Jabbour (Migration)

[2020] AATA 5218

Jabbour (Migration) [2020] AATA 5218 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Fahed Jabbour

VISA APPLICANT:  Mr Georges Jabbour

CASE NUMBER:  1830080

HOME AFFAIRS REFERENCE(S):          BCC2018/3330296

MEMBER:Luke Hardy

DATE:1 December 2020

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 01 December 2020 at 11:02am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – socio-political instability in home country – extensive compliant travel to other countries – business and family ties to home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration on 2 October 2018 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 3 September 2018. 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. The delegate was not satisfied the visa applicant would comply with c.600.211 and depart Australia before the expiry of the visa.

5. The review applicant appeared before the Tribunal on 11 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Lebanese Arabic - English medium.

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

7. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone, determining that it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of catching up with relatives. The original purpose was for the visa applicant to attend a 2018 christening in which he had been invited to be godfather. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231. I note that the review applicant stood in a proxy for the visa applicant at the christening in 2018.

11. 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)).

12. The visa applicant has not been issued any visa by Australian authorities; hence it is not possible to assess compliance with previously held Australian visas. The delegate noted that the visa applicant had not provided evidence of travel in other countries. This appears to be correct. However, the review applicant forwarded me a colour photocopy of the visa applicant’s passport which shows extensive travel in various “Schengen” countries, including France and Greece. These countries are signatories to the UN Convention and protocol relating to the Status of Refugees, and would have allowed the visa applicant to extend his stay in those countries to make an asylum claim, genuine or otherwise, had he so desired. Evidently he did no such thing. The visa applicant has also travelled on multiple occasions to Egypt and Turkey without overstaying or seeking asylum, even though both countries are signatories to the same refugee protection instruments as France and Greece, Turkey albeit providing only temporary asylum to non-European asylum seekers. The evidence before me indicates compliance on the part of the visa applicant with temporary visas in several countries, two of them, in particular in Europe. I give some weight to this evidence, in lieu of evidence relating to Australian visas. Whereas it may not be correct to say that he meets cl.600.211(a), in that the visas discussed here are not Australian ones, I find that he has complied with like conditions, which is relevant to my overall assessment of whether the visa applicant intends to comply with cl.600.211(b).

13. Regarding cl.600.211(b), the Tribunal must 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 (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.

14. In this case, the visa applicant is a 48 year-old businessman operating an evidently successful hairdressing business in Beirut. He has a wife and two sons and cares for his widowed mother who lives in his home. I am told that the Covid-19 pandemic initially caused a downturn in the hairdressing business but that this has passed. I have also been informed that the visa applicant’s main salon is far enough from the recent, tragic fertiliser explosion to have been unaffected structurally and economically.

15. The visa applicant has been refused visitor visa applications on previous occasions.

16. In the present matter, the case of the visa applicant’s strong business networks was put to me orally at the Tribunal hearing and later in photographs and documents illustrating the visa applicant’s fame, success and awards. The argument was put to me that the visa applicant is much too young to retire, is in no mind to sell off his business and would start in Australia with nothing if he were to try to stay on in Australia beyond the timeframe of a visitor visa.

17. I put to the review applicant and his adviser that the delegate appeared to be concerned that socio-political instability in Lebanon might provide the visa applicant with an incentive to overstay in Australia to seek asylum here. The review applicant and the adviser said that the visa applicant has no political affiliations and is under no pressure to leave Lebanon. I put to them that the delegate might not necessarily have been concerned that the visa applicant would be limited to lodging a genuine protection visa application. In response, I was reminded, as shown in the visa applicant’s passport, that he has never overstayed any visa anywhere.

18. The review applicant, assisted by the adviser, said that the delegate did not give sufficient consideration to the visa applicant’s hard-earned ties in business in Lebanon. The review applicant referred to the visa applicant having won international competitions and to the prospect that his business will only grow, giving him strong incentive to return to Lebanon after a temporary visit to Australia. He said the visa applicant frequently visits Egypt on business.

19. The review applicant said he would like his nephew to meet his, the review applicant’s, infant grandson. He said he will support the visa applicant while he is here, and has shown documentary evidence of a capacity to do so. This does not mean that the visa applicant is unable to support himself. I take the offer to be more a demonstration of traditional family hospitality.

20. I have considered all of the information discussed above. I am satisfied on the evidence before me that the visa applicant will visit Australia temporarily, will not work here, will not study here and will not apply for a protection visa here. I am satisfied that he has more incentive to return to Lebanon than to overstay here. He meets cl.600.211(b).

21. I have also considered all other relevant matters (cl.600.211(c)).

22. 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

23. 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.

    Luke Hardy
    Member