Khoury (Migration)

[2019] AATA 4100

Khoury (Migration) [2019] AATA 4100 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Foutine Khoury

VISA APPLICANT:  Mr Assaad Khalil

CASE NUMBER:  1803828

HOME AFFAIRS REFERENCE(S):           BCC2017/4879054

MEMBER:Meena Sripathy

DATE:9 July 2019

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 09 July 2019 at 3:03pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Sponsored Family stream – genuinely intends to stay temporarily in Australia – family member’s wedding – strong incentives to return home – family – employment – assets – financial stability – no adverse migration history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Conditions 8201, 8503 8531

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 31 January 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 19 December 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 the delegate was not satisfied the visa applicant’s intention to only visit Australia was genuine.

5. The review applicant appeared before the Tribunal on 9 July 219 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The review applicant’s daughter Nada Khoury attended in the capacity of representative of the review applicant in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant is a 60 year old married man from Zgharta, North Lebanon.  He has a wife, four adult children, an elderly father, two brothers and two sisters in Lebanon, and one sister in the USA.  He is self employed, with his own business for the past 10 years.  He seeks to visit his aunty in Australia, and has previously been refused a visitor visa in 2016.  He is sponsored by his aunty, an Australian citizen.

8. The visa applicant provided the following documents in support of his application: a letter from the Town Councilor of Mazraat Altoufah confirming the applicant’s has been working in the field of Gypsum Decoration for more than 10 years, letter confirming the applicant has been employed by Jawad A Ramia as a Gypsum Decorator since more than one year at a wage of USD1,000 a month; title deed of a property in the applicant’s name; extracts of family registration of the applicant’s immediate and mother’s family to establish his relationship with the sponsor; sponsor’s Australian passport and bank statement.

9. Before the Tribunal the review applicant (sponsor) provided the following further information:

   ·A letter stating the visa applicant is employed at Ramia Construction Company since September 2014 as a plasterer, with an annual salary of USD15,000.

   ·Family photos of the visa applicant.

   ·Review applicant’s bank statement and bank statement of Nada Khoury.

   ·Letter from review applicant and Nada Khoury providing further background information about the visa applicant’s circumstances.

   ·Photos of the visa applicant’s jobs completed in Lebanon

   ·List of relatives who have previously visited the review applicant in Australia

   ·Title deed of visa applicant’s property in Lebanon.

10. At the hearing the Tribunal took oral evidence from the review applicant and the visa applicant by telephone.  The review applicant gave evidence about her own family and migration background and her knowledge of the visa applicant’s circumstances. The visa applicant’s evidence about his own circumstances was consistent with her evidence. The review and visa applicants were frank, forthcoming and honest in responding to the Tribunal’s questions and the Tribunal finds them to be credible witnesses and accepts their oral evidence on this basis.  Details of the evidence they gave is included in the discussion below.

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant and her family in Australia.  Before the Tribunal the review applicant mentioned that since the application was made, her youngest son’s marriage has been organised to be held on 1 September 2019 and they would very much like the visa applicant to attend this event if possible, although it was not the original purpose of his application and he wanted to visit Australia regardless of this occasion. The Tribunal accepts that visiting relatives in Australia is a valid and reasonable purpose, as is also attending a family member’s wedding. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.

13. 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)). The review and visa applicants gave consistent evidence that the visa applicant has not travelled to Australia previously, which is also confirmed in department records, and there is therefore no relevant personal migration history to take into consideration.

14. The Tribunal asked the review applicant about visits by other close relatives in recent years. She indicated that her brother (the visa applicant’s father) and her sister and one of her other relatives have visited previously.  They are travelled and returned within the visa period.  This is confirmed in departmental movement records for these individuals.  She also indicated that the nephew was sponsored for the visa by her son, who paid a security bond which was subsequently returned to him.  No other information before the Tribunal indicates any adverse migration history on the part of the applicants or any of their close personal relatives.  The Tribunal asked the review applicant about her extended family in Lebanon and she indicated that all her siblings and their children, with the exception of two, live in Lebanon.  Of the two who do not, one married an American and went to live there, and one nephew, Robert Aziz, lives in Australia. Departmental records confirm he is an Australian citizen and there is nothing adverse in his migration history in the information before the Tribunal. 

15. 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.

16. The Tribunal discussed these conditions with the review applicant and visa applicant.  They both responded that the visa applicant has no intention or need to work, as he has steady and stable employment and only wants to come for a holiday.  He has family and work commitments at home and will return within the visa period.  The Tribunal discussed with each of the applicants the responsibility of sponsorship and implications for the sponsor of non-compliance and is satisfied that they each fully understand this. 

17. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal discussed with the applicants the visa applicant’s circumstances in Lebanon.  On the basis of their consistent evidence and documents provided in support, it makes the following findings. The visa applicant is a married man with four adult children.  The visa applicant lives with his wife and two unmarried sons, in a property owned by his father.  His father lives downstairs in the same building where they reside upstairs.  The visa applicant stated that he also has another property at Mejdlaya (title deed of which has been provided to the Tribunal). His two daughters are married and live separately.  One has two children of her own and the other is expecting a child shortly. They live close by and the visa applicant sees them regularly.  The visa applicant works as a plasterer, and does much of his work for an engineering company since 2014.  His work is ongoing and steady.  He is the main breadwinner for his family.  One son is studying and still dependent on him. In Australia the visa applicant has one aunty, her children and their families.

18. The Tribunal asked the visa applicant why he has not sought to visit Australia in the past. He said he did not previously feel he was in a position to, as he was focussed on raising his family and working.  Now his children are grown up, two are married and independent, one son is working and so he feels he is in a position to take a holiday to visit his relatives. 

19. The Tribunal discussed with the review applicant and visa applicant country information before it regarding the country conditions in North Lebanon in particular, which may be a disincentive for him to return.  In particular it referred to information which indicates that the influx of a substantial number of Syrian refugees into North Lebanon since the conflict in that country has put great economic pressure on North Lebanon and led to high rates of poverty, pressures on housing and jobs, and a degree of insecurity and sectarian divisions.[1] In response the visa applicant said that the situation of Syrian refugees has had no impact on his life or his area.  He has his house, job and family and is not negatively affected.  

    [1] See DFAT Country Information Report on Lebanon 19 March 2019, p 9, 15.

20. The Tribunal has carefully considered all of the evidence and supporting documents provided, and the applicants’ responses to the issues raised with them at the hearing.  On the evidence before it, the Tribunal accepts that the visa applicant has close family ties and responsibilities in Lebanon.  He has ongoing and stable employment and is financially secure and comfortable.  He is at the middle stage of life, with a wife, elderly father, children and grandchildren all living close by to him.  These are all strong incentives to encourage him to return home at the end of a visit.  On the other hand, the presence of extended relatives in Australia and relative peace and prosperity of this country compared to the economic and security pressures facing North Lebanon currently, could be factors that discourage his from returning. The Tribunal accepts that adverse country conditions in a visa applicant’s home country may be a factor that could encourage visa holders to remain in Australia, however the particular circumstances of each applicant must be considered. In the present case, the Tribunal considers the applicant’s age, family and work circumstances, together with the absence of any adverse migration history on the part of the applicants or any other close relatives, suggest that the incentives for him to comply with conditions and return within the visa period far outweigh the factors that would encourage him to remain.

21. 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

22. 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.

    Meena Sripathy
    Member