ELIAS (Migration)

[2017] AATA 231

ELIAS (Migration) [2017] AATA 231 (8 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Caroline ELIAS

VISA APPLICANT:  Mr Elias ELIAS

CASE NUMBER:  1607302

DIBP REFERENCE(S):  BCC2016/694807

MEMBER:Louise Nicholls

DATE:8 February 2017

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 08 February 2017 at 4:56pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Young Maronite Christian – Strong family record of visa compliance – Steady employment record – Incentive to return

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.211, 600.231, 600.612

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant, Elias ELIAS is a citizen of Lebanon and is 23 years old. The visa applicant’s sister, Caroline Elias (29 years) is seeking a review of the decision made by a delegate of the Minister for Immigration on 21 April 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). Ms Elias is the sponsor and review applicant in this review.

2. The visa applicant applied for the visa on 12 February 2016. He provided a number of documents to support his application, including,

   ·Copies of the bio data pages of the review and visa applicants’ passports.

   ·Copy of the visa applicant’s Lebanese family register- January 2016.

   ·Statutory declaration made by the review applicant on 11 February 2016.

   ·Letter from Father Abboud of the Maronite Cathedral in Harris Park Sydney-1 February 2016.

   ·Event booking details and receipt for the review applicant’s son’s christening- February 2016.

   ·The review applicant’s husband’s St George Bank Statement –February 2016.

   ·Visa applicant’s Credit Libanais bank account statement–January 2016.

   ·Letter from the visa applicant’s employer confirming his employment and leave entitlements Jan 2016.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of visiting his sister and her family. The delegate was concerned with the visa applicant’s lack of dependent family ties in Lebanon, his weak employment incentives and the unpredictable security situation in Lebanon.

4. This is an application for review of that decision and it was lodged on 23 May 2016. The review applicant provided a copy of the decision record with the application. The review applicant was represented in relation to the review by her registered migration agent.

5. On 8 November 2016 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 December 2016. The Tribunal also invited the review applicant to provide further information on the migration history of her family members, updated information about the visa applicant’s employment and financial situation and other relevant information.

6. On 24 November the review applicant provided a number of documents, including, the visa applicant’s family register which lists his parents details and the details of his six brothers and sisters.

7. She also provided copies of the passports, Australian visa endorsements and arrival and departure stamps for her mother Viviane Bou Mehri and her siblings Kozhaia, Aida and Hanna Elias.

8. She also provided an updated letter (18 November 2016) from the visa applicant’s employer, Fadi Yammine (Architect) who stated that the visa applicant had been employed as a cement renderer for 5 and a half years and had his permission for the applicant to take up to 3 months leave.

9. On 25 November 2016 the review applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

    CONSIDERATION

11. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

12. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

13. 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.

    Background

14. The review applicant is 29 years of age and came to Australia as the holder of a temporary partner visa. She was granted a permanent residence visa on 23 June 2014.

15. The review applicant’s parents live in Lebanon. She has six brothers and sisters, including the visa applicant. Apart from the review applicant her siblings live in Zghartaghrine in north Lebanon. The review applicant and her family are Maronite Christians.

16. The visa applicant is 23 years of age and has been employed as a cement renderer for an architect in Tripoli for the past 5 and half years.

    Purpose and Duration of Visit

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

18. The application form indicated that the visa applicant was seeking to visit for a period of up to 3 months.

19. The purpose of the visit planned for April 2016 was so that the visa applicant could attend his nephew’s christening; however, this event appears to have passed. Nevertheless the applicant still seeks to visit his sister and her family.

    Compliance with conditions of last substantive visa

20. 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 travelled to Australia and there is no evidence of non-compliance with visa conditions.

    Travel and migration history 

21. The review applicant has provided documents relating to the travel and visa history of immediate members of her family. The Tribunal has also checked the Departmental movements’ records to confirm that evidence.

22. The Tribunal finds that the visa applicant’s mother, father and three siblings have all been granted sponsored visit visas and all have travelled to Australia and departed before the expiry of their visas. Their visits have taken place from 2003 to the most recent visit by the visa applicant’s sister Aida in 2013. The visits have generally ranged in length from 2 to 3 months.

23. The conduct of other family members is consistent with the visa applicant having a genuine intention to visit temporarily and an intention to comply with any conditions attached to the visa.

    Intention to comply with conditions and other relevant matters

24. 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.

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

26. The material before the Tribunal suggests that the visa applicant is a young man who has worked for the same employer for the past 5 years. He has a large family living in Lebanon and has strong family ties which would act as an incentive for him to return to Lebanon at the end of the permitted stay.

27. There is no evidence suggesting that the applicant will seek to work or study in Australia and he is not entitled to a substantive visa.

28. The Tribunal has considered the delegate’s concerns regarding the visa applicant’s lack of dependent family ties and the length of his employment. However, he is only 23 years of age and appears to be living in the family home with his parents and siblings. He also appears to have worked for the same employer since he was 18 years of age which suggests a stable employment background for someone of his age.

29. The delegate was also concerned about the security situation in Lebanon. The latest DFAT country report on Lebanon in December 2015 notes that the

    2.36 Lebanon is broadly stable, but the security situation is fragile and could deteriorate with little notice. Lebanon has low to moderate levels of crime, which have increased, likely as a result of the weak economy and significant influx of Syrian refugees since 2011.

30. With respect to the situation for Christians the report notes

    3.33 Overall, DFAT assesses that Christians are not generally at risk from official or societal discrimination or violence on the basis of their religious identity alone. However, this risk increases in the event that a Christian (or a member of any other religious group) voices criticism of another religious group.

31. The situation for Maronite Christians appears to be stable and whilst country information indicates that the Syrian influx has caused problems for the Lebanese economy and has put some pressure on services the Tribunal does not consider the current situation in Lebanon would act as a strong incentive for the visa applicant not to return to Lebanon in view of his employment and strong family ties.

32. The review applicant declined to attend a hearing and the Tribunal did not hear evidence from either the review or visa applicant. It would generally find it difficult to be satisfied that a visa applicant meets the requirements for a sponsored visit visa without hearing oral evidence about relevant matters. However, the Tribunal has placed a significant amount of weight on the migration history of the visa applicant’s family. Other members of the family have in the past, complied with the conditions of their visas and this suggests he will comply and leave before the end of any permitted stay. Further there is no other adverse evidence which might suggest that the visa applicant does not have a genuine intention to stay temporarily.

33. Overall, and weighing all the relevant factors 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

34. 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.

    Louise Nicholls
    Senior Member  8 February 2017