Haidar (Migration)

[2019] AATA 1025

Haidar (Migration) [2019] AATA 1025 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rayane Haidar

VISA APPLICANT:  Mr Khaled Haidar

CASE NUMBER:  1732015

HOME AFFAIRS REFERENCE(S):           BCC2017/3995767

MEMBER:Moira Brophy

DATE:8 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2019 at 3:52pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family members –  genuine intention to stay temporarily –family migration history– applicant has substantial ties in Australia – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.612, 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 29 November 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 29 October 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 the delegate was not satisfied the applicant intends to stay temporarily in Australia.

5. The review applicant, Ms Rayane Haidar appeared before the Tribunal on 4 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Khaled Haidar and from the husband of the review applicant Mr Khaled Haidar. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

8. The visa applicant is a 51-year-old national of Lebanon. He is married with 6 children, 3 daughters and 3 sons. He has his wife and 3 children residing in Lebanon. His 3 brothers, 2 sons and a daughter, an uncle and a cousin, and 2 grandchildren reside in Australia. He has been to Australia once in 2008. He has also been refused visitor visas on 4 occasions in 2006, 2008, 2014 and 2016. In his application for a Sponsored Family visitor visa, he stated that he is self-employed as the owner of a car wash since January 2009. His travel will be supported by his daughter.

9. The review applicant, Ms Rayane Haidar, is the daughter of the visa applicant and an Australian permanent resident. She arrived in Australia on March 2011 on a temporary Partner visa and she was granted a permanent Partner visa in 2013. She stated her occupation to be house duties.

10. In support of his Sponsored Family visitor visa, the following documents were provided to the Department:

    ·A Statutory Declaration from the review applicant, undated, stating that she will provide support for the visa applicant and his wife during their stay in Australia

    ·Photographs of the visa applicant and his car wash business

    ·Partner visa grant notification for the review applicant

    ·St George bank account statements in the name of a business ‘The Tiler Man Pty Ltd’, for the period August to September 2017

    ·Sponsorship form 1419

    ·Visa applicant’s family extract

    ·2 letters from the Ministry of Interior and Municipalities, dated 17 October 2017, stating that the visa applicant works at his car wash and owns several real estate cultivating fruit trees

    ·Review applicant’s Lebanese passport.

    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 purposes of visiting his family. 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)).

14. The applicant had previously been to Australia in 2008. Evidence provided to the Tribunal was indicative of his having complied with the terms of the visa granted. In this application he seeks to visit Australia to spend time with his daughter and two sons and their families. At the time of hearing the visa applicant gave evidence he had not travelled outside Lebanon apart from his 2008 trip.

15. On his application form he indicated he wanted to stay for a period of up to three months and to spend the time with his daughter and other relatives in Australia, he also wished to travel within Australia. The applicant has substantial ties in Australia in that he has two uncles, three brothers and their families, his daughter and her four children, his son who has one daughter and his other son who has two sons and one daughter living here. The review applicant had entered Australia on 21 March 2011 on a Partner visa. The review applicant told the Tribunal the visa applicant had previously had four previous applications for a Visitor visa refused. The review applicant indicated at time of hearing that it was her father’s intention to come to Australia for two months. The visa applicant stated he would visit for one month.

16. 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.

17. The visa applicant told the Tribunal he ran a car wash and he had one employee who could conduct the business for a period if required. The visa applicant said the car wash was in the village he lived in but he relocated to Tripoli during the winter months. The Tribunal was concerned his business would not be an incentive to return to Lebanon as he had demonstrated by his residing in Tripoli for part of the year that it was not a sufficient incentive for him to remain in the village. The Tribunal found the evidence that his mother sometimes resided with him to be more persuasive evidence of an incentive to return to Lebanon at the end of a visit.

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

19. In assessing intention the Tribunal was mindful of the evidence given by the review applicant that she had no knowledge of the amount of money her husband earned or the amount of savings they had. When the review applicant was asked if she would be prepared to post a security bond and if so for what amount she was not hesitant in answering she would be prepared to post a bond of $10,000 to $20,000. Her lack of hesitation and subsequent indication she would be prepared to post a bond for an amount irrespective of her knowledge of their savings was indicative of a sponsor who had confidence the visa conditions would be complied with. The Tribunal has taken this into account.

20. The Tribunal discussed with the review applicant its concerns that the visa applicant would not return to Lebanon at the end of his stay if the visa was granted. The Tribunal put to the review applicant that the migration history of her family was of some concern to the Tribunal in that she and her two brothers plus three of her father’s brothers had all migrated to Australia. The Tribunal discussed with the review applicant the concerns of the Tribunal this was really an application to obtain a migration outcome that allowed another member of his family to be in Australia. The review applicant told the Tribunal her mother had extended her visa on the last occasion she was here in the hope her husband’s visa would be granted. She said it was a dream they all be together in Australia. The review applicant stated the visa applicant would return home because of his family in Lebanon and his work there. The Tribunal was mindful of the evidence given as to her mother’s last visit and the reason for the extension on her visa. Taking into consideration all of the evidence the Tribunal was not persuaded family or work in Lebanon would be an incentive that would encourage the visa applicant to abide by his visa conditions and return to Lebanon at the end of a three month stay. His assets could be disposed of and the monies transferred here.

21. The Tribunal has struggled with the decision and has taken into account the applicant's personal profile, the circumstances of his family and the fact he has not seen his daughter and her children for a prolonged period, but given the matters discussed above the Tribunal has difficulty accepting that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

22. For the above reasons, both singularly and cumulatively, 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

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

    Moira Brophy
    Member