Joud (Migration)

[2024] AATA 3836

Joud (Migration) [2024] AATA 3836 (9 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Omar Joud

VISA APPLICANT:  Mr Jihad Omar

REPRESENTATIVE:  Mr Ahmad Lababidi

CASE NUMBER:  2307182

HOME AFFAIRS REFERENCE(S):          BCC2023/1667719

MEMBER:Justin Meyer

DATE:9 September 2024

PLACE OF DECISION:  Melbourne

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 09 September 2024 at 1:21pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit Australian family members – applicant is well connected to family and notable financial interests in Lebanon – positive family migration history – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

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 Home Affairs on 30 March 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 12 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 temporarily in Australia for the purposes set out and thus not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.

5. The review applicant appeared before the Tribunal on 4 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Johad Omar, the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   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.

9. 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.

10. 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)).

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 (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.

12. The parties made a written submission to the Tribunal. The Tribunal had a significant discussion with the witnesses about the prospect of the visa applicant returning to Vietnam.

13. Per the parties’ submission of 8 August 2024:

    ·Reasons to return to Lebanon after the expiry of visa

    ·Other family members residing in Lebanon.

    ·The Review Applicant has family in Lebanon that he must return too. The Review Applicant has family in Lebanon which includes family members both immediate and extended. The Review Applicant has instructed our office that since all of his family members all live next to each other in Lebanon, he must eventually return as they share a very strong bond with each other and living without each other can be very difficult. The Review Applicants parents and most of his siblings live in Lebanon.

    ·As a close-knit family, the Review Applicant has dedicated most of his life to spending time with his family and helping his parents with his siblings. The Applicant, his parents and siblings are all domiciled in the same suburb in Lebanon. The Review Applicant plays a crucial role in his family as he is employed and financial supports his family.

    ·The Review Applicant is employed at the Aine El Zahab Municipality in Ain Al Dahab. The Review Applicant has been employed by the municipality since March 2019 and has been provided with leave to enter Australia. The Review Applicants work at the municipality has always been very important to him but has been more important than ever in the last few years as he has been supporting his family financially due to the effect that COVID-19 has had on other family members jobs which financial support the family.

    ·It should be further noted that the Review Applicant owns land in Lebanon totalling 5000sqm which is planted with olive, almond and grape trees which are harvested and sold at markets which produce income for the Applicant.

    ·The Review Applicant also has a house in Al Borj which consists of two floors within a building. The Review Applicant has also been saving his income from employment with the owner and director of the educational school of Alam Al Ataymoz. Unfortunately, the Review Applicant is not able to save this money in a bank account due to the banking issues in Lebanon.

    ·It should be noted that the Review Applicants family has a history of travelling to Australia and complying with the conditions of their visitor visas. Please see attached the Review Applicants mothers passport Biopage with visa stamps demonstrating her visit to Australia from 23 March 2018 to 20 June 2018. Please see also attached the Review Applicants fathers passport Biopage with visa stamps demonstrating his visit to Australia from 23 March 2018 to 20 June 2018. Please see also attached the Review Applicants brother, Hani Omar’s passport Biopage including a visitor visa to Australia with stamps demonstrating a visit to Australia from 25 May 2009 to 25 August 2009. Further, the Review Applicants other brother, Youssef Omar has also travelled to Australia, please see attached his passport Biopage including a visitor visa to Australia with stamps demonstrating a visit to Australia from 28 June 2007 to 24 September 2007.

    ·Upon the expiry of his visitor visa; we submit that the Review Applicant has strong incentives to return to Lebanon. He will continue to his support family. The Applicants family members will support themselves while he is in Australia. The Review Applicant has been provided with 2 weeks leave from his employer.

    ·The Review Applicant intends on staying the allocated time period provided to him by the Department of Home Affairs and intends to comply with the visa conditions applied to his visa. We submit that the Review Applicant intends on being a genuine visitor and should his visa be granted, he will return home. We submit that should the Review Applicant be granted a visitor visa to Australia; he will not breach any of the visitor visa conditions.

    ·Based on the above reasons, we submit that the Review Applicant has close ties to Lebanon and has therefore demonstrated sufficiently strong family commitments as incentive for his return.

    ·Financial Support during the Applicant’s stay in Australia

    ·The Review Applicants brother, the Applicant Mr Joud will be responsible for the Review Applicants accommodation throughout his stay in Australia. Both the Applicant and Review Applicant will further be responsible for the Review Applicants expenses in Australia and his expenses for travelling to Australia (Please refer to Applicants Bank Statement and Review Applicants Proof of Funds). The Applicants family home has all the ample space to support the Review Applicants accommodation while in Australia. Further, the Applicant will provide any necessary monies for the Review Applicant if required.

    ·Previous Immigration History

    ·It should be noted that the Review Applicant has previously been refused two (2) visitor visas under GTE grounds on 8 September 2022 and 30 March 2023. The main reason for the Applicants first visitor visa refusal was due to the Review Applicant not demonstrating his own financial circumstances. Unfortunately, these documents existed at the time of the application but were not inserted into the application as they have now. The delegate determined the Review Applicant did not provide evidence of sufficient personal, business, employment and cultural ties to Lebanon to demonstrate that they intend a genuine temporary stay in Australia.

    ·The delegate in their decision for the visitor visa dated 30 March 2023 stated the following:

    ·The applicant has requested a visa to Australia for a period of stay up to 1 month. While the purpose of visit is considered, this in itself does not demonstrate that the applicant will abide by the conditions of the visa or to stay temporarily in Australia for the purpose for which the visa is proposed to be granted.

    ·The review Applicant disagrees with this reason as he has provided more than sufficient enough reasons to demonstrate that he will abide by his visa conditions.

14. Documents submitted to the Tribunal included:

    ·     Applicant’s Employment & Land Ownership Letter

    ·     Applicant & Sponsors Family Registry

    ·     Review Applicants Declaration

    ·     Applicant’s Overseas Police Clearance

    ·     Applicant’s Proof of Funds

    ·     Applicant & Sponsor’s Brother’s Passport Bipage, Australian Visa & Visa Stamps to Australia

    ·     Applicant & Sponsors Brother’s Passport Bipage, Australian Visa & Visa Stamps to Australia

    ·     Applicant & Sponsor’s Father’s Passport Bipage & Visa Stamps to Australian

    ·     Applicant & Sponsor’s Mother’s Passport Bipage & Visa Stamps to Australian 12. Applicants Bank Statement

    ·     Applicant’s Drivers License

    ·     Review Applicant’s Declaration that he will take care of brother in Australia  

15. From the oral evidence of the parties and the written submissions there is no evidence to the Tribunal that the visa applicant will work in Australia, engage in study or training in Australia, seek a substantive visa, or remain in Australia after the end of the permitted stay.

16. The Tribunal had a significant discussion with the witnesses about the prospect of the visa applicant returning to Lebanon.

17. The review applicant (sponsor) told the Tribunal he wishes his brother, the visa applicant, to stay with him for a family visit for up to three months. The likelihood is that it would in fact be for two weeks though. His brother, as a young man of 24, has never been overseas before.

18. The review applicant (sponsor) said that other Lebanon-based family of his had visited him and had returned, including his parents and two brothers.

19. His brother has land (in his own name) and grows crops.  He bought it form a third party (not family). His main job however is ambulance driver in his local government area in Lebanon. A confirmation of employment was enclosed with the submission. This was full-time work the parties said. He is paid in Lebanese pounds and receives around LBP1.5m per month. Despite the vacillations of the currency and banking system his is a good income the review applicant (sponsor) said. A sum of money had been deposited with a trusted official, as the banking system was to be avoided at present. The official made a declaration that he held a substantial sum on his behalf.

20. The migration history of the rest of the family was that another brother had moved to Dubai for work reasons.

21. The visa applicant has a Year 10 education. Whether he wanted to study further depends on him but it is not evident that this will occur.

22. In response to my questioning the visa applicant said he had a girlfriend in Lebanon. He had no plans to study and he had his work in Lebanon which he was satisfied with. His parents are aged 77 ad 65 and were in good health but he was concerned for them.

23. As for security situation hie said the conflict was in the south and far away from the northern region that he was in.

24. In all, the applicant appeared to be settled in Lebanon and involved and relied upon by family. He has a girlfriend in Lebanon which again is another bond which could well be an incentive form him to return.

    Findings

25. Having examined the parties personally I find that the visa applicant has various incentives to return and is someone who would be a temporary entrant to Australia.

26. There is an extensive amount of written information to reinforce the parties that he is well connected to family and notable financial interests in Lebanon. I do not discern a desire to migrate to Australia.

27. His employment and financial circumstances point towards return, the economic situation in his home country raises no serious concerns nor does social unrest or conflict impacting upon him. He has professional and personal reasons and incentive to return to his home country.

28. The purpose of an applicant's visit to Australia is credible, including the proposed duration of stay and intended activities in Australia. The duration is understandable given the circumstances.

29. I accept that the intention of the trip to Australia is to visit Australian family members.

30. There is no evidence of any visa non-compliance from the visa applicant or indeed anyone in the family. There is no evidence of a desire for any other visa, work or study in Australia or a lack of interest in being present for family in Lebanon. There is a reasonable basis for finding her would comply with the conditions stipulated above.

31. There is no substantial evidence before me to support a contention that the visa applicant will not genuinely intend to stay temporarily in Australia.

32. The Tribunal has also considered all other relevant matters (cl 600.211(c)). While incomes are higher on average in Australia, it is not apparent that this is a motivator for this visa applicant.

33. 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

34. 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.

    Justin Meyer
    Member