allowed to come to Australia for one month to see his children.
The Tribunal asked the review applicant how the economic situation in Lebanon has affect the visa applicant. He responded that it has not affected him personally. It has affected the whole society and people have adapted to it. They live with the situation. The Tribunal referred to country information that indicates that the economic situation in Lebanon is not good. The Tribunal noted that, according to the World Bank, the economic crisis has resulted in the Lebanese pound losing 98% of its value as of February 2023. Inflation was 171.2% in 2022 which was one of the highest of any country in the world. The Tribunal noted that the banking sector is insolvent.[3] The Tribunal noted that the visa applicant would be able to earn a lot more money in Australia than Lebanon. The Tribunal noted that these issues provide strong incentives for the visa applicant not to return to Lebanon at the end of a holiday in Australia.
[3] Lebanon: Normalization of Crisis is no road to Stabilization, The World Bank, 16 May 2023. (Lebanon: Normalization of Crisis is No Road to Stabilization (worldbank.org))
The review applicant responded that if the incentive was to make more money they could have applied for another visa for the visa applicant to come here and work. He is not coming to work or to study here; just to see family. He has only one brother.
The Tribunal asked the review applicant what incentives the visa applicant has to return to Lebanon at the end of the holiday. He responded that he is the only one with their parents. His father is ill and needs someone to stay near him to take him to hospital. When asked how, in these circumstances, he is able to come to Australia for two to three months, he responded that he has a sister there who can look after his father but not all the time. When asked what would happen if he came here, changed his mind and decided not to go back to Lebanon, he responded that he would not let him do that. He will not ruin his name in this country.
The Tribunal notes that the Department refused the visa applicant’s application for a Visitor visa because the delegate was not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the Visitor visa in granted. Despite being the best person to give evidence of his intentions, the visa applicant did not provide any written or oral evidence to the Tribunal. The Tribunal raised this this as an issue with the review applicant and he responded that he did not know that he could be a witness. He made the application (for review) on behalf of the visa applicant. He did not obtain immigration advice from a migration agent or lawyer.
The review applicant gave evidence that he is prepared to lodge a security bond to guarantee the visa applicant’s return to Lebanon at the end of his holiday. He is able to lodge $10,000.00 or $20,000.00 or $30,000.00 and forfeit his permanent residence if he breaches his visa. However, the bank statements he provided the Department and the Tribunal do not indicate that he has the financial capacity to pay the security bond he has proposed.
The review applicant and visa applicant’s paternal uncle, Hicham Eid, gave evidence that he last went to Lebanon about 3 years ago. He met the visa applicant during that visit. He is employed as a supervisor but he does not know whether it is at a hotel or restaurant. When asked whether he owns any property, he responded that he owns a car but he does not know if he owns any property. He knows that he wants to come to Australia to visit the review applicant’s children. He lives with his parents in Lebanon and wants to return to Lebanon.
The review applicant’s wife’s grandmother, Elaine Kobeissi, gave evidence that she has never met the visa applicant but he is a good man. He wants to come to Australia to visit the review applicant and his children. He works overseas and has a car and a house. The review applicant works here. He is a good man and has been working since came here.
The Department was provided with a number of supporting documents including the bio data page of the visa applicant’s Lebanese passport issued on 15 July 2022 and valid until 14 July 2032, an undated Lebanese family registration statement, a Lebanese identity card for the visa applicant issued on 18 January 2022, a Lebanese individual extract statement for the visa applicant dated 13 July 2022, a Lebanese Covid-19 vaccine card for the visa applicant issued on 28 June 2022, a Lebanese proof of residence for the visa applicant issued on 13 July 2022, a notification of visa grant for a Partner (Subclass 100) visa for the review applicant dated 22 December 2021, an invitation letter by Nasrin Mazeh dated 22 October 2022, the bio data page of Nasrin Mazeh’s Australian passport issued on 11 October 2016 and valid until 11 October 2026, a NSW Driver Licence for Nasrin Mazeh which expires on 17 May 2029, an invitation letter by the review applicant dated 18 October 2022, the bio data page of the review applicant’s Lebanese passport issued on 26 January 2019 and valid until 25 January 2024, a Lebanese penal record search for the visa applicant issued on 6 September 2022, a flight itinerary from Guildford Travel Centre for flights between Beirut and Sydney dated 21 October 2022, a receipt issued by the Australian Biometric Collection Centre to the visa applicant dated 25 October 2022 and a Lebanese title deed in the name of the visa applicant issued on 4 January 2014.
The Tribunal was provided with copies of the documents provided to the Department, the updated ANZ bank statement referred to above, the Department’s Decision Record dated 4 November 2022 and further evidence including a Centrelink income statement for Ms Nasrin Mazeh dated 16 November 2022 and a Commonwealth Bank statement dated 30 June 2022 for an account in the name of Miss N Mazeh showing a balance of $107.98.
Having considered all the evidence, the Tribunal accepts that the review applicant will pay for the visa applicant’s airfare and living expenses in Australia and provide him with accommodation in Australia. The Tribunal accepts that the visa applicant owns a car and has some savings. For the reasons given above, the Tribunal is unable to make any findings in relation to his ownership of real estate or his employment.

As the visa applicant did not participate in the hearing, the Tribunal was unable to discuss with him his ownership of real estate, his employment, why his employer, Captain Express Cargo, was going to pay for his holiday in Australia, why the review applicant needed to do so as well in those circumstances and his intentions if he came to Australia.
The Tribunal accepts that the presence of the visa applicant’s parents in Lebanon and the fact that he is their only son in Lebanon provide some incentives for him to return to Lebanon. However, the Tribunal notes that his sister will care for their parents in his absence. On the evidence before it, the Tribunal finds that the incentives for him to remain in Australia after the end of his permitted stay outweigh the incentives for him to return to Lebanon before the expiration of his visa. The Tribunal is not satisfied that the payment of a security bond will ensure his compliance with the visa conditions.
For the above reasons, 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
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
L. Symons
Member

ATTACHMENT
600.211
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
a)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; and
b)whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and
c)any other relevant matter.
600.231
The applicant intends to visit Australia:
a)to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or
b)for any other purpose that is not related to business or medical treatment.

[2024] AATA 248

25 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice