Fayad (Migration)

[2017] AATA 1843

Fayad (Migration) [2017] AATA 1843 (27 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Fayad

VISA APPLICANT:  Mrs Hana El Samad

CASE NUMBER:  1702358

DIBP REFERENCE(S):  BCC2017/169180

MEMBER:Meena Sripathy

DATE:27 September 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; and

·cl. 600.224(1) of Schedule 2 to the Regulations.

Statement made on 27 September 2017 at 10:00am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Genuine intention to stay temporarily – Relative with adverse migration history – Sponsor – Security requirement – Intention to return home

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, 600.221, 600.222, 600.224, Schedule 8, cl 8101, 8201, 8503, 8531.

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 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 13 January 2017. 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 Tourist 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 the delegate was not satisfied that the visa applicant’s intentions to visit Australia temporarily was genuine.

5. The review applicant appeared before the Tribunal on 26 September 2017 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, Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa applicant is a 58 year old widowed woman from Bakhoun, Dinnieh, North Lebanon. Her application indicates she has two children and a sister in Lebanon, and she seeks to visit Australia to see two sons who live here.  However, the family register provided with the application indicates she has 7 children.  She is a housewife.  She has previously been refused a visitor visa in December 2012, May 2015 and February 2016. 

   9.Information in Departmental file records indicate that the visa applicant’s son Ahmad (the review applicant) arrived in Australia on Partner grounds but has a sponsorship bar.  Her other son, Omar arrived in Australia in March 2010 on a Sponsored Family Visitor visa and remained unlawfully here until he applied for a Bridging visa associated with a Partner visa application lodged in 2016.  The delegate’s reasons takes into consideration the visa applicant’s family member’s adverse migration history as well as country information about the circumstances in North Lebanon as factors that may encourage the visa applicant to remain in Australia beyond the period of the visa.

9. Before the Tribunal, the review applicant gave a written submission providing further information about his family members who have come to Australia and the visa applicant’s circumstances.  He provided details about his brother, Omar Fayad and his migration history, explaining the circumstances which led to his remaining in Australia since 2010. He provided information about previous compliant visitor visits by his brother Khaled Fayad.  In relation to the visa applicant he submitted she is well established in Lebanon and lives a comfortable life in her family home.  She has the support of her family and children and siblings at her disposal.  She has 6 children presently alive, two of whom live in Australia with their families and 4 in Lebanon, and two of her sons are unmarried. She currently looks after three grandchildren in Lebanon and has many family responsibilities. She has 5 sisters and 1 brother in Lebanon and is close to them as well. The review applicant submits his mother is an elderly woman with no associations with any political group. She is unlikely to be the target of any civil uprising in Lebanon, and neither have any family members been involved in any political conflicts or issues. She lives in a peaceful area that is not impacted by any of the political upheaval in the country. 

10. At the hearing the review applicant gave oral evidence about his background and circumstances and the visa applicant’s circumstances in Lebanon.  He told the Tribunal he lives in a house he owns, with his wife and 5 children who range in age from 8 months old to 13 years.  He also has a granny flat on his premises.  His only other family member in Australia is his brother Omar who is also married and has 2 children aged 3 and 5 years.  They live in Granville.  If his mother comes for a visit she will stay with each of their families for half the period.  The review applicant has his own business as a form worker. His wife does not work outside the home. His brother also works in the construction industry as a cement renderer for a different company. 

11. In Lebanon they have 4 other siblings and his mother, as well as a large extended family.  The visa applicant lives with two of her sons who are unmarried.  Khaled is married, has two children and lives upstairs from the visa applicant in his own unit.  Her daughter, Khadeja recently married and lives separately with her husband. She is pregnant and expecting her first child in a few months.  Their father is deceased.  The visa applicant has 5 sisters and 2 brothers, and they all live close by in the same area.  The Tribunal asked the review applicant if he has any other cousins or other relatives who have left Lebanon in recent years.  He said he has one uncle who goes back and forth between Lebanon and Kuwait and a cousin who went to Kuwait.  Other than them, only he and his brother Omar live outside Lebanon. 

12. The visa applicant lives in an apartment in a building owned by her late husband.  Her son lives upstairs and he operates his business from the building.  She is financially supported by her children, including remittances sent by the review applicant and his brother from Australia.  She is Sunni Muslim.  She goes to the mosque during feasts and Ramadan.  She is not involved in any religious or political organisations and neither are any of her children.  The Tribunal discussed country information about the volatility of the political, security and economic conditions in North Lebanon presently and whether this would be a disincentive for the visa applicant to return.  In response he said she has no intention of staying in Australia. She only wants to visit her children and grandchildren and will return home, where she has her family and a stable life.

13. The Tribunal discussed with the review applicant his and his brother’s migration histories.  He confirmed he came to Australia after marrying his wife, and is still with her to date.  He previously sponsored his brother Khaled for a visitor visa twice and provided financial securities each time which were returned to him.  He also sponsored his brother Omar on two occasions.  The second time, in 2010, Omar did not return home.  The review applicant’s security was forfeited and as a result he faced a 5 year ban on sponsoring anyone. He told the Tribunal he was very angry about this and did not speak with his brother for some time after that, although they are now on good terms.  He was angry with his brother that he lost his money and also that his good name was affected and he was unable to sponsor his parents for a visit. 

14. The Tribunal noted that more than 5 years has now passed and he is no longer affected by the sponsorship ban, but this application was made under the Tourist stream.  It asked why he did not apply under Sponsored Family stream given the background of his brother’s non compliance.  He said he asked his lawyer and followed his advice.  When this question was put to the representative his response was not particularly helpful or useful.  The representative said he believed on the information they submitted the application would be successful. The Tribunal noted that the Department file did not indicate much supporting documentation. The Tribunal explained to the applicant that in the circumstances it considers a security should be requested given the history.  The review applicant said he was more than willing to provide a security and of any amount requested.  He just wants his mother to come for a short visit and see his children. He said it is very difficult for him to go to Lebanon with his whole family. He believes he has paid the price for his brother’s mistake and he would like to be able to sponsor his mother.

15. The Tribunal took evidence by telephone from the visa applicant.  She confirmed her living and family circumstances in Lebanon, consistent with the review applicant’s evidence. She indicated she is very close to her grandchildren of her son Khaled and his wife is about to given birth to their 3^rd child soon, and her daughter is about to give birth to her first child.  She stated she must return to Lebanon to look after her sons and support her daughter in law and daughter with their children. In response to the country information about the volatility in North Lebanon the visa applicant said she has no issues there. She loves her country and it is beautiful.  She just wants to see her sons and their families and this country and return to Lebanon. She has to come back to marry off her sons.  She also confirmed she has 5 sisters and 2 brothers and they all live in neighbouring areas and she sees them regularly.

16. The Tribunal explained to the visa applicant that it may consider allowing the application on the basis that the review applicant provides a financial security which he will lose if she breaches conditions. She said she will just visit and return and will accept any period of visa that is given.

    FINDINGS AND REASONS

17. 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.

18. In the present case, the visa applicant seeks the visa for the purposes of visiting her sons and their families in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

19. 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)).

20. On the basis of departmental records and the review applicant’s oral evidence, the visa applicant has not previously travelled to Australia and therefore has no relevant immigration history. The Tribunal has also considered the migration histories of the visa applicant’s close relatives.  Apart from her son Omar, it observes that her sons Ahmed and Khaled have favourable migration histories.

    Discretionary sponsorship requirement in Tourist stream: cl 600.224

21. The sponsorship requirement in the Tourist stream applies only if the applicant intends to visit certain kinds of relatives, and if the Minister has required the applicant (and each other applicant who is a member of the applicant’s family unit, or in relation to whom the applicant is a member of the family unit) to be sponsored by a specified Australian relative under cl.600.224(1). This capacity of the Minister to request sponsorship is intended to provide additional flexibility in relation to applicants who may otherwise not meet the visa criteria (see Explanatory Statement to SLI 2013, No. 32, p.18). One effect of requiring sponsorship is to engage the security requirement criterion in cl.600.225.

22. The Tribunal takes into consideration the adverse migration history of the visa applicant’s son, Omar, as a result of which the review applicant had a sponsorship ban imposed on him for a period of 5 years.  It notes that the period of sponsorship ban imposed on the review applicant has now passed.  When asked by the Tribunal why he did not apply under the Sponsored Family stream this time, the review applicant said he followed advice of his lawyer, but was, and still is, prepared to sponsor her. The Tribunal did not get a convincing explanation from the representative about the decision to proceed with a Tourist stream application in this situation rather than through the Sponsored Family stream.  

23. In the circumstances, having regard to the review applicant’s brother’s past non-compliance, but also taking into account the compliant visits of his other brother Khaled, the very different circumstances of the visa applicant, and the Tribunal’s favourable assessment of the review applicant’s credibility, the Tribunal considers that its concerns regarding visa compliance can be overcome if the present application were to be sponsored by the review applicant, and an appropriate security requested.  The review applicant indicated to the Tribunal he is prepared to sponsor the visa applicant and willing to provide a security bond of any amount, up to $60,000. 

24. The Tribunal notes that the delegate did not consider requesting a sponsorship under cl.600.224 in the present case. The review applicant has indicated to the Tribunal that he is prepared to sponsor the visa applicant and is willing to provide a security to ensure compliance with the visa conditions. The Tribunal has discretion to require a sponsorship in accordance with cl.600.224(1) and in the circumstances of the present case, considers it appropriate to do so. On this basis, it finds the applicant meets cl.600.224(1).

25. The Tribunal will leave it to the visa applicant to make arrangements to provide the sponsorship as required to meet cl.600.224(2) and to the Department upon remittal to consider whether to approve the sponsorship as made (cl.600.224(3).

26. Having determined to require the visa applicant to be sponsored, the Tribunal will now go on to consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)).

27. 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.600.611(2)): 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. Having regard to the visa applicant’s age and circumstances, it is not concerned that she is likely to breach the no work or study conditions.  In relation to condition 8531, it is satisfied on the basis that a security has been provided and there are therefore consequences for the sponsor if conditions are breached, that she will do as she has indicated and return within the period of her visa.

28. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal accepts that the visa applicant is a widow who lives with her two unmarried sons in a house owned by the family.  It accepts she has another married son and his family residing upstairs and her newly married daughter who is expecting her first child, living nearby.  The Tribunal accepts the visa applicant has 7 close siblings also living close by.  Therefore it accepts she has strong family ties and obligations in Lebanon and that this is a strong incentive for her to return within the visa period. 

29. The Tribunal has carefully considered the Omar’s adverse migration history and the information about this provided to the Tribunal in his written submission.  While in no way condoning his actions, the Tribunal considers that it is relevant to take into consideration that his circumstances were very different to the visa applicant’s and on this basis his situation is clearly distinguishable from the visa applicant’s.  Provision of a suitable security, as requested by the Department, will also act as a further incentive for visa compliance.  Therefore, taking account of the visa applicant’s age, stage in life and strong family ties and family obligations in Lebanon, the Tribunal is satisfied that the likelihood of her remaining in Australia at the expiry of the visa period and causing further significant financial loss to the review applicant and another sponsorship ban is very low.  

30. The Tribunal has also taken into consideration the country information indicating volatile political, security and economic conditions in North Lebanon.  However, against this general information, the Tribunal has considered the following.  The visa applicant lives in a stable family situation, with 4 out of 6 of her children.  All of her sons are engaged in employment in the local area.  She also has some 7 siblings living nearby and has not mentioned any issues experienced by any close family members. Apart from the review applicant and his one brother, no other family members have left Lebanon in recent years.  As an elderly woman in a close family network, who has strongly expressed her love for her home and village, the Tribunal is satisfied that she has no particular fears for her safety and security that would discourage her from returning home. 

31. For the above reasons the Tribunal is satisfied, subject to the sponsorship being provided and accepted, 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

32. 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; and

    · cl. 600.224(1) of Schedule 2 to the Regulations.

    Meena Sripathy
    Member