Kanj (Migration)

[2018] AATA 2354

Kanj (Migration) [2018] AATA 2354 (23 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khaled Kanj

VISA APPLICANT:  Mr Nidal Kanj

CASE NUMBER:  1713643

DIBP REFERENCE:  BCC2017/1358796

MEMBER:Rosa Gagliardi

DATE AND TIME OF

ORAL DECISION AND REASONS:          23 April 2018 at 11:00 am (VIC time)

DATE OF WRITTEN RECORD:                15 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets cl.600.211.

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Whether the applicant is a genuine temporary entrant – Sponsored Family stream – Where the sponsor has a history of sponsoring compliant family members – Significant incentives to return to home country – Some incentives to remain in Australia – Incentives to return to home country outweigh incentives to stay in Australia – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 May 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 April 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The Tribunal is making an oral decision in case 1713643 and the time is now 11 am. The issue in this case is whether clause 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.

4. 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.

5. In the present case the visa applicant seeks a visa for the purposes of visiting his brother Mr Khaled Kanj, the sponsor and family.  This is a purpose for which a visa in the sponsored family stream may be granted.  The applicant and sponsor have not seen each other for 10 years as the sponsor has not been able to travel back to Lebanon for any substantial period due to his work commitments.  The applicant has also not met the sponsor's children as yet.

6. In terms of the applicant's background the Tribunal notes the applicant is 39 years of age living in Northern Lebanon.  He is married with four young children, the eldest being nine years of age.

7. The Tribunal has sighted evidence of the applicant having fulltime work in the food industry, an industry he claims to have worked in since 2002 after completing studies in hospitality.

8. A bank in Lebanon has verified that the applicant has the equivalent of roughly $20,000 US in an account.  The Tribunal has not noted a history in savings but accepts that these have been the accumulation of funds saved by the applicant given that he has been working since 2002 and given his salary, which is relatively well paid.

9. The sponsor Mr Khaled Kanj has previously sponsored his mother to Australia, and there is no evidence before the Tribunal that Mr Kanj's mother did not comply with her conditions.

10. In addition, the sponsor's other brother Mr Wassim Kanj had originally been refused by the department and on appeal at the AAT was successful.  Again, there is no adverse event noted against Mr Kanj's travel to Australia on that occasion.

11. A security bond has been offered to support the claim, that the applicant has an incentive to abide by his visa conditions in Australia.

12. In terms of clause 600.2011A being whether the application has complied substantially with the conditions of the last substantive or breaching visa held, the Tribunal notes that the applicant travelled to Australia as a single man in November 2004.  Again, the Tribunal does not have any evidence of an adverse event associated with that visit to Australia.

13. The Tribunal has taken into account the migration agent's arguments, that if the applicant had sought to pave a way to reside in Australia permanently he would have done so previously and not now that he has significant responsibilities, including care for elderly parents in Lebanon.

14. The Tribunal is required to have regard to the circumstances of the applicant himself but considers that positive weight should be attributed to the sponsor's credibility in that he has a solid history of sponsoring family members to Australia who have complied with their visa conditions.

15. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which a visa in the circumstances of this case would be subject such as must not work in Australia, must not engage in study or training in Australia for more than three months, is not entitled to a substantial visa other than a protection visa while remaining in Australia, and must not remain in Australia after end of the permitted stay.

16. The applicant has expressed a desire to remain in Australia for around four weeks.  The Tribunal is satisfied that during that time the applicant will not work unlawfully based on the sponsor's credibility and his understanding of the requirements of the visitor visa.  The Tribunal accepts that the sponsor will take his responsibilities for ensuring the visa applicant will not work in Australia seriously.

17. Given the brief period the applicant will be in Australia the Tribunal accepts that he will not work unlawfully.  Other than a protection visa the Tribunal is unclear what visa the applicant could apply for apart from a student visa.  Given he has family in Lebanon and his work responsibilities there however, the Tribunal is satisfied that he does not intend to come to Australia to change his status onshore.

18. Regarding seeking protection in Australia the Tribunal considers that any such attempt could prove futile as the applicant has stated the conditions in Lebanon are stable and the applicant has a comfortable life there and is not involved in politics or any other circumstances that would lead to him fleeing his country.

19. In terms of overstaying unlawfully in Australia, the Tribunal is satisfied that the sponsor would provide a strong incentive for him not to breach Australia's visitor visa conditions in this way.  And the fact that the applicant has previously departed Australia on expiry of his visitor visa lends support to the Tribunal's assessment that the applicant does not intend to come to Australia for any purpose other than visiting his family.

20. The Tribunal has also taken into account other matters under clause 600.211C. The Tribunal has regard to the applicant's home area in Northern Lebanon where there is instability and pressures on infrastructure and services due to a large number of Syrian refugees making their way into Northern Lebanon to flee harm.

21. (Indistinct) the Tribunal has weighed the circumstances of the applicant carefully and considered that the positive factors raised in this decision outweigh any concerns about the applicant attempting to flee his country for reasons of religion, nationality, race, membership of a particular social group or for economic reasons or for political opinion or for his political opinion.

22. As such the Tribunal remits the application for a visitor visa for reconsideration with the direction that the visa applicant meets clause 600.211 of schedule to the regulations. I am now concluding my decision and the time is 11.14 am.

    DECISION

23. The Tribunal remits the decision under review with the direction that the applicant meets cl.600.211.

    Rosa Gagliardi
    Member