Hayek (Migration)

[2022] AATA 252

Hayek (Migration) [2022] AATA 252 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khalil Hayek

VISA APPLICANTS:  Mrs Hoda Hayek
Mr Saadoun Khalil

CASE NUMBER:  2000773

HOME AFFAIRS REFERENCE(S):          BCC2020/410823 Not Recorded

MEMBER:Mark Bishop

DATE:3 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 03 February 2022 at 12:19pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicants unemployed – few family commitments in home country – political and security situation in Lebanon – previous compliant family visits – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.612

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 9 January 2020 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 17 December 2019. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 (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 visas, on the basis that the visa applicants did not meet cl 600.211.

5. The Review Applicant (RA) appeared before the Tribunal on 3 February 2022 to give evidence and present arguments. The Visa Applicants (VA) did not appear before the Tribunal on 3 February 2022 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. In this review application the RA is Mr Khalil Hayek. In this review application the VA’s are Mrs Hoda Hayek and Mr Saadoun Khalil

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 applicants seek the visas for the purposes of visiting family This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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 (cl 600.211(a)).

10. 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.

11. Clause 600.211 provides as follows:

    The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a) 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; and

    (b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

    (c) any other relevant matter.

12. Under policy when considering “any other relevant matter”, decision makers may take into account a wide range of considerations to determine whether an applicant genuinely intends a temporary stay in Australia. This may include, but is not limited to, the applicant’s employment, economic and family circumstances, their credibility, the claimed purpose and period of stay, and the applicant’s previous travel history. The Tribunal brings an independent mind to this review application.

13. The delegate made the following findings

    ·“In assessing these criteria I have taken into account the information provided in your visa application form and the supporting documents provided. I find that the information provided is not sufficient to satisfy me of your genuine temporary stay intention, and you have not demonstrated you have sufficiently strong commitments in Lebanon that would be an incentive for you to return to Lebanon. I have based this conclusion on a combination of the following factors:

    ·I note that your son will be accompanying you to Australia. I further note you have not declared any dependent family members remaining in Lebanon

    ·You have declared that you are unemployed or responsible for home duties

    ·You have not declared any previous travel history

    ·Invitation letters, such as the one you provided, are not sufficient evidence of a genuine temporary stay

    ·I have considered the economic, political and security situation in your home country. It is well documented that Lebanon has suffered political and civil unrest over many years and that the situation remains unpredictable and has been heightened over the last few weeks. Departmental information shows that it is not uncommon for Lebanese nationals to overstay their visa or change their status after their arrival in Australia. I find that these circumstances are of such a nature that they would act as an incentive for you to remain in Australia beyond the validity of your visa.

    ·In light of the above considerations, I am not satisfied that you genuinely intend to stay temporarily in Australia for the purpose you have stated, and therefore find that you do not satisfy Subclause 600.211 of the Migration Regulations 1994.

    Decision

    ·As you do not meet one or more clauses in Schedule 2 of the Migration Regulations, I find that you do not meet the criteria for the grant of a VISITOR (Class FA) VISITOR (Subclass 600) visa.

    ·Therefore, I refuse your application for a VISITOR (Class FA) VISITOR (Subclass 600) visa lodged at Beirut.”

14. In evidence the RA advised as follows:

    ·The RA has lived in Australia since 2000 and has been an Australian citizen since 2004. He owns a multipurpose company in Sydney in partnership with one other (25% to the other) and receives a net income (wages plus share of net profit) of approximately $350,000 per annum.

    ·The RA is married with 3 children and owns his home. His 3 adult children attend university. He has a brother and sister living in Sydney who are married with their own families. The RA (and hence the VA’s) has a small network of family in Sydney. The RA has a large network of family back in the home country.

    ·The parents of the RA and VA are alive and are quite wealthy with extensive land holdings on the ocean and property and apartments that provide rents.

    ·The mother of the RA and VA regularly visit Australia and have always adhered to visa conditions.

    ·The RA has extended invitations to immediate family members in Lebanon in the past to relocate to Australia but his mother says she prefers to visit as Lebanon is her home and his sister has no interest in migrating to Australia as she has how own home and family in Lebanon.

    ·The RA readily agree that Lebanon is economically and financially in a poor condition He advised the Tribunal “everyone now knows”. He advised his family in Lebanon simply adapts to the breakdown in essential services, they have their own sources of income, they have considerable assets and life goes on.

    ·The RA is the main driver of the VA’s application to come to Australia. Her application for visitor visas have been refused in the past. The RA thinks this quite strange as his mother regularly applies to visit Australia and there have not been any problems.

    ·The RA advised the VA had travelled extensively in the past to UAE (the RA and VA have family in Dubai) and Jordan and Syria.

    ·In the past the RA has regularly visited Lebanon and other parts of the middle east but now it is much to unsafe. Hence the invitation to the VA to visit in Australia.

15. The VA’s did not appear to give evidence. Accordingly it is difficult to make an assessment of relevant GTE matters to the VA’s when they have chosen not to make themselves available to give evidence.

16. The Tribunal has considered this evidence very carefully. The Tribunal has paid particular attention to the evidence of the RA that goes to GTE matters.

17. However, the Tribunal after careful consideration finds that this evidence going to GTE is not sufficient to outweigh the other factors including the recent significant deterioration of the economic, social, and security situation in Lebanon noted in the evidence as discussed with the RA above.

18. The Tribunal notes the VA lives in her own home, her husband is employed and that her parents are wealthy with significant assets. It is also noted by the Tribunal that the VA has immediate family in Australia and this family appears to be successful and entrepreneurial in focus. The Tribunal is not persuaded these matters either individually or taken together are sufficient to confirm that the VA’s expressed intention to visit Australia temporarily is genuine.

19. As stated, the Tribunal has also considered the recent country information reports from the Department of Foreign Affairs and Trade, and notes that the security, political, and economic situation in Lebanon at the present time is particularly bad. The RA advised the Tribunal that these generally poor conditions had little immediate impact because of the wealth of his family and the family ability to adapt to difficult circumstances. The Tribunal notes the recent humanitarian crisis and how it has evolved for the worse over the last few years. As noted above the RA was aware of the suffering that was now occurring in the home country and were at pains to differentiate the lifestyle of the VA from that of the overwhelming proportion of the population in Lebanon. The Tribunal has considered this evidence and does not reject it outright.

20. The Tribunal has considered this matter very carefully and finds that the situation back in the VA’s home country is quite poor and that this does lend some weight to the contention that the VA does not genuinely intend to visit Australia temporarily for the purpose for which the visa is granted.

21. Having taken all these factors into consideration the Tribunal finds that should the VA now be successful in coming here as a visitor taking into account the changed circumstances in Lebanon (the ongoing breakdown and only gradual differentiated improvements in government, community, social and restricted services since the date of lodgement of the visa application in the home country as set out above) that the VA may seek to stay here in some form on a long-term basis and that she does not genuinely intend to stay in Australia temporarily.

22. On balance the Tribunal is inclined to the view there is a real risk the VA will seek to remain in Australia living with her son and family. Notwithstanding the existence of assets and income from family owned properties the Tribunal is not satisfied that the VA would abide by the conditions subject to which a Visitor Visa is granted or that the VA would depart Australia at the end of the requested period of stay.

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

24. For the above reasons the Tribunal is not satisfied that the VA 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

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

    Mark Bishop

    Member