El Arja (Migration)

[2020] AATA 6067

El Arja (Migration) [2020] AATA 6067 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nabil El Arja

VISA APPLICANT:  Mr Ahmad El Arja

CASE NUMBER:  1826189

HOME AFFAIRS REFERENCE(S):          BCC2018/2781628

MEMBER:Hugh Sanderson

DATE:7 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 7 December 2020 at 11:04am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visa) – Sponsored Family stream – genuine temporary stay criterion – economic situation in home country – lack of documentation and any current evidence – decision under review affirmed

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 20 August 2018 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 25 July 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 (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 visa applicant genuinely intended to stay temporarily in Australia.

   Background

5. The visa applicant is a citizen of Lebanon and is currently 35 years old. He is employed as a lawyer and lives in Tripoli. His parents and three sisters and one brother continue to live in Lebanon. He has two sisters and a brother who live in Australia. In his application he stated the purpose of the trip to Australia was to visit his family members. He has previously travelled to Australia on two occasions on Tourist visas. He first travelled to Australia on 8 July 2007 departing on 6 October 2007. He then travelled to Australia on 28 January 2010, departing on 28 April 2010. There is nothing to indicate that he did not comply with all conditions of the visa is granted to him.

6. The review applicant is the brother of the visa applicant. He travelled to Australia in 2003 and 2005 on tourist visas. There is nothing to show that he did not comply with those visas. He was granted a Subclass 300 Prospective Marriage visa in 2006 and has lived primarily in Australia since July 2006. He was granted a Subclass 801 Partner visa in 2009. He is an Australian citizen. He has two sisters who also reside in Australia after being granted Partner visas.

7. The delegate who considered the application noted the following:

   ·There has been increasing disturbances in civil and political life in Lebanon, and in particular in Tripoli where the visa applicant lives, which would provide a significant incentive for the visa applicant not to return to Lebanon;

   ·Although the applicant’s parents and four siblings live in Lebanon, there is nothing to indicate that he has any close ties with his family or that they would provide an incentive for him to return to Lebanon;

   ·The visa applicant has previously travelled to Australia, however, the social and political situation in Lebanon has deteriorated since then;

   ·The visa applicant is working in Lebanon, but this would provide little incentive for him to return at the end of any visit to Australia; and

   ·The visa applicant has a number of family members who reside in Australia.

8. Taking these matters into account, the delegate was not satisfied the visa applicant genuinely intended to remain temporarily in Australia for the purpose for which visa would be granted. The delegate found the applicant did not meet the criteria in cl.600.212 and refused the application.

9. The review applicant appeared before the Tribunal on 17 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

10. The review applicant said that apart from himself he has two sisters who live in Australia and lots of uncles, aunts and cousins. He said that his sisters had previously sponsored the review applicant to come to Australia on the Visitor visas which were granted to him. He said that his father, mother and sister have also been granted visitor visas to enter Australia. He believed that they complied with their visas. He said that his father remained in Australia for about one year. He said that nobody from his family had come from Lebanon on a Visitor visa to Australia for some time.

11. The review applicant said that his brother was not currently working due to the slowdown in the economy caused by the COVID-19 pandemic. He wasn’t sure when he had stopped working. He said that his brother had just got married last Sunday and all his family in Lebanon had attended the wedding. He said that before the marriage his brother had been living with his parents, but has now moved to a home to live with his wife.

12. The review applicant said that he was not sure if his brother wanted to visit Australia now that he was married because he had not spoken to his brother about this. He said that his brother was not aware that hearing was being conducted and was not expecting the Tribunal to telephone him to talk about the application.

13. It was agreed that the Tribunal would not call the visa applicant and, if the visa applicant did not want to pursue the application any further, the review application would be withdrawn. The Tribunal noted that as the visa applicant was not working and there was no information about his financial situation it would make it difficult to find that he genuinely intended to remain temporarily in Australia.

14. The Tribunal wrote to the applicant on 19 November 2020 as follows:

    As discussed at the hearing, it was decided that it was not of any benefit to speak to your brother, the visa applicant, as it was 5:30am in Lebanon and, as your brother was not aware that the hearing was being conducted, he was not expecting any telephone call. It is noted that you are not sure if your brother still wishes to visit Australia for three months as he applied to do so in his Visitor visa application in light of the fact that he has just got married, and you have not spoken to him about the application recently.

    The circumstances of your brother have changed significantly. Apart from the bar on any international travel to Australia caused by the COVID-19 pandemic, your brother’s situation has changed with the loss of his work and his recent marriage. No updated documentation or information has been provided about your brother’s current situation including his financial position. It is noted that you have not spoken to your brother as to whether he even wishes to visit Australia at this time in light of the fact that he was just married. There is no application for his wife to visit Australia and, if your brother was granted a visa and she wished to accompany him to Australia, she would need to apply for a Visitor visa separately.

    Due to the significant change in your brother’s situation, and as it appears unlikely that international travel to Australia will resume within the next 12 months, you may decide it  would be best to withdraw the review application. This will end the current application but will not stop your brother from applying for a Visitor visa in the future. Whether that visa is granted will be a matter for the Department, however, if you provide updated details of your brother’s situation, and in particular, the circumstances of his marriage and financial situation, he may be granted a Visitor visa.

    Alternatively, if you do wish to proceed with the application you will need to provide further documentation in support of the application. This would include your brother’s marriage certificate, details of his financial affairs including any employment he has or, if he is unemployed, details of when he was last in paid employment. He should also provide details of the plans he has and what he intends to do if he is granted the visa.

    The Tribunal will then arrange a further hearing where you will again attend by a video MS Teams meeting. Your brother would be required to attend by telephone. In the circumstances, you may prefer to simply withdraw the current application, and then your brother could apply for a new Visitor visa when the international travel restrictions have been withdrawn and you are sure he wants to visit Australia. If you do wish to withdraw the current application, please sign the attached Withdrawal and return it to the Tribunal.

    Please advise the Tribunal as to whether you wish to withdraw the review application or pursue it by providing the suggested further documentation no later than Thursday, 3 December 2020. If no response is received from you by that date the Tribunal will assume that you do not wish to provide any further documentation to support the application and do not require a further hearing before the Tribunal. The Tribunal will then proceed to a decision on the information it currently has before it.

    As stated above, you must respond to this letter no later than 3 December 2020 and if no response is received by that time the Member will proceed to a decision without taking any further action or listing the matter for further hearing.

15. At the time of this decision, the Tribunal has received no response or any further information from the review applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. In the present case, the visa applicant seeks the visa for the purposes of of visiting his Australian citizen brother. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

19. 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)).

20. The visa applicant has previously travelled to Australia in 2007 and 2010 on Tourist visas. There is nothing to indicate that he did not comply with the visa is granted to him at that time.

21. 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.

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

23. When the Tribunal invited the review applicant to the hearing, the Tribunal specifically asked for the visa applicant to attend the hearing. At the hearing, the review applicant stated that he had not spoken to the visa applicant for some time and the visa applicant was not aware of the hearing or expecting any call to be able to give evidence to the Tribunal. The evidence of the review applicant was that the circumstances of the visa applicant had significantly changed. This included the fact that the visa applicant was no longer working due to the economic situation in Lebanon, and in particular the economic slowdown caused by the COVID-19 pandemic. He stated that the visa applicant had recently married, but was not able to provide any details with regards to this, including providing the marriage certificate. He stated that he was not even sure if the visa applicant wished to travel to Australia.

24. The review applicant was invited by the Tribunal to provide further information to support the visa application. No further information has been provided as to the visa applicant’s current circumstances. The review applicant has not requested a further hearing before the Tribunal. The Tribunal has advised the review applicant that unless further information was provided it would proceed to a decision in the matter without any further hearing.

25. Without further information from the visa applicant, the Tribunal cannot be satisfied of the visa applicant’s intentions both in his coming to Australia and any intention to depart Australia. It appears the circumstances of the visa applicant have significantly changed since the application was first made. Those circumstances may indicate that the visa applicant does genuinely intend to remain temporarily in Australia. This is particularly so with regards to the fact that the review applicant states the visa applicant is now married. If this evidence was provided with appropriate documentation, then it may be that a decision-maker may be satisfied that the visa applicant does intend to remain temporarily in Australia. At this time, however, with the lack of documentation and any current evidence from the visa applicant or even if he wishes to travel to Australia the Tribunal cannot be satisfied that the visa applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

26. 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

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

    Hugh Sanderson
    Member