Harrouk (Migration)

[2024] AATA 1528

Harrouk (Migration) [2024] AATA 1528 (23 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rawaa Harrouk

VISA APPLICANT:  Mr Yahya Harrouk

REPRESENTATIVE:  Mrs Joumana El Halwe (MARN: 1388161)

CASE NUMBER:  2305195

HOME AFFAIRS REFERENCE(S):          BCC2023/1765844

MEMBER:Stephen Witts

DATE:23 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 23 May 2024 at 10:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – limited ties to home country – property ownership – sponsor’s financial support – security and economic circumstances in Lebanon – decision under review affirmed   

LEGISLATION

Migration Act 1958, 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 Home Affairs on 4 April 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 16 March 2023. 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 (Cth) (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 applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant (the sponsor) appeared before the Tribunal on 23 May 2024 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant (the applicant).

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

8. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

12. 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)).

13. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

14. The Tribunal has considered all the material before it including evidence provided by the applicants prior to the hearing.

15. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision dated 4 April 2023 where it was contended that the applicant is a 27-year-old single Lebanese male (as at date of decision) requesting to visit his sister in Australia. According to the delegate it considered the applicant’s economic circumstances and other factors and decided that the applicant’s claimed ties to his home country including his mother and three adult siblings would not necessarily be a strong incentive for the applicant to abide by the conditions of his visa and return back to his home country.

16. Also included was a police record for the applicant indicating no convictions, a family record indicating the applicant’s parents and siblings, a work statement regarding the applicant indicating that he works for a company as a mechanical blacksmith since 2014, a notation from a mayor indicating that the applicant owns a house, and another notation indicating that the applicant has been in the possession of US$8000.

17. The Tribunal notes that also included was a submission from the applicant’s representative dated 20 May 2024 stating that the applicant is a brother of the sponsor who is an Australian citizen and that the sponsor invited her brother to visit for a religious celebration and see Australia. It was stated that the applicant is a Lebanese citizen aged 27 years old and that he is living with his mother and three of his siblings, that he is the main carer for his family as his father is deceased, and that he is employed as a trade worker with a company since October 2014.

18. It was stated that the sponsor has provided a bank statement to support her brother during his stay in Australia and that since 2019 the banking situation in Lebanon has been unstable and that only government workers get paid into an individual’s bank account but that the applicant has a monthly salary and does own property, which is a house, and that he has cash as noted above.

19. It was further stated that it is accepted that family members are an incentive for the applicant to return to his home country, that he has a large family there, and that the applicant is the family’s main breadwinner.

20. It was also stated that the sponsor has provided a declaration indicating her financial support for the applicant’s trip and that the region where the applicant resides is relatively stable and that he is content with his life there.

21. The Tribunal notes that also provided was a copy of the sponsor’s Australian citizenship dated 16 May 2023, passport material, and a declaration from the sponsor stating that he has no intention of residing in Australia and that she has not seen him for 11 years.

22. Also included were travel details for the applicant indicating a flight booking in June 2023 with a departure from Australia in July 2023.

23. At the hearing the Tribunal had a discussion with the applicants regarding their application.

24. The applicant stated that he has never visited Australia and has never had any other applications to come to Australia. He stated that he does not have any other applications pending. He also stated that he has never left Lebanon and has never visited any other countries.

25. He stated that he is not married and has no dependent children and that he lives in a house with his mother. He stated that he has three siblings in Lebanon and two in Australia, including the sponsor. He stated that he has a house which is not being rented out and that he is still working. He stated that the banks were closed at the time he made his application so couldn’t supply a bank statement. He stated that he can’t stay in Australia because he must look after his mother and that he has siblings and nephews in his home country and his job, and that he also has friends at home.

26. The sponsor stated that she first came to Australia in 2013 as a visitor and then sought to stay on a more long-term basis as a carer to care for her sister-in-law who, she said, had a baby and was sick at the time. She stated that she is married and has two children, and that her brother came to Australia in 2008 on a partner visa and that he has three girls and a boy. Regarding visits by other members of the family she stated that her brother, Mohammad, did visit Australia two or three years ago but that she now does not know what has happened to him. She stated that she wants her brother to come to Australia especially after their father has died, that she has been under some psychological pressure, and that she wants her brother to come to Australia for a religious event in June and stay for up to one month.

27. The Tribunal has considered the evidence very carefully and notes that the applicant has never left his home country and has no experience of international travel. The Tribunal also notes that the applicant has no dependent family and is neither married nor does he have any children. The Tribunal has also considered that the applicant, although he has stated that he owns property, has also stated that he does not rent his house and is receiving no income from it. The Tribunal notes that the applicant has provided evidence that he does have a job and is receiving an income. The Tribunal has also considered that the applicant does have his mother in his home country and other siblings, but also that he has two siblings in Australia with their families.

28. The Tribunal has considered that the applicant has no dependent family of his own and finds that this would lend weight to a contention that the applicant once here in Australia would have a lack an incentive to return to his home country. The Tribunal notes that it has been stated that he looks after his mother but finds that his mother could continue to live in the house that they reside in and be looked after by other members of the family and that this would not necessarily be a significant factor in the applicant’s calculations for the need for him to return to his home country. The Tribunal notes the statement that he cares for his family but also finds that the applicant and the rest of his siblings can continue to support his mother while here in Australia. The Tribunal also notes that the applicant does not have significant incentive to remain in his home country other than for his employment which is relevant but also needs to be considered in the context that the applicant may seek to stay in Australia on a more long-term basis and take on other forms of paid employment in the future.

29. In this context the Tribunal notes the recent country information reports regarding Lebanon from the Department of Foreign Affairs and Trade and notes it’s very deleterious security and economic circumstances, and that this would form a significant incentive for a young man with no dependent family to stay in Australia on a more long-term basis. The Tribunal finds that all these factors lend weight to a contention that the applicant may not genuinely intend to stay in Australia temporarily.

30. The Tribunal also notes as above that the applicant has never left his home country and has no history of travel to any country with a similar beneficial immigration profile as Australia and that he is now seeking to come to Australia and leave his country of origin for the first time. The Tribunal finds that this also lends weight to a contention that the applicant is seeking a more long-term stay in Australia.

31. Based on the above factors the Tribunal finds that the applicant, should he be successful in coming to Australia as a visitor, may seek to stay on a more long-term basis and that he may wish to use the visitor visa program to circumvent the legal migration program and develop mechanisms once here to stay here on a more long-term basis.

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

33. 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

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

    Stephen Witts
    Member