Hamad (Migration)

[2017] AATA 2310

Hamad (Migration) [2017] AATA 2310 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khaled Hamad

VISA APPLICANT:  Mr Ghassan Hamad

CASE NUMBER:  1705104

DIBP REFERENCE(S):  BCC2017/472499

MEMBER:Linda Symons

DATE:10 November 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 10 November 2017 at 10:20am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Compliance with previous visa conditions – Family ties in Lebanon – Ownership of taxi licence and health insurance – Willingness to lodge security bond

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.211

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 2 March 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 to the Department of Immigration and Border Protection (the Department) for the visa on 2 February 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 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 she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.   

5. The review applicant appeared before the Tribunal on 3 November 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 (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 his brothers and their families. This is a purpose for which a visa in the Sponsored Family stream may be granted.

9. 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.

10. The records of the Department indicate that the visa applicant has travelled to Australia, as the holder of a Visitor visa, on two occasions in 2010 and 2012. It indicates that he departed Australia prior to the expiry of those visas.

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that he is a self- employed tiler and earns between $1,500.00 and $2,000.00 gross per week. He stated that he owns a house that is subject to a mortgage and has $68,000.00 in savings. He stated that the visa applicant will pay for his own airfare and he will provide him with accommodation and food.

13. The review applicant gave evidence that the visa applicant has two jobs. He stated that he works as a delivery driver in the mornings and as a taxi driver in the afternoon. He stated that he owns the taxi. He stated that the visa applicant will bring some spending money with him to Australia. He stated that on the last occasion he came to Australia he brought $20,000.00 and declared that to Customs. He stated that he did not spend all that money but bought lots of gifts for his wife and children. He stated that the visa applicant did not work, study or undertake any training during his previous visits to Australia and has no intention of doing so if granted this visa.

14. The visa applicant gave consistent evidence. His also stated that he does not need to work in Australia as he has plenty of work in Lebanon. He stated that he earns US$1,200.00 per month in his job as a delivery driver. He stated that he works in his taxi business in his spare time. He stated that if he does a round-trip to Beirut and back he can earn between 50,000 and 80,000 lira per day. He stated that he has been doing the taxi business for between 20 to 21 years. He stated that he intends bringing between US$5,000.00 and US$7,000.00 with him to Australia. The Tribunal has before it supporting documents in relation to the visa applicant’s employment, bank account and ownership of an apartment and a mini bus.

15. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that the visa applicant wishes to visit Australia for 4 to 6 weeks. He stated that he wants to come here for a holiday and to spend time with him and his family. He stated that when he was in Lebanon the visa applicant took his children to different places and has developed a close relationship with them. He stated that he also made friends in Australia during his previous visits and wants to go fishing with them. When asked how the visa applicant is able to get that amount of time off work, he responded that he is entitled to leave in relation to his delivery job and is able to rent his taxi for the time he will be in Australia. He stated that he is well off and can afford a holiday.

16. The visa applicant gave consistent evidence. He stated that he is entitled to one month annual leave from his job as a delivery driver. He stated that he has not taken leave for 3 years. He stated that he has someone who is able to do the taxi job. He stated that he likes to come to Australia every 4 years or so to spend time with the review applicant and his family. He stated that he is close to the review applicant’s children. He stated that he has also made some friends in Australia and likes going out and having fun with them.  

17. The Tribunal discussed with the review applicant and the visa applicant the current security situation in Lebanon, the incentives for the visa applicant to return to Lebanon and the incentives for him to remain in Australia. The review applicant gave evidence that the visa applicant’s job and his taxi business are incentives for him to return to Lebanon. He stated that his health insurance is obtained through his taxi licence and if he overstays his visa he will lose his health insurance and his business. He stated that the visa applicant first came here 7 years ago and if he wanted to overstay his visa he would have done it then. He stated that on the last occasion the visa applicant came here (in 2012) he was given a visa for six weeks but only stayed for 4 weeks. When the Tribunal pointed out that the security situation in Lebanon 7 years ago is different to what it is today, he responded that there are always problems in Lebanon.

18. The review applicant gave evidence that as a father the visa applicant would not leave his two sons in Lebanon and overstay his visa. He stated that he is the only carer for his family and unmarried sister. He stated that he is financially well off in Lebanon.

19. The visa applicant gave evidence that his incentives for returning to Lebanon are his family and his taxi licence. He stated that his taxi licence is worth about US$60,000. He stated that one of the benefits of his taxi licence is that he gets health insurance for himself and his family through his taxi licence. He stated that he has to renew it every three months in person or he loses it. He stated that if he wanted to live in Australia he would have overstayed his visas on his previous visits. He stated that he would like to have a holiday in Australia but does not to live here.

20. The Tribunal has considered other relevant matters. The Tribunal places considerable weight on the fact that the visa applicant has visited Australia twice previously. There is no evidence before the Tribunal that he did not comply with the conditions of his visas on those previous occasions 

21. The review applicant gave evidence that he is prepared to lodge a security bond to guarantee the visa applicant’s compliance with the Visitor visa. He stated that he is able to lodge between $10,000.00 and $15,000.00. He stated that he has lodged a security bond previously and it was refunded when the visa applicant left Australia. He stated that he is so confident that the visa applicant will comply with the conditions of the visa that he spent the money to lodge the application for review with the Tribunal and is prepared to also lodge a security bond. He stated that he cannot afford to lose that amount of money.

22. The review applicant gave evidence that he will ensure that the visa applicant complies with the conditions of the visa. He stated that he wants to be able to sponsor other members of his family to visit Australia in the future. He stated that his wife is currently 6 months pregnant and he would like his mother to be here when his wife gives birth. He stated that he needs his mother to be here.  

23. Having considered all the evidence, the Tribunal accepts that the visa applicant complied with the conditions of his previous Visitor visas. The Tribunal accepts that the presence of his wife, two sons, parents and sisters in Lebanon provides a strong incentive for him to return to Lebanon. The Tribunal accepts that his ownership of a taxi licence with benefits such as health insurance for himself and his family provides a further incentive for him to return to Lebanon. The Tribunal accepts that he intends coming to Australia to visit his family and friends and to have a holiday. The Tribunal accepts that he intends complying with the conditions of the visa.

24. The Tribunal accepts that the review applicant is willing and able to lodge a security bond. The Tribunal is of the view that this will provide a further incentive for the visa applicant to comply with the conditions of the visa. The Tribunal accepts that the review applicant would like other family members to come to Australia for a visit and for this reason and the fact that he does not wish to lose his security bond he will ensure that the visa applicant complies with the conditions of the visa.

25. 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

26. 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.

    Linda Symons
    Member