El Chami (Migration)

[2024] AATA 2228

El Chami (Migration) [2024] AATA 2228 (17 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bassam El Chami

VISA APPLICANT:  Mr Alaa El Chami

CASE NUMBER:  2304120

HOME AFFAIRS REFERENCE(S):          BCC2022/5427904

MEMBER:Moira Brophy

DATE:17 June 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 17 June 2024 at 1:30pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – incentives to depart or remain – previous compliant travel to Australia and other countries, and two visitor visa applications for Australia refused – recently married and wife pregnant – property and business – self-employment easily severable and skill set portable – sponsor working in same industry – three other siblings in Australia – offer of security bond by sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 Home Affairs on 28 February 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 15 December 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.

3. 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.

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 applicant intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 13 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Alaa El Chami.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review.

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

   Background

8. The  visa applicant is a 32-year-old male residing in Lebanon. He is a citizen of Lebanon.

9. At the time of application, the applicant stated he was living with his parents, He was not in a relationship and would be travelling alone, he had previously travelled to Australia, he had had two applications for visitor visas refused, he was self-employed selling spare parts, he was seeking to visit for a period of up to three months. The applicant stated he had his uncle and sister in Australia, and he had his parents, brother and three sisters in Lebanon.

10. The review applicant is the uncle of the visa applicant. He is an Australian citizen. He lives with his wife and three children in his own home. He is employed as a mechanic.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting his family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

13. 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)).

14. The review applicant told the Tribunal the visa applicant had previously travelled to Dubai, Turkey, Qatar and Oman. He said he had not been refused a visa by any country other than Australia and that he had always complied with the terms of his visa. When specifically asked if he had visited Australia, he said it was a very long time ago, she thought it was 2009.

15. The visa applicant told the Tribunal he had previously travelled to Dubai and Turkey. He had travelled to Dubai on three occasions and to Turkey once. He had recently been to Turkey for seven days and to Dubai for ten days as he had gone there on his honeymoon. When asked about previous travel to Australia he said he had been in Australia in 2009 and he had voluntarily returned to Lebanon. The only country to ever refuse him a visa was Australia.

16. On his application the visa applicant stated he wanted to visit Australia for a period of up to three months.  At the time of hearing the review applicant said he would come for three months, and the visa applicant said he would come for three months only.

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)). 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.

18. The Tribunal discussed with the visa applicant how he would arrange his employment during his proposed absence. He told the Tribunal his brother and cousin would conduct the business in his absence wife and sons would manage the business in his absence. The Tribunal is concerned that while the visa applicant is employed and earning an income in Lebanon his position would not be an incentive to return. Severance of this tie could occur with a minimum of difficulty and his professional skill set would be portable. The Tribunal was also mindful the review applicant was employed in the same industry.

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

20. In assessing intention, the Tribunal was mindful of the evidence given by the review applicant when asked if he would be prepared to post a security bond and if so for what amount. He was not hesitant in answering he would be prepared to post a bond of $50,000. The Tribunal noted his earlier evidence as to his savings. The Tribunal has taken this into account.

21. The Tribunal was mindful of the evidence given by the review applicant as to his circumstances. He resides with his wife, and three children in a home they own. He works full time as a mechanic. He has been with the same company for the past 22 years. In addition to his family home, he owns two cars. He has savings of $50,000.

22. The visa applicant gave evidence he lives with his wife. They married two months ago. He has now left the family home he had lived in with his parents and is living nearby in a house he owns. I addition he owns his shop where he conducts his business, another house and parcel of land and four cars. He has his own business in spare parts, and he also has a company importing cars from America. He has been in that business for the past eight years. When asked who would manage his business in his absence the applicant said his brother and cousin would. The applicant said his family and his business would be his incentive to return at the end of his stay in Australia.

23. The Tribunal also discussed with the review applicant its concerns that the visa applicant would not return to Lebanon at the end of his stay if the visa was granted. The Tribunal put to the review applicant that the sister of the applicant had previously entered Australia on a temporary visa and had applied for a permanent visa once onshore. In addition to this since the time of this application the two sisters of the visa applicant had come to Australia on temporary visas to study.

24. The Tribunal discussed with the review applicant the concerns of the Tribunal that this was really an application to obtain a migration outcome that allowed another member of his family to obtain residency in Australia. The review applicant stated the visa applicant would return home because of his family.

25. The Tribunal has carefully considered the decision and has taken into account the applicant’s personal profile, the circumstances of his family including the fact that since his application was lodged in December 2022 he has married and his wife was in the very early stages of pregnancy, the obvious bond he has with the review applicant, the fact he now has three sisters living in Australia and the fact he has previously been to Australia and loved the country but the Tribunal has also taken into account the migration history of other family members and the strong ties the applicant has to family in Australia. Given the matters discussed above the Tribunal has difficulty accepting that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

26. While the Tribunal has no reason to doubt the evidence of the applicant as to the incentives he has to return to Lebanon at the end of a stay in Australia and appreciates his wish to see and spend time with family members in Australia, that does not overcome the concerns of the Tribunal that the visa applicant will not return to the Lebanon at the end of his permitted stay.

27. For the above reasons, both singularly and cumulatively, the Tribunal is not satisfied that the 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

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

    Moira Brophy
    Member