El Hawli (Migration)

[2019] AATA 2611

El Hawli (Migration) [2019] AATA 2611 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ihab El Hawli

VISA APPLICANT:  Mr Mohamad EL Hawli

CASE NUMBER:  1807651

HOME AFFAIRS REFERENCE(S):           BCC2018/28318

MEMBER:Denis Dragovic

DATE:21 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 June 2019 at 3:41pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – incentives to return to home country – security situation in northern Lebanon – claimed girlfriend in Lebanon – inconsistent evidence between visa applicant and sponsor – names of girlfriend’s parent – purpose of travel – visiting brother and his children – sightseeing – 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 February 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 2 January 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 they were not satisfied that family members who remained in Lebanon and the applicant’s employment in Lebanon provided sufficient reason for him to return and noted that the situation in northern Lebanon was precarious due to the ongoing Syrian conflict and would provide an incentive to leave.

5. The review applicant appeared before the Tribunal on 13 June 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.

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 his brother and seeing his brother’s children. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Claims and Evidence

9. The visa applicant is sponsored by his half-brother with whom he grew up with until the sponsor moved to Australia in 2006. The visa applicant has three brothers and one half-sister in Lebanon and a sister in Australia. The visa applicant’s father and mother remain in Lebanon. He lives with them along with his brothers in the family house in Tripoli.

10. The review applicant stated that his half-brother wanted to come to Australia because he travels a lot around Australia and the visa applicant, seeing the videos and photos he had posted on Snapchat and Facebook from his travels, wanted to visit Australia. The sponsor said that he had told the visa applicant that one day he would take him around with him and the visa applicant took up the offer.

11. When I asked the visa applicant why he wants to come to Australia he only responded to meet his brother and brother’s children. I asked if there was another reason he said no. I asked him to think hard about reasons he had discussed with his brother but he again only said that he wanted to see his brother and his children. 

12. The visa applicant explained that he works as a barber in Tripoli. He has worked in the same job for over three years. His motivation to return is driven by his boss giving him considerable trust at work.

13. The visa applicant does not have any dependents. He lives with his parents. It was claimed that he has a girlfriend, Fatima, and that they have been together for over three years. I asked the review applicant whether he had any photos of the couple to which he responded that there were none because although they are in love with each other it is not a legitimate relationship so they can’t publish any photos. I put to him that it’s strange that they wouldn’t have photos of each other, even if only as friends. The sponsor responded by saying that he didn’t ask his brother about why he doesn’t have photos. The sponsor did not know how the relationship started. I asked for any other details such as where she is from to which he said that same village, that they are ‘almost neighbours’. He claims not to have met her despite them being ‘almost neighbours’. He said that the name of the girl’s father was Halid and the mother Haldia.

14. I asked the visa applicant what would motivate him to return to Lebanon. He responded that it was his parents and family. Being the oldest among his siblings cultural obligations made it his responsibility to look after his father who was not in good health. He did not mention his girlfriend. I asked him why he didn’t mention her and he said that I hadn’t asked him and assumed that I would ask about it another time. I put to him that this is of concern.  He added that the major reasons are his family but she also comes into these reasons. When I asked about his girlfriend’s father’s name he said, Samir and her mother’s name was Leila.

15. I asked the visa applicant about the security situation and northern Lebanon and specifically whether it was a reason why he was looking to leave Lebanon. He said that Tripoli is far from Syria, the situation in northern Lebanon is very good and there is nothing to complain about. He added that the government has been protecting the community and in general the situation is good.

16. I read to him from the Department of Foreign Affairs report on Lebanon the following passage:

    Lebanon faces a range of security challenges. These include 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. The government maintains security checkpoints, primarily in military and other restricted areas.

    His response was that he hasn’t anything to do with all of the politics and his main concern is work and home life. 

17. The visa applicant has never travelled outside of Lebanon.

18. The sponsor noted that the visa applicant has never had trouble with anyone. Most of his time he spends with his friends. If he comes to Australia his motives to return are a serious relationship with a girl and being the oldest in family with the responsibility of taking care of his father.

19. The sponsor also added that he would be prepared to provide a bond.

20. I put to the sponsor two issues under 359AA. He chose to take an adjournment, which we did for 15 minutes. Upon return he answered the two questions.

21. The first being the inconsistency between his recollection of Fatima’s parent’s names and the evidence provided by the visa applicant. The sponsor said that he didn’t enquire about her family and that there are many Fatimas in his village and just assumed that it was the daughter of those parents. He said that appears that his brother is in love with another Fatima.

22. The second question was regarding the purpose of his travel to Australia. I noted that the sponsor had spoken of site seeing together while the visa applicant had only mentioned visiting his brother and the children. The sponsor said that since he came to Australia he has been running his own business and that this has prevented him from going back to Lebanon, so his brother misses him. There is so much in Australia that can’t be found in Lebanon and so the visa applicant took it for granted that he will be touring around Australia.

    Considerations

23. 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)). As the visa applicant has not travelled to Australia previously I place no weight on this aspect.

24. 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.

25. The visa applicant currently has a job as a barber, a claim that was supported by way of a letter from his employer, which I accept. He has no debts and owns a car in Lebanon. The sponsor stated that the visa applicant has money and will be responsible for himself.

26. The visa applicant does not speak English and has not shown any desire to study since he completed his education in Lebanon. I accept that the visa applicant does not intend to study or train in Australia for more than 3 months.

27. The Tribunal has also considered all other relevant matters as per cl.600.211(c).

28. It is concerning that the sponsor and visa applicant provided inconsistent information about critical issues such as details related to the visa applicant’s claimed girlfriend and the purpose of his visit. These are critical elements in determining whether the applicant genuinely intends to stay temporarily in Australia. I don’t accept the sponsor’s claim that he must have thought of another Fatima in the village. Considering that he believed his brother was in a serious relationship that had lasted for three years I do not accept that he would not know the family, especially considering that the girl is from the same village and according to the sponsor claimed to be a neighbour. This leads me to question whether the applicant actually has a girlfriend at all. This is important because a long term relationship is a large motivational factor for returning to a home country, but if this is a false claim and there is no relationship then there is less evidence to support a view that he would return.

29. Added to these concerns are the different answers given for the reasons why the visa applicant is planning to travel to Australia. The sponsor explained clearly that his brother’s motivation was spurred by the videos and photos he had taken while travelling around Australia. He explained that they had talked about doing similar trips. That the visa applicant would not mention anything about travel even when prompted to consider carefully any discussions he had with his brother is concerning.

30. These contrary claims are central to the question of whether the applicant intends to stay temporarily and weigh heavily against the applicant in my considerations. In addition, the applicant has no assets in Lebanon, has three grown siblings who can provide support to his father who is in ill health and the security situation as described by the Department of Foreign Affairs and Trade is precarious and as such a further motivational factor to remain abroad. Based upon the evidence provided it is only the separation from his family and his job as a barber with a boss that trusts him that would be a motivational factor to return. Overall I am 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

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

    Denis Dragovic
    Senior Member