El Chakik (Migration)

[2019] AATA 5358

El Chakik (Migration) [2019] AATA 5358 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zaher El Chakik

VISA APPLICANT:  Mr Mazen SAFI

CASE NUMBER:  1803387

HOME AFFAIRS REFERENCE(S):         BCC2017/4009906

MEMBER:Meena Sripathy

DATE:23 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2019 at 11:08am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream –– does not genuinely intend to stay temporarily in Australia – failed to disclose brother in Australia – brother came to visit Australia and remained – incentives to remain in Australia – family – dire economic and security conditions in Lebanon – young age – single status – previous visa applications refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 4 December 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 27 October 2017. 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’s intention to only visit Australia was genuine.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa applicant is a 30 year old single man from North Lebanon. He has parents, two sisters and two brothers living in Lebanon. He is employed as an Inspector at a company for the past 5 years and 9 months.  He was refused applications for visitor visas in 2012 and 2014.  He seeks to come to Australia to visit his aunts and uncles and their families.  The visa applicant is sponsored by the review applicant who is his uncle, an Australian permanent resident.

7. The visa applicant provided the following documents in support of his application: his passport; the review applicant’s passport evidencing his permanent residency visa label; visa applicant’s bank statement; family registrations evidencing the relationship between the visa applicant and review applicant; letter from visa applicant’s employer. 

8. No further evidence was provided to the Tribunal prior to the hearing.

   Tribunal hearing

9. The review applicant appeared before the Tribunal on 11 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

10. At the hearing the review applicant told the Tribunal he lived in a rented home with his wife and three children.  He has his own poultry delivery business, employing one worker, and also works as a truck driver. The visa applicant is his nephew, the son of his sister. In Australia he has two uncles and an aunty, one brother (Mohamad) and one sister (Wahibe), who each have their own families. These relatives have all been in Australia for more than 20 years. 

11. The review applicant himself came to Australia in 2008 to marry his spouse.  He is still with the same spouse, with whom he has had three children. In Lebanon, he has his parents and three sisters.  His sister Loujaina, the visa applicant’s mother, has two sons and two daughters. One son, Wael, passed away last year in a work accident.  The other son, Wiam (the visa applicant’s brother) came to Australia two or three years ago, sponsored by the review applicant’s sister Wahibe.  He is still in Australia, in Melbourne.  He had some problems in Lebanon and could not return. 

12. The review applicant said his sisters, Abir and Safaa, have two daughters and a daughter and son, respectively, who all reside in Lebanon.

13. The visa applicant, Mazen, is unmarried, but he has a girlfriend.  They are not yet engaged but the relationship is serious.  As far as the review applicant knows, he has not made any plans to marry. He lives with his parents and one sister. He works in a government type job, similar in function to the RTA, doing motor vehicle inspections. He has held the same employment for the past 8-9 years. It is a stable and well paid job.  He earns about $900 per week. He owns his own car, and has built an apartment on the floor upstairs on his father’s property, which he intends to live in after he marries. Apart from his work and his family, he has no other commitments in Lebanon. The visa applicant is the only son now in his family in Lebanon and therefore he is responsible for his parents.  His parents have visited Australia and returned.  The review applicant provided copies of the stamps in their passports.  The visa applicant’s father visited in 2008 and his mother in 2016. 

14. The Tribunal put to the review applicant that the information he provided earlier about the visa applicant’s brother coming to Australia to visit and remaining here may lead it to have concerns that the visa applicant will do the same. In response the review applicant said he would not allow him to do that, because the review applicant has his parents in Lebanon and wants to be able to bring them to Australia in future for visits.

15. The Tribunal discussed with the review applicant independent information before it about the economic and security conditions in Lebanon as a result of pressure on the north due to the influx of Syrian refugees and the ongoing conflict there, and that limited economic opportunities in this context has been identified as push factor for external migration. It put to the review applicant that the combination of the visa applicant’s age and single status, adverse visa history of his brother and this independent information concerning country conditions, could lead it to find the visa applicant may be discouraged from returning. In response the review applicant said that he is prepared to provide a bond to guarantee the visa applicant’s will return, also he has a stable and ongoing job there and is covered by medical insurance and he has obligations to look after his parents and these are the reasons he will go back.

16. The Tribunal also noted that the visa applicant did not mention at Q22 on his application form that his brother Wiam was in Australia, referring only to the review applicant and his other uncle and aunty, and this failure on his part to disclose this information may add to the Tribunal’s concerns. In response the review applicant suggested that the timing of Wiam’s arrival to Australia and decision not to return may have post dated the visa application, but he is not sure. The Tribunal indicated it would look at the records to see if this was correct. 

17. The Tribunal put to the review applicant a further concern it had that the visa applicant may seek to work in Australia and the review applicant being self employed gives him an employment option.  In response the review applicant said he would never allow the visa applicant to work for him here.  He has no need to do that as he has a stable and well paid job and he only wants to come for a holiday. The review applicant stated that the visa applicant only wishes to visit his relatives in Australia so they can repay the hospitality he has shown his relatives when they visit Lebanon. 

18. The Tribunal took oral evidence from the visa applicant by phone.  He confirmed the relationship to the review applicant as his uncle.  He seeks to visit Australia to see his extended family there.  He said he lives with his parents and sister in their house. He has built a floor above which he intends to live in, in the future after he is married. The visa applicant said he has a girlfriend since the beginning of this year. The relationship is serious and his family know about her.  They have discussed getting engaged, but have not yet.  He said he is considering getting engaged after his visit to Australia. For now she is just his girlfriend.

19. The visa applicant works as an inspector of motor vehicles, assessing whether they are road worthy.  He has been in the same job since 2012.

20. The Tribunal asked the visa applicant whether any of his relatives have come to Australia recently. In response he referred to an uncle who comes and goes from time to time, and his mother came in 2016.  When asked if anyone else had come in the past 2-5 years, he said no.  When asked if his brother had come, he initially said no.  Then when asked again, about Wiam, he said yes, he came about 2 years ago and did not return.  The visa applicant said Wiam was not living with them before he went to Australia. He was living about 20-30 kilometres away near Tripoli. He has some issues with his parents. The visa applicant said he does not know what it was about. He said they do not get along and are not close so he does not know much about it. 

21. The Tribunal put to the visa applicant that it may have concerns about whether he too will comply with the visa conditions and whether his intentions to only visit temporarily are genuine.  In response the visa applicant made the following points as to why he would not breach the visa conditions:  his brother had issues with his family and he has nothing to do with his brother; Australia is a just country; he has a stable and good job since 2012 and wouldn’t want to jeopardise the job by staying longer in Australia; he has responsibilities to look after his parents because Wiam is here and they lost another brother last year so he is the only one left to support them; he is sponsored by his uncle and would not disappoint him; his uncle wants to be able to sponsor his own parents in future; they are prepared to provide a bond to guarantee his compliance; he has a girlfriend to return to and doesn’t want to break her heart.  The visa applicant asked the Tribunal to please differentiate him from his brother.

22. On 15 July 2019 the review applicant provided the Tribunal a copy and translation of a death certificate evidencing the death of the visa applicant’s brother, Wael, in August 2018. 

    CONSIDERATION

23. 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.

24. In the present case, the visa applicant seeks the visa for the purposes of visiting his uncle and relatives in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

25. 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)). However, as the visa applicant has not previously travelled to Australia there is no personal migration history for the Tribunal to consider.

26. The Tribunal notes the visa applicant’s evidence (confirmed in Departmental movement records) that his parents have previously visited Australia and departed within the period of the visa.  It also notes the review applicant’s evidence that the visa applicant’s brother, Wiam was sponsored by his sister to visit a few years ago, and arrived but did not return. It observes the visa applicant failed to mention his brother’s presence here in his application lodged on 27 October 2017.  When this was put to the review applicant as a possible concern, he suggested the visa applicant may not have known at that time that his brother overstayed the visa.  Department movement records indicate Wiam’s arrival at the end of  August 2017 and he was granted a bridging visa E in November.  Taking into consideration this timing and the evidence that Wiam was living separately from the family prior to his departure from Lebanon, the Tribunal is prepared to accept as possible and plausible that the visa applicant may have been unaware that Wiam had remained in Australia at the time the present application was made. However, it is not convinced that he would not have subsequently known about this and the Tribunal considers Wiam’s adverse visa history is significant and relevant to the assessment of the visa applicant’s intentions and likelihood of compliance with visa conditions, discussed further below.

27. The Tribunal must 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.

28. The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the evidence before it, the Tribunal makes the following findings about the visa applicant’s circumstances. He is a single, unmarried man, living with his parents in the family home.  It accepts that he has a girlfriend but is not engaged to be married at this time.  He has two sisters, parents and other extended relatives in Lebanon.  The Tribunal accepts that one of his brothers passed away last year and the other brother is presently in Australia, having travelled to Australia on a visitor visa in 2017.  He is therefore the only son in his immediate family remaining in Lebanon.  He has a stable and ongoing job, and has been in the same employment since 2012. He has built a floor above his parents home which he intends to live in after marriage. In Australia, the applicant has two uncles, an aunty, their families and his brother who has remained in Australia following his entry in 2017.

29. On the basis of the above findings, the Tribunal accepts the visa applicant has family ties and stable and ongoing employment in Lebanon and these are factors that would encourage his return following a visit. However, his age, single status and extended family network in Australia are also significant factors that may encourage him to remain in Australia.  Independent information before the Tribunal regarding the economic and security situation in North Lebanon is also a factor the Tribunal considers may discourage the applicant from returning. DFAT’s most recent Country Information Report on Lebanon[1]  indicates that the Syrian civil war has had a major impact on the Lebanese economy, with the influx of Syrian refugees heightening competition for jobs and public services and, together with other structural weakness that predated the conflict, has had the effect of showing economic growth to 1-2% between 2011 and 2017.  DFAT considers that this limited economic activity, exacerbated by the influx of displaced Syrians is a push factor for external migration.  Additionally the country information indicates Lebanon faces a range of security challenges including external threats related both to the conflict in neighbouring Syria and to tensions between Hezbollah and Israel; threats of terrorist attack from internal and external actors; politically-motivated violence due to civil unrest; and occasional incidents of communal violence. 

    [1] DFAT Country Information Report Lebanon March 2019, paragraphs 2.11, 2.13, 2.43

30. As mentioned above, the Tribunal considers the visa applicant’s brother’s arrival relatively recently, and decision not to return, is relevant and significant to its assessment of the visa applicant’s intentions.  There is no specific explanation before the Tribunal as to how the visa applicant’s  circumstances can be distinguished from that of his brother, and therefore the Tribunal finds their similar profiles as young men of working age, from the same area, with a family network in Australia, and the closeness in time of his action, leads it to have concerns that the visa applicant may have the same intentions of not returning following his visit.

31. Weighing all of the above, placing significant weight on the visa applicant’s brother’s relatively recent adverse visa compliance history, together with the independent information concerning economic pressures and the unpredictable security situation in North Lebanon and the region generally; the visa applicant’s age; the fact that he does not at this time have a partner or dependents to return to and he does not appear presently to have a compelling reason or purpose to visit Australia at this time, leads the Tribunal to conclude that it is not satisfied his intentions to only visit Australia is genuine.    

32. The Tribunal has considered whether requesting a security would make a difference to its concerns about compliance with conditions, and acknowledges that the review and visa applicant have indicated that they are prepared to provide a financial security to ensure compliance, but given the recent adverse history of his brother, the Tribunal is not convinced that the forfeiture of a financial security would be a strong incentive for the visa applicant to comply in this case.   

33. For the above reasons the Tribunal is not satisfied, on the evidence and visa applicant’s circumstances at this point in time,  that he 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

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

    Meena Sripathy
    Member