El Dayeh (Migration)

[2020] AATA 1619

El Dayeh (Migration) [2020] AATA 1619 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bader El Dayeh

VISA APPLICANT:  Mr Alaa Al Dayea

CASE NUMBER:  1831675

HOME AFFAIRS REFERENCE(S):          BCC2018/3037467

MEMBER:Margie Bourke

DATE:24 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 February 2020 at 10:58am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – employment and relationship in Lebanon – details of employment leave granted – previous compliant family visits to Australia – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 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 7 September 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 9 August 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 that the visa applicant genuinely intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 13 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter via telephone in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting family members, namely his uncle and sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. 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)).

10. The evidence before the tribunal is that the visa applicant has never travelled to Australia, and has never been the holder of an Australian substantive or bridging visa. The evidence before the tribunal is that the visa applicant has not travelled out of Lebanon. There is no evidence that the visa applicant has complied substantially or not complied substantially with any previously held visa.  I give this aspect no weight in my assessment of whether the visa applicant meets the requirements of cl.600.211.

11. 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.

12. The visa applicant stated he resides with his parents In Mechmech in the province of Akkar. I am satisfied, based on the information in the translated family registers, that the visa applicant is the son of the review applicant’s sister. The review applicant stated, and the family register records that the visa applicant also has four brothers who reside in Lebanon.  I accept the visa applicant has family ties in Lebanon, including parents and siblings.

13. I accept based on the evidence of the review applicant and the visa applicant that the visa applicant has a married sister in Australia whom he has not seen for four years.  I accept the review applicant is the visa applicant’s uncle who has resided in Australia for fourteen years, since the visa applicant was a child.  I accept the visa applicant last saw his uncle in mid  2019 when the review applicant returned to Lebanon for a visit. I accept the review applicant is married with three school age children and has his own business. I accept the visa applicant has family members he is close to in Australia whom he wishes to visit.

14. The visa applicant stated he is not married or engaged, but has a commitment, or connection to a person in Lebanon, and this is another reason he will definitely return to Lebanon.

15. The visa applicant stated he has employment in Lebanon. The visa applicant stated he did not intend to work, study or train in Australia.  He stated he only wished to visit and spend time with his sister and uncle, and then return to his employment and family in Lebanon.

16. The visa applicant provided a letter dated 23 June 2018, and translation, from his employer with his application for the visa.  The letter is written in Arabic, is not on letterhead but is stamped twice with “Star Tech Electronics”.  The stamp is a simple blue stamp.  The translated letter states the visa applicant has been employed since 1 March 2015 and is granted 45 days annual leave.

17. The visa applicant and the review applicant stated the visa applicant intended to visit for three months.  The visa applicant stated he had intended to come for one month, but the review applicant had told him that was not long enough so he had changed his intended length of visit to three months.  The review applicant also stated he had advised one month was not sufficient time for the visit. The visa applicant stated his employer had given him three months leave.  The review applicant stated this is not unusual for a valued employee.  The review applicant stated the employer might get someone to replace him for three months, but would keep the job for the visa applicant as a valued employee.

18. The visa applicant in answer to a question from the tribunal stated his employer’s name is Habbas Saloum.  He stated he had worked at the business for five years. He stated the business name is “Tetrno New”.  I discussed with the visa applicant that it concerned me that the name of the business and the length of leave granted as recorded in the letter he provided from his employer is not the same as the length of leave he states he has been given and the name of the business that he provided in his oral evidence. I discussed that I had concerns that the letter he had provided from his employer may not be genuine.

19. I also note that on the application form the visa applicant recorded his employer as Star Tech Electronics.

20. I asked the visa applicant if he had applied for six weeks, which is more consistent with 45 days of his annual leave.  The visa applicant stated he had applied for one month and then increased it to three months. I note that on the application form for the visa the visa applicant recorded his intended travel dates form 10 August 2018 to 25 September 2018, a period of six weeks, and ticked the box “up to three months” which is the shortest possible length of stay on the form.   I have not placed any weight on the visa applicant’s answer that he had applied for a period of one month, not six weeks, given the length of time since the application was made.  I accept the visa applicant initially applied for a shorter period, and now applies for three months.

21. The review applicant stated that the letter from the employer was old, and predated the visa applicant’s change of mind to lengthen to time of his stay.  The review applicant stated that maybe the visa applicant gave the name of a subsidiary company, instead of the main company.  I discussed with the review applicant that this had not been the visa applicant’s evidence, and there was no evidence to support his suggestion.

22. The review applicant requested time to provide evidence from the visa applicant’s employer in relation to the employer’s business name and the length of leave that had been approved for the visa applicant.  This was granted by the tribunal.  A date was set by which the information had to be provided, and I explained that if there was any difficulty the review applicant could apply for an extension of time, but had to do so by that due date.

23. After the hearing the review applicant provided a letter dated 13 February 2020, which was the translation and not the original, from the visa applicant’s employer stating the visa applicant has been working for the employer since 1 March 2015  and deserves a leave of three months and will return to work at the end of the leave.  The employer is named as “Techno New”.  There was no reference or explanation to the previous stamped name of the employer as Star Tech Electronics, or the increased leave from six weeks to three months.

24. I am not satisfied that the employer name or history as presented to the tribunal and department is reliable. I am not satisfied that the translated letters and the one original letter from the employer stamped Star Tech Electronics are reliable. I have considered that the visa applicant gave the tribunal a different name of his employer than that provided to the Department in the application form and letter from the employer, and subsequently provided a second letter from the employer to the tribunal using the different name of the employer in the letter.  The employer does not refer to the change of name in the second letter.  The employer does not refer to the approval of twice the leave for the visa applicant in the second letter. 

25. I have considered whether the visa applicant is employed as claimed, and I have considered whether the visa applicant has employment as an incentive to return to Lebanon before the expiration of his visa.  Further I have considered whether the visa applicant has the intention to work while in Australia as the holder of the visa.

26. I have assessed the evidence before me including the evidence provided in support of the application and the evidence at the hearing. I note the visa applicant states he intends to return to Lebanon before the expiration of the visa because of his employment, his family and his connection/commitment to a person, (who is possibly his girlfriend but this was not clarified).

27. I have assessed that the visa applicant has provided evidence of his employment and approved leave, and he claims that this is evidence of his incentive to return to Lebanon.  The evidence is dated 23 June 2018, and is not on letterhead but is stamped Star Tech Electronics. This name of the business was also recorded in the application form as the visa applicant’s employer. In the hearing the visa applicant stated he had worked for this business for five years but did not state the same name of the business: - he stated and spelt the business name to be Tetrno New.  (I assume the visa applicant misspelt this and meant to spell ‘techno’ not tetrno’.)  The letter from the employer stated the visa applicant had 45 days approved leave, and the visa applicant stated in the hearing he had obtained permission for three months leave. Subsequently the review applicant provided evidence that the visa applicant was employed by Techno New, and had been employed by this business since 1 March 2015. The visa applicant also provided evidence that his employer had now approved three months leave.  I have assessed the written and oral evidence provided by the review applicant.

28. I have assessed the evidence before me, and I am not satisfied the visa applicant is employed by Star Tech Enterprises or by Techno New (or Tetrno New).  I am not satisfied that the visa applicant has employment in Lebanon, and that he does not have the incentive of employment to return to Lebanon before the expiration of the visa. I am not satisfied that the visa applicant has the intention to comply with the condition not to work while in Australia as the holder of the visa.

29. I am not satisfied that the visa applicant has provided reliable evidence in relation to his intention to comply with the conditions to which the visitor visa may be subject.

30. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  I accept the review applicant sponsored his mother (who is now deceased) to visit him in 2013.  I accept the visa applicant’s sister sponsored her mother and another brother to visit her in 2017 when his sister was due to give birth to her child.  There is no evidence before me that these members of the family did not comply with the conditions of their visas. 

31. I have considered the evidence of the compliance of other members of the family in my assessment of whether the visa applicant genuinely intends to comply with the conditions to which his visa would be subject. However, I must assess the personal circumstances of the visa applicant, and the evidence provided in relation to this application for the visa and this review.  

32. For this reason, I am not satisfied the visa applicant intends to comply with the conditions to which the visitor visa may be subject.

33. 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

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

    Margie Bourke
    Member