El Sayah (Migration)

[2019] AATA 3230

El Sayah (Migration) [2019] AATA 3230 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Moemen El Sayah

VISA APPLICANT:  Ms Aisha El Sayah

CASE NUMBER:  1801169

HOME AFFAIRS REFERENCE(S):          BCC2017/4460835

MEMBER:Melissa McAdam

DATE:5 April 2019

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 05 April 2019 at 3:36pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuinely intends to stay temporarily – significant incentives to return to home country – security situation in applicant’s home area – savings and sufficient funds to support applicant during visit – applicant’s siblings have always complied with visa conditions – incentives for applicant to not breach visa conditions – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, 600.231, 600.612

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 12 January 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 25 November 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 visa applicant provided the following information in her visa application:

   a.She is a 23 year old single woman from Tripoli in Lebanon.

   b.She wished to visit Australia for up to three months between December 2017 and February 2018.

   c.Her parents live in Lebanon.

   d.Her brother, the review applicant, lives in Australia. He is an Australian citizen.  She has another brother, Mouayed, who also lives in Australia. He is an Australian permanent resident.  Her sister, Obayda, lives in Australia and is an Australian citizen.

   e.She will use her own funds during her stay in Australia. Her brother, the review applicant, will also support her while she is here.

   f.She was refused a Visitor visa in August 2017.

   g.She attached copies of the following documents to her application:

   i.Her Lebanese passport.

   ii.An ‘Employment Statement’ for her father.

   iii.Car registration in her father’s name.

   iv.Property Title Deed in her father’s name.

   v.Certificate from the Lebanese University recording that the visa applicant is registered at the university for the 2017-2018 academic year.

   vi.The visa applicant’s Academic Record from the University of Lebanon.

   vii.Her Bank Account statement showing a balance of $US1,791 on 31 October 2017.

   viii.A letter from the visa applicant in which she writes that she has not seen her sister in Australia for seven years; she has never met her brother’s children or her sisters-in-law; she is studying a Bachelor of Science, majoring in mathematics; her father is a registered taxi driver and owns his own vehicle; he owns the apartment in which she and her parents live; she takes care  of her mother and studies; she has medical insurance and a social security number; her father has opened a bank account for her and provides her with money to spend; she is the only child of her parents still living in Lebanon and is solely responsible for their care; and she would like to spend her university break on a holiday in Australia to see her siblings and their families.

5. The review applicant provided the following information in the visa application:

   a.The review applicant is the brother of the visa applicant.

   b.He is an Australian citizen.

   c.He works in construction.

   d.He attached copies of the following documents:

   i.His Australian Citizenship Certificate.

   ii.His Australian passport.

   iii.An extract of the Family Registration form from Lebanon.

   iv.His Bank account statement showing a balance of approximately  $34,000 as at 7 October 2017.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because recent reports indicated North Lebanon was experiencing an unpredictable security situation because of the Syrian conflict; the visa applicant had limited ties to Lebanon; her financial and economic circumstances were insufficient to demonstrate an incentive to leave Australia at the end of her proposed visit; and her family ties in Lebanon were outweighed by the presence of her siblings and their families in Australia.

   Information to the Tribunal

7. On 1 and 2 April 2019 the applicants submitted the following additional document copies to the Tribunal:

   i.The visa applicant’s father’s bank account statements.

   ii.A letter from the  Mayor of Iaal confirming the visa applicant’s father’s employment and property ownership.

   iii.An ASIC Certificate of Registration for a Metal Fabrication Company.

   iv.An ASIC Business Name  Registration for ‘KMS Metals Fabrication’.

   v.The review applicant’s Bank Accounts’ statements.

   vi.A Certificate of Registration and Attendance, dated 21 February 2019, from the Lebanese University Faculty of Fine Arts and Architecture, certifying that the visa applicant is registered at the Faculty and is in the first year of a Fine Arts degree.

   vii.An Attestation of Registration and Studies, dated 5 February 2019, from the Lebanese University, Faculty of Sciences, certifying that the visa applicant is registered in the first year of a Master’s degree in Mathematics.

   viii.Education qualifications and certificates for the visa applicant.

   ix.Passports, Australian Visitor visas, and Australian Entry Exit stamps for several relatives of the applicants.

   Tribunal Hearing

8. The review applicant appeared before the Tribunal on 5 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

9. The following is a summary of the information provided by the review applicant at the hearing:

   a.His sister, the visa applicant, would like to visit Australia between 1 August and 15 September this year.  She has university holidays then.

   b.She completed her Mathematics Bachelor Degree at university and is now in her first year of a Masters in Mathematics.  She has also started a Fine Arts degree at her university.

   c.The visa applicant is studying and living with her parents. They are financially supporting her while she completes her studies.  She helps her mother at home with the cooking and cleaning.

   d.She will return to Lebanon after visiting Australia because she will want to go back to her parents and to complete her degrees.

   e.The review applicant first came to Australia in 2009 for three months on a Visitor visa. He returned to Lebanon before the visa expired.  He next came to Australia in 2011 on a spouse/fiancé visa.  His sister Obayda also came to Australia on a spouse/fiancé visa.  Their brother Mouayed married in Lebanon and came to Australia on a spouse visa. None of them have ever overstayed a visa in Australia.

   f.The visa applicant has no plans to marry at this stage.  She wants to complete her studies and then work as a teacher in schools.

   g.The visa applicant is also a painter. In Lebanon she has exhibited her art works in galleries. She often visits art exhibitions with her friends.

   h.The visa applicant has no problems in Lebanon.  She is not involved in any political organisations.  She does not have any religious problems or problems with other religions.  She and her parents live in the suburb of Baab El Ramel. She has no enemies in Tripoli.

   i.The family want the visa applicant to visit Australia in August to September to spend the Eid Al Adha festival together.

   j.The applicants’ parents have not visited Australia because their Visitor visa applications were refused.  The review applicant really wants his parents to come here to visit and he will help them apply again, perhaps for only one of them to come at a time.  His parents are both well to travel.

   k.The review applicant is willing to lodge a security bond for his sister’s visit to Australia. If he loses a large sum of money it will cause him financial hardship because he is saving to buy a house for his family and to start a new business. He has a wife and young children so he has a lot of family expenses.

   l.He and his brother and sister in Australia have each visited Lebanon in recent years. They stayed at the family home in Tripoli.  His father owns two houses in Lebanon. While the review applicant was there he found the security situation very good. He could wander around the city freely.  He did not see any army presence in Tripoli.  There was only a checkpoint for cars driving to Beirut.

   m.If his sister visits Australia she will not breach any of her visa conditions. He gives his word on this. It will not be possible for her to stay here and stop his parents from ever visiting.  His young daughters have not yet been to Lebanon as it is too difficult for them to travel there because of school. It is easier if the visa applicant comes to Australia to see them.

   n.They plan for the visa applicant to stay at the home of their brother Mouyaed. Their sister Obayda lives in the same street and the review applicant lives close by too. When the visa applicant visits they can all go out together.

10. The following is a summary of the information provided by the visa applicant at the hearing:

    a.She will go back to Lebanon because she is enrolled in university there, pursuing a Bachelor degree and a Master’s degree. She likes painting and she is going well in university. She also has her Mum and Dad in Lebanon.

    b.She recently realised she has a talent in art so she has combined her maths study with art study. She can use her mathematics knowledge in her painting.  She plans to teach when she finishes her studies.

    c.She has no problems or enemies in Lebanon. She likes Tripoli and participates in many exhibitions there.  She sometimes goes with her friends to Beirut to visit museums.  She has no problem travelling between Tripoli and Beirut.

    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 purpose of visiting her siblings and their families in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).  The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.

14. 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.

15. The Tribunal accepts that the visa applicant will be accommodated and supported by her brother and other siblings while in Australia. The Tribunal accepts that the visa applicant and her father have personal savings and sufficient funds to support her during a visit to Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

16. The visa applicant is enrolled in two courses at the Lebanon University and progressing through her studies, conducted in the Arabic and French languages, in her home country. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

17. Condition 8503 refers to entitlement and is not a condition that involves compliance.

18. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

19. The Tribunal accepts that the visa applicant is a single woman from Tripoli in North Lebanon. The Tribunal accepts the visa applicant lives with her parents who reside in Tripoli. The Tribunal accepts that her parents are financially supporting the visa applicant while she studies. The Tribunal considers that the presence of the visa applicant’s parents in Lebanon represents significant incentive for the visa applicant to return there after a short stay in Australia.

20. The Tribunal accepts that the visa applicant is engaged in her studies in Lebanon and that she has a strong wish to continue and complete her studies. Given the language difficulties she would face in Australia, the Tribunal accepts that she needs to be in Lebanon to complete her studies as she would not be able to transfer easily, or necessarily successfully, to study here. The Tribunal accepts that the applicant’s wish to continue and complete her studies is further motivation for her to return to Lebanon after a short stay in Australia.

21. The Tribunal accepts that  the visa applicant has become a painter and she exhibits her art work in Lebanon.  The Tribunal considers the opportunity for her to further consolidate her skills and reputation as a painter in Lebanon is another reason for her to return to Lebanon after visiting Australia.

22. The Tribunal notes that the visa applicant’s three siblings have each travelled to Australia and that they have always complied with their visa conditions. The Tribunal gives substantial weight to the good migration history of the review applicant and his siblings in Australia. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to his family and relatives’ immigration compliance in Australia. 

23. The Tribunal notes the review applicant’s wish to sponsor his parents to visit Australia in the future.  The Tribunal considers this further motivation for him to ensure the visa applicant does not breach any of her visa conditions and that she departs Australia before the expiry of her visa. 

24. The review applicant has stated he is willing to lodge a security bond for his sister’s visit to Australia. The Tribunal considers that the detrimental impact of losing a large sum of money would be further motivation for the applicants to ensure the visa applicant complies with all her visa conditions in Australia and does not overstay.

25. The Tribunal acknowledges DFAT’s information about the security situation in North Lebanon. The Tribunal has not however located any information of recent security incidents or threats in the visa applicant’s home area. The Tribunal accepts that the review applicant and his siblings visit that area without any expressed fear of harm or danger. Neither the visa applicant nor the review applicant expressed any concerns or fears about the situation in Tripoli and both confirmed they can move about freely there.  On the basis of the information before it the Tribunal is satisfied that the security situation in the visa applicant’s home area would not cause the visa applicant to remain in Australia.

26. The information before the Tribunal indicates that the visa applicant intends only to visit Australia. 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

27. 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.

    Melissa McAdam
    Member