Fattah (Migration)

[2019] AATA 2564

Fattah (Migration) [2019] AATA 2564 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Fattah

VISA APPLICANT:  Mr Kamal Fattah

CASE NUMBER:  1725514

HOME AFFAIRS REFERENCE:                BCC2017/3156821

MEMBER:Rosa Gagliardi

DATE:24 April 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 24 April 2019 at 11:54am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary stay – previous Visitor visa refused – applicant’s wife refused student visa  – wife undertaken English language course – compliance with previous visa conditions – concerns large transfers of money not genuine or consistent – concerns applicant’s motives in visiting and staying – transferable work skills – attempt to secure long-term future in Australia – not satisfied intention to stay temporarily – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 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 27 September 2017 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 30 August 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 11 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Kamal Fattah, who is the review applicant's nephew.  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 family, specifically, the applicant’s uncle and family for a period of one to three months.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   The hearing

9. The applicant is a 35 year old male from Tripoli, Lebanon.  He has previously travelled to Australia in 2007 and 2010 and it appears that he complied with his visa conditions on those occasions.  The sponsor stated that the applicant liked to travel.  He had travelled to Japan and the United States and now wanted to return to Australia.  The sponsor explained that the applicant also had a cousin in Australia but principally he would be coming to visit the sponsor and family.  The applicant has a boy and a girl and they are aged roughly 10 and 8 years.

10. The applicant has had a Visitor visa refused to Australia previously according to the sponsor.  The sponsor also advised the Tribunal that the applicant’s wife had been refused a student visa on one occasion.  The Tribunal noted that perhaps this indicated that the family had been attempting to migrate to Australia permanently.  The sponsor stated that the applicant’s wife wanted to study here and on completion of her studies would return to Lebanon.  She wanted to study nursing and pathology in Australia but has undertaken her studies in Lebanon instead.  The sponsor stated that the applicant’s wife had undertaken an English language course in anticipation of travelling to Australia. 

11. When the Tribunal queried the applicant about whether anyone in his family had previously been refused a visa to Australia he stated that no one in his family had applied to come to Australia, even though he conceded that he had had a Visitor visa refused previously.  When the Tribunal put to the applicant that the sponsor had told the Tribunal differently, the applicant continued to deny that anyone in his family had applied to come to Australia.  After the Tribunal prompted him about his wife’s application, he stated that it was true that his wife had applied to study in Australia, with the entire family. 

12. The applicant stated that his wife had been accepted to study in Australia and they paid the requisite fees but then she changed her mind.  The Tribunal noted that his wife’s student visa had in fact been refused.  The applicant stated that he did not remember exactly what happened but they did transfer some money to a university and they sent her back the money after she decided not to go. 

13. The sponsor advised the Tribunal that the applicant woks as an auto electrician/mechanic.  He has his own business.  Asked if he would shut down his workshop during his absence, the sponsor stated that his nephew had workers.  They would continue with the business.  Pressed about who would take care of the administrative and the financial side of the business, the sponsor stated that his wife would do so.

14. The applicant’s parents lived in Lebanon and he had family there as well. 

15. The applicant was born in the village of Mechmech in the Akkar region but he resides in Tripoli and his business is located in Tripoli also.  The Tribunal put to the sponsor the socio-economic circumstances as set out by country information concerning the Akkar region and the impact of Syrian refugees in terms of pressure on infrastructure and services in the area generally.  The sponsor stated that his nephew lived and had his own business in Tripoli which was profitable and he had a part-time job in a car rental company as well, so such issues did not affect him. 

16. The sponsor and applicant both reported that they had evidence of a contract regarding the purchase of land by the sponsor as well as social security.  In response to queries about whether the applicant might wish to migrate to Australia with his family by changing his status onshore, they both stated that if the applicant had wanted to migrate he could have done so earlier to Japan or the United States.

17. The applicant confirmed that his business employed two people but he did not own the premises.  He paid rent of about USD4,000 per annum and his income was in the vicinity of USD30,000 per annum, although it fluctuated. 

    cl.600.211(a)

18. 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)).

19. The applicant’s movement records show that he has travelled previously to Australia, arriving on 29 January 2007 and departing on 26 April 2007.  He later returned to Australia on 17 April 2010 and on that occasion departed Australia on 25 March 2010.

20. The Tribunal also accepts that the applicant has travelled to Japan in relation to his work for 90 days at a time.  Evidence also demonstrates that he was granted a visa to travel to Egypt for 30 days in 2015.  In addition, the applicant has travelled to Saudi Arabia for 30 days on several occasions.  The evidence submitted shows that the applicant was granted a visa to the United States from 30 May 2014 to 28 May 2019, although it is unclear what the applicant was doing in the United States for such a lengthy period given the sponsor claimed that the applicant had gone there to visit friends.  Furthermore, it is not even clear how long a period the applicant remained in the United States and whether he was actually working there.  The sponsor was somewhat evasive about the applicant’s stay in the United States.  At hearing the applicant stated that if he wanted a migration outcome he could have easily stayed in the United States.  The Tribunal is not so convinced that the applicant, on the basis of his five year visa, would have been entitled to permanent residency in the United States in any event. 

21. Nonetheless, the Tribunal accepts that the applicant has had extensive travel overseas, including in Australia.  Apart from the Tribunal’s reservations about the applicant’s stay in the United States and his purpose for being there, the Tribunal places weight in the applicant’s favour in terms of his compliance with previous visa conditions, especially in Australia.

    cl.600.211(b)

22. 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.

23. The applicant is running what appears to be an auto electrician/repair workshop in Tripoli, Lebanon.  He does not own the premises but rents the facilities.  He also claims to have several employees.  Even the workshop being a viable business, the applicant does have expenses in terms of paying rent as well as paying employees and the other concomitant expenses involved in running a business in terms of purchase of stock and so forth. 

24. The sponsor also stated that the applicant has a part-time job in a car rental company.

25. When the Tribunal asked the sponsor who would look after his workshop in his absence he initially stated that the workers could do that.  When pressed as to who would look after the administrative and financial aspects of running the business to ensure that the business’s finances were dealt with honestly, the sponsor initially stated the applicant’s father and then his brother.  The Tribunal accepts that the applicant’s relatives could all take care of his business in his absence.

26. The Tribunal has also sighted evidence of the contract of the purchase of property.  Asked at hearing about the title it was advanced that there was no title as yet but the applicant had outright ownership and the Tribunal accepts this to be the case as evidence of the contract of sale has been sighted.

27. The Tribunal has also had regard to the financial information submitted to the Tribunal which involves a bank statement account covering the period from 15 January 2018 to 14 January 2019.  The balance brought forward is USD164,938.80 on 18 January 2018.  Some of the credit appears to have been accumulated in cash deposits ranging from USD1,000 to USD9,005.00 at a time. 

28. The Tribunal has drawn its attention, however, to a debit of USD160,000.00 purporting to be debited to “Manager Check” on 14 March 2018.  The account clearly states that the currency being referred to is in US Dollars, in which case USD160,000.00 is an extraordinarily large amount to be withdrawing or transferring in one go.  Even if the amount is in Lebanese Pounds the amount is anomalous in amidst the other much lesser transactions.  There may be a reasonable explanation for this large debit but the Tribunal has concerns because the transactions list starts off at a high level, being USD164,938.80, but it is unclear as to whether the accumulation of significant funds occurred over a lengthy period or whether in fact a one-off large amount was deposited (in the vicinity of USD160,000.00) prior to
    18 January 2018 (the start of the transactions listed) for the purpose of making it appear that the applicant’s financial situation is well above average. 

29. There are other large cash withdrawals involving USD20,000.00 on 28 April 2018 which may be business related.  Other evidence submitted shows that an amount of USD22,025.00 was transferred to the applicant’s account on 19 January 2012 from Japan, possibly related to business dealings.  The Tribunal accepts that this would demonstrate that the applicant is dealing in large figures in US Dollars, however, it does little to explain why the applicant withdrew USD160,000.00 in one go in 2018.  The Tribunal also notes that the transfer is to the applicant but “in favour of Mr./Mrs. Abbassy Auto Group Co. Ltd” which could mean that third parties actually own the business and that the applicant is merely an employee -although this is unclear.

30. There is limited evidence of the applicant having registered his business, for example, under his name.  The Tribunal has taken into account the statements by the Mayor of Tripoli, dated 29 July 2017 stating, “has been practising the occupation of automobile electricity with air-conditioning since January 2011 and is still up to date”.  The Tribunal places some weight on this statement but notes that it is not as probative of evidence of registration of the business.

31. The Tribunal also notes that the financial statements submitted at the time of application for 1 January 2017 to 31 July 2017 in Lebanese Pounds are more realistic with the applicant’s circumstances, although they do involve a one off incongruous large injection of 101,700,000 LBP, further fuelling the Tribunal’s concerns about whether money is not being transferred into the account for the purpose of making it appear that the applicant’s financial situation is solid, rather than reflecting genuine and consistent transactions.

32. The Tribunal places some weight on the financial evidence submitted but considers that in light of the applicant’s profession, his claimed income of USD30,000 per annum, his expenses in renting a workshop and payment of employees as well as looking after a family of four, the applicant’s savings appear anomalous, and the Tribunal has concerns that the account was set up to demonstrate strong financial capacity. 

33. The Tribunal has sighted evidence of registration of a car in the applicant’s name and that he benefits from the National Fund of the Social Security, supporting his claims that he also works for Shadow Rent a Car.

34. The applicant is also leaving behind two young children aged around 11 and 8 years of age and he supports his wife.  As the applicant is not coming to Australia in relation to purchase of parts for automobiles as he had done in Japan, it is unclear to the Tribunal why the applicant would spend his resources to leave behind his family and his workshop in order to visit an uncle and cousins. 

35. As put to the sponsor and applicant, the Tribunal is concerned about the applicant’s motives and intentions in terms of visiting Australia on this occasion, given that the sponsor stated that the visa applicant’s wife had previously attempted to study in Australia with the applicant and their children, but that the visa was refused.  It was claimed that it was, at that time, the applicant’s and his wife’s intention to return to Lebanon on completion of the applicant’s wife’s studies.  She had wanted to pursue nursing and pathology studies in Australia but from the evidence at hearing, it appears that she is now on the threshold of completing such studies in Lebanon. 

36. The Tribunal is troubled by the applicant’s initial denials that no one in his family had ever been refused a visa and when the issue of the student visa was put to him, he stated that his wife had changed her mind, rather than that she had been refused a visa.  When the Tribunal put the discrepancy to the sponsor, he stated that he did not know why his nephew had responded in that manner. He had sent them the Departmental refusal. 

37. The Tribunal places some adverse weight on the fact that the applicant, through his wife, had attempted a longer term stay in Australia previously.  The Tribunal finds it difficult to accept that if the applicant’s wife had been granted a student visa, and had qualified as a nurse or in pathology, she would not have sought permanent residency to work in Australia in that profession, particularly as nurses have been on the skilled shortages list.  The Tribunal considers that despite the applicant’s denials that he ever had any intentions to bring his family to Australia, his wife’s student visa’s application indicates otherwise.  The fact she had undertaken some English language studies also points to the applicant and his family preparing for a longer term stay in Australia.

38. The Tribunal considered that it was important for it to determine the reason for the student visa refusal and requested that the sponsor make the Departmental refusal documentation (decision) available.  The sponsor stated that he had copies at home.  As at the time of writing this decision, some 3 months after the hearing, the sponsor has not provided these.  The applicant did provide other information, however, and in a letter dated 17 January 2019 wrote, among other things, “Based on the papers, the Member asked me and I did not find them due to the time period.  I apologize for that”.   The Tribunal made it clear at hearing that if the sponsor asked for an extension to provide further information it would be granted.  No such request has been received by the Tribunal.  In any event, he has had until the time of writing to provide the information to the Tribunal but has not done so.  As a last resort, the Department would have provided him with a copy of the refusal had he requested it. 

39. The Tribunal does not of itself place significant weight on the sponsor’s reluctance to engage his resources to obtain a copy of the refusal of his sister-in-law’s student visa application.  He may indeed not have found it.  However, it could also mean that the sponsor does not want to reveal the contents of that decision because it could reflect adversely on the applicant’s intention in terms of his current Visitor visa application. 

40. There are a myriad of reasons a student visa could be rejected.  It may be that an applicant is deemed not to be a viable student in that it could be found that a prospective student does not have sufficient financial backing to fund her studies in Australia.  In this case, the Tribunal would query the extent to which the applicant’s financial earnings are as solid as claimed.  On the other hand, a student applicant might be refused if false or misleading information is provided in respect of an application.  Without the Departmental decision the Tribunal is unable to discern the reasons, and neither the applicant nor the sponsor was forthcoming at hearing about this matter.

41. Disregarding the reasons for the refusal altogether, the Tribunal cannot dismiss the fact that the applicant and his wife and children have sought a student visa previously to attain a medium to long-term migration outcome in Australia.  This matter goes to whether the applicant on this occasion genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and the Tribunal is not satisfied that the applicant is not seeking a means to have his family brought to Australia by him changing his visa status onshore through the Visitor visa.

1. The Tribunal has also taken into account that the applicant and his wife are of working age and that both have transferable work skills in the Australian context.

   cl.600.211(c)

2. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal also notes the general economic and security situation in Lebanon which demonstrates that employment is a major problem, particularly for the young, arising from a range of internal and external factors.[1]  Employment opportunities in Lebanon’s traditional external markets have decreased in recent years.  The influx of Syrian refugees had also led to increased competition for low-skilled jobs, particularly in the informal sector and in areas of high refugee concentration such as the north of the country and the Beka’a Valley.  These factors are considered by the Department of Foreign Affairs and Trade to be push factors for external migration.[2]  The conflict in Syria by virtue of its proximity to Lebanon has also created insecurity in Lebanon and vulnerability to terrorist attacks.[3]

   [1] Australian Government, Department of Foreign Affairs and Trade (DFAT) Country Information Report Lebanon 19 March 2019.   

   [2] ibid;

   [3] ibid.

3. In terms of security in Tripoli, the Tribunal notes that the Acting UN Special Coordinator for Lebanon, Pernille Dahler Kardel, visited the northern city more recently to meet with political and religious authorities and visited MARCH, a non-government organization that is active in promoting reconciliation and empowerment among youth and former fighters.  Ms Kardel stated that she was very pleased to see the stability that prevails in Tripoli but also heard that there was an urgent need to do more for Tripoli’s socio-economic development as the poverty and unemployment rates in Tripoli are concerning.[4]

   [4] ‘Kardel Pleased to See Stability’ in Tripoli, Takes Note of Socio-Economic Needs’, 06 September 2018, CXBB8A1DA34886.

4. In such circumstances, it is not difficult to see how the applicant and his wife in applying for a Student visa may not have been attempting to secure a long-term future in Australia, especially for their young children.  The Tribunal has concerns that given the situation in Tripoli in terms of unemployment and future prospects for his family, the visa applicant may use the Visitor visa as an opportunity to change his status onshore.

5. The Tribunal has also taken into account that the applicant would be required to lodge security in relation to this application, but given the extent of the Tribunal’s concerns is not satisfied that any such security would ensure compliance with the visa conditions.

6. 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

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

   Rosa Gagliardi
   Member