Jawad (Migration)

[2019] AATA 5852

Jawad (Migration) [2019] AATA 5852 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mourad Jawad

VISA APPLICANT:  Mr Ahmad Hammoud

CASE NUMBER:  1803468

HOME AFFAIRS REFERENCE(S):          BCC2017/4399815

MEMBER:Mary Urquhart

DATE:20 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2019 at 10:49am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – close relative of the applicant – imprecise evidence of prospective relationship in Lebanon – limited details of studies and employment – option of bond payment – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.232, 600.612; r 1.03

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 19 December 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 21 November 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 they did not satisfy the criteria for the visa.

5. The review applicant appeared before the Tribunal on 18 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Lebanon.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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. A further issue is whether cl.600.232 is met which requires the Tribunal to be satisfied that the visa applicant is a 'relative' of the sponsor as defined in r.1.03.

9. Clause 600.232 in this case, requires the visa applicant to be sponsored by a settled Australian citizen or a settled Australian permanent resident who is at least 18 years old and a relative of the applicant; or a relative of another applicant who is a member of the family unit of the applicant; or a relative of another applicant in relation to whom the applicant is a member of the family unit. A 'close relative' is defined in  r.1.03 of  the  Regulations  as the spouse or de facto partner or a child, parent, brother or sister of the person; or a stepchild, step-brother or step-sister of the person; as well the following people may also sponsor a subclass 600 applicant: a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. That is because these relationships are considered to be within a sufficiently close degree of family relationship to ensure effectiveness of the security bond provisions. Persons such as cousins, fiancés, relatives by marriage (in-laws) and friends are ineligible to sponsor a Visitor Visa (subclass 600) applicant.

10. 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.

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)). As the applicant has not previously visited Australia the clause is not applicable.

12. 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.

13. The applicant, a national of Lebanon was born in the Akkar district in north Lebanon on 24 August 1993 and is 26 years old. In his application in 2017 he declared that he is single. At the hearing he gave evidence that he has a girlfriend and has had a relationship with her since 2013. He made no mention of the relationship at the time of application in 2017. Asked about this he gave evidence that the relationship is not yet official. The applicant states he lives in Derdalloum Akkar. He declares his father is deceased. He said he lives with his mother, a younger brother and three sisters.

14. The sponsor is married to the applicant’s sister Mirvat and is therefore the brother in law of the visa applicant. The Tribunal discussed with him the definition of 'relative' in the Regulations which does not include brother in law as an eligible relative for sponsorship. Whilst the applicant has a sister who may be eligible to sponsor him Mr Jawad is ineligible to sponsor under this class of visa.

15. The review applicant and applicant each gave evidence that the applicant has incentives to return to Lebanon before the expiry of his visa if granted including family ties, his girlfriend, his studies and employment.

16. Usually close family ties represent strong reasons for an applicant to return home. However, the Tribunal notes the applicant’s family are not dependent on him financially. The clear evidence is that the family draws an income from land on which apples are grown and from the renting out of a taxi licence left to the family by the applicant’s deceased father for the support of the family. The title to the land is said to be in the name of the applicant’s mother. Whilst the Tribunal notes the review applicant’s evidence that the eldest son in the household is responsible for the finances, there is another son who lives in the home and could become responsible should the applicant not be there.

17. In the absence of independent supporting evidence the Tribunal has considered offers of support from his brother in law and sister. However the Tribunal records that the onus is on the applicant to satisfy the Tribunal he has the financial means and intention for a genuine visit. The Tribunal acknowledges the applicant’s claim to live in a cash society, to have been paid in cash, to have “money at home” and that he “can afford” to pay for the trip. After careful consideration of the oral evidence the Tribunal has significant concerns regarding the applicant’s ability to support him and as a consequence his intentions regarding a genuine temporary visit.

18. The Tribunal notes the applicant’s documentary evidence that the applicant registered and attended as a student in the faculty of science at “Lebanese University” for the academic year 2017-2018. In his evidence he confirmed this. However, he also gave evidence that he commenced his university studies in 2010. He gave vague undetailed evidence regarding the following years when he says he failed university and had to take time off to assist his father who was unwell and who passed away. The Tribunal accepts the applicant assisted his father but is unable to be satisfied that other family members did not also assist including the applicant’s sister, at home, who is a nurse.

19. The Tribunal notes the applicant’s evidence that he has a girlfriend and that he intends to marry her. The Tribunal notes that inconsistent evidence was given in relation to the claimed relationship. In response to Tribunal questioning the applicant gave evidence of when he met her, when he met her parents and when her parents met his parents. The review applicant gave evidence that the relationship was “hush hush’ until about a year ago. In any event the evidence is that the relationship is not official. The Tribunal is unable to be satisfied that the claimed relationship provides an incentive for the applicant to return home in all the circumstances.

20. The applicant also claims to have been employed at the Al-Bayader Bakery as an accountant since September 2011 during the same years he studied and cared for his father when not studying. The evidence of the review applicant is that as a result of caring for his late father the applicant is now in need of a long holiday and to be looked after in relation to it.

21. A letter dated 27 October 2017 has been provided in support of the claim that he works at the bakery. It is not on letter head and bears no address. It is signed by a person claiming to be the general manager. The applicant’s monthly salary is stated as $1800 US a month. The letter indicates he will be on annual leave for 6 weeks starting on the first day of travel then he “will report back to work”. The applicant claims he was always paid in cash. The Tribunal has carefully considered the document along with all the evidence. The Tribunal accepts the applicant may have worked and studied. However as a part time job his employment is less of an incentive to return home than career employment. The applicant said he has no accounting qualifications and really has learnt through experience. The Tribunal finds the applicant’s evidence has hallmarks of exaggeration and even fabrication. The Tribunal is unable to be satisfied the applicant’s employment provides a strong reason or any reason for him to return home in all the circumstances.

22. The Tribunal referred to reports from the Department of Foreign Affairs and Trade (DFAT) which indicate that Lebanon is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and violence due to the civil war in Syria. Both the review applicant and applicant claimed little knowledge of any problems and both said the applicant is not affected.  Whilst the Tribunal accepts that the applicant, who lives in the northern region of Akkar, may not get out very much as claimed and may not mix very much with others as claimed, may not have much knowledge of such events and may not be directly affected by the civil unrest occurring in parts of Lebanon, never the less the reports indicate that it is the north of Lebanon that is most affected. The Tribunal has significant concerns that the current instability in Lebanon together with a poor economy- which the applicant did agree was the case, May, act as disincentives for the applicant to return home if granted a visa to visit.

23. The applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in Australia or other countries. On this basis the Tribunal has no travel history to rely upon and cannot be satisfied that the applicant will comply with his visa conditions and depart Australia within period of any visa, if granted.

24. The applicant and review applicant both gave evidence that it is the applicant’s clear intention to continue his chemistry studies. The applicant indicated his intention to enrol or register for this in Lebanon in December 2019. The evidence was given on the basis that the applicant has completed a bachelor of chemistry degree and wishes now to study for a Master’s degree and that this is a reason he would return to Lebanon after any visit to Australia. After careful consideration of this evidence the Tribunal accepts the applicant wishes to engage in further and higher studies. For this reason the Tribunal   is unable to be satisfied that the visa applicant would not be tempted to seek to engage in study or training in Australia if granted a visa to visit.  Accordingly, the Tribunal is unable to be satisfied in all the circumstances that the visa applicant intends to comply with visa condition 8201.

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

26. The Tribunal discussed with the review applicant his ability and preparedness to provide a Bond to ensure the applicant would return home. The Tribunal accepts the review applicant understands the nature of a Bond and the implications for other family should a breach of bond occur. When discussing with the review applicant the ineligibility of in laws to sponsor applicants the Tribunal explained it was because relationships such as in law or fiancé are not considered to be within a sufficiently close degree of family relationship to ensure effectiveness of the security bond provisions.

27. 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

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

    Mary Urquhart
    Member