El Kassar (Migration)

[2021] AATA 5482

El Kassar (Migration) [2021] AATA 5482 (9 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khaled El Kassar

VISA APPLICANT:  Mrs Manal Al Kassar

CASE NUMBER:  2002784

HOME AFFAIRS REFERENCE(S):          BCC2019/6437050

MEMBER:Christine Cody

DATE:9 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 9 October 2021 at 8:57am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – no previous travel – intention to comply with visa conditions – incentives to return to Lebanon – family ties – newborn baby and young children – maintain clean record for future sponsorships – decision under review remitted

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 Home Affairs on 24 January 2020 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 2 December 2019. 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.

   The Department

4. The application forms and supporting documents provide the following relevant evidence. The visa applicant, Mrs Manal Al Kassar, is a Lebanese national, aged 43 years, who resides in Bebnine, Akkar, North Lebanon[1]. Her occupation is “housewife”. At the time of application, she had intended to visit her brother, the sponsor and review applicant, from 20 December 2019 to 20 March 2020, because her sister-in-law was due to give birth to twins in February 2020. The visa applicant provided a copy of her passport, her official Individual Civil Register, an official Family Civil Register[2] as well as a Hospital Certificate. Her brother will assist in meeting her expenses. She has not made any previous visa applications. The visa applicant’s husband and 8 children, 4 of whom are dependent (aged 4, 8, 13 and 16 years) will remain in Lebanon, as will her parents and siblings.

   [1] A copy of her Dwelling Certificate was provided.

   [2] This shows that the applicants are siblings.

5. The review applicant, Mr Khaled El Kassar, is a 36 year old Lebanese national. He is married and resides in Victoria. He is lawfully onshore holding a Partner (Migrant) BC-100 visa granted on 13 February 2014[3]. He has been the manager of a painting business for the last 4 years[4]. He provided a statutory declaration dated 28 November 2019 confirming that he seeks to invite his sister to visit for 3 months for emotional support, as he and his sister are close. He promises to return her to Lebanon within time and he will be responsible for her expenses and accommodation[5].

   [3] The visa grant and passport were provided.

   [4] Review applicant’s business ABN provided.

   [5] The review applicant’s bank statement (July-October 2019) was provided showing a balance of $1,700.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant intends to stay temporarily in Australia for the purpose for which the visa is granted. The decision was based on the following factors:

   ·While accepting family members will remain in Lebanon during her proposed visit to Australia, which could be some inducement to return to Lebanon, the delegate was not satisfied that their presence sufficiently demonstrates that the visa applicant intends a genuine temporary stay in Australia.

   ·The visa applicant indicated that she intends to travel to Australia for up to 3 months and that her reason for travel is to assist her sister-in-law during childbirth. The delegate considered that “the applicant’s personal circumstances for travel are inconsistent with the length of stay requested”, and the delegate had concerns that the visa applicant may intend to travel to Australia for reasons other than a genuine temporary stay.

   ·The visa applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in Australia or other countries, and has not demonstrated that she has previously travelled, complied with visa conditions and returned home, and the delegate was not satisfied that the applicant will comply with her visa conditions and depart Australia within the validity of her visa.

   ·Recent reports from the Department of Foreign Affairs and Trade state that North Lebanon is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and ongoing violence, and the delegate finds that the civil unrest in North Lebanon at this time may encourage the visa applicant to remain in Australia after the expiry of any visa, should it be granted.

7. The delegate considers that, individually, these factors may not appear significant. However, on balance, the delegate finds that the combination of these factors leads to the conclusion that the visa applicant’s expressed intention to visit Australia temporarily is not genuine, and the delegate is not satisfied that the visa applicant would comply with the conditions to which a sponsored family visitor visa is subject.

8. There are no non-disclosure certificates on the Department file.

   The Tribunal

9. The Tribunal was provided with a copy of the delegate’s notification letter, decision record and a review application form.

10. The Tribunal invited the review applicant to attend a hearing by MS Teams (during the COVID-19 pandemic) on 29 September 2021 to give evidence and present arguments. The Tribunal considered it was reasonable to conduct the hearing remotely during the period of the COVID-19 pandemic restrictions in NSW in September 2021. The review applicant appeared by video. The Tribunal also received oral evidence from the visa applicant in Lebanon (by telephone). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother who is a permanent resident. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

14. 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)). The review applicant said that his sister has never left Lebanon at all; Departmental records support that she has not visited Australia. Clause 600.211(a) is thus not relevant.

15. 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.

16. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

17. The review applicant informed the Tribunal that he has 7 brothers and 3 sisters, and his parents are still alive. All of his siblings live in Lebanon except for 2 brothers who married and now reside in Germany with their partners. The review applicant said that his wife’s father came to Australia a long time ago as he married an Australian citizen. None of his siblings have ever come to Australia before, although his eldest brother Ahmad had a visitor visa application which was rejected about 4-5 years ago.

18. The review applicant said that his sister would not work or study in Australia. She has never worked. She would not seek to stay in Australia because she has her family back in Lebanon. She has 9 children. She lives at home with her husband and 7 children. Two of their daughters got married and left the house. Living at home are her daughter aged 27 years, a son aged 22 years, a daughter aged 18 years, a son aged 14 years and another 2 little daughters aged 9 and 6 years (approximate ages). She has also given birth to a baby girl who is a few weeks old. Her husband used to be in the army but now he has retired. He received a lump sum in addition to monthly retirement pay. They are supported by his retirement pay; he will receive this for all his life and even if he passes away, the visa applicant will continue to receive that payment. Financially they are doing well. It was acknowledged that economic conditions in Lebanon are very bad, but they are not really affected.

19. When the visa applicant was asked about her financial circumstances she said that things are difficult in the country but in their particular situation they are doing well; they are supported by brothers in Germany and Australia and her husband’s retirement payment and her son is also working so in comparison to others they are doing well. When there are electricity blackouts they have a generator and as they live in an agricultural area, the food comes straight from the land, so they are better off than many others.

20. The review applicant said that his sister’s husband does not have any problems with the government or anyone else. The visa applicant is Sunni and she does not have any religious problems; she has a big family to look after so she doesn’t really have time to engage in political matters. She does not have any problems or any reason to want to stay in Australia.

21. The visa applicant confirmed that neither she, her husband nor family members have had any problems, be they religious, economic or social. She said that her husband’s family are all highly educated; they are engineers, doctors etc., down to a schoolteacher/ principal. They all have good records, and no one has any problems. She said that as a female she has not experienced any problems. She has been married 29 years, her relationship with her husband is good and life is peaceful in Lebanon.

22. The Tribunal asked the review applicant whether his sister would still come given that she has just had a baby who is a few weeks old. The applicants gave consistent evidence that it is essentially the review applicant who wants his sister to come; he does not have any family in Australia (although he acknowledged his wife has family here). He said that he has 5 children (the youngest are twins), his wife has had post-natal depression, she has also had to have surgery in her mouth to remove all her teeth and she has been feeling very down and depressed. It would be of great help if the visa applicant could come to Australia, as such a visit would really lift them up as they are all pretty down; her visit would change the mood in the house and it would make everyone “a bit cheerful”. She would not stay too long given her family circumstances.

23. The review applicant stated that if the trip could be delayed somewhat so the baby is a bit older, that would be better. He also asked if the visa applicant could bring the baby; the Tribunal said that it only has the visa applicant’s visa application before it. The Tribunal said it does not know when a visa would be granted or permission granted to travel given the current travel restrictions due to COVID-19, so by the time a visa is granted (if one is granted) the baby will be older. The Tribunal said that the presence of her young children remaining in Lebanon would appear to be a strong incentive for her to return to Lebanon.

24. The review applicant said that he can assure the Tribunal, as her sponsor, that she will comply with all visa conditions. He has no other family here and if she doesn’t comply, this would mean that he would be unable to sponsor anyone else, such as his mother. He wants to have a clean record with Immigration and not be blacklisted.

25. The review applicant said that he will cover all her expenses because he is well off and he has his own business and it is going well. He said that he would pay any amount as a bond. The Tribunal stated that it cannot impose a bond, but it can take into account such an offer. It noted, however, that his bank statements produced to the Department showed a balance of only about $1,700, and it asked how he would afford this.  He said that at the time he lodged the application his business was not doing so well, but now everything prospered. He said that he could show his tax returns and he is ready to offer $20,000 to $30,000.

26. In conclusion, the Tribunal found the applicants’ evidence to be credible. The Tribunal accepts that the presence of the visa applicant’s immediate family, including her newborn baby and young children, are a very strong incentive for her to return to Lebanon after a short visit to Australia. It also accepts that the review applicant is the only member of his family in Australia and he would like to be able to invite other members of his family to visit him, and he notes this will not be possible if his sister seeks to remain in Australia or otherwise does not comply with conditions of a visa. It accepts that the visa applicant is financially secure through her husband’s previous work in the military and support from family members including those overseas. It accepts that neither she nor her husband have had any problems in Lebanon, and it accepts the review applicant’s evidence that there would be no reason for the visa applicant to need to remain in Australia and to claim protection, and that if she sought to do so, such claims would not be truthful.

27. The Tribunal has also taken into account the review applicant’s offer of a bond of up to $30,000 and it considers this is an additional motivation for the visa applicant to return to Lebanon before the expiry of her visa.

28. The Tribunal finds that the visa applicant’s incentives to comply with the conditions of a visitor visa are greater than the incentives for her to remain in Australia. The Tribunal accepts the assurances by both applicants that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

29. For the above reasons the Tribunal is 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 met.

    DECISION

30. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Christine Cody
    Member