Melhem (Migration)

[2021] AATA 4255

Melhem (Migration) [2021] AATA 4255 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hussein Mahmoud Melhem

VISA APPLICANT:  Mr Mouhamad Melhem

CASE NUMBER:  1924996

HOME AFFAIRS REFERENCE(S):          BCC2019/3916549

MEMBER:Nora Lamont

DATE:31 August 2021

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 31 August 2021 at 8:09am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – length of stay requested – incentives to return to country of residence – security situation in Lebanon – positive history of compliance with visa conditions for review applicant’s family – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 27 August 2019 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 7 August 2019. 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 for the following reasons: [1]

   [1] AAT Folio

   I have noted that the applicant has indicated the presence of family members that will remain
   in Lebanon during their proposed visit to Australia. However, given the applicant's willingness to be separated from these family members for a substantial period of time, the presence of these family members are not sufficient to demonstrate that a genuine visit to Australia is intended.

   In response to the employment status question, the applicant declared that he has been
   employed since 1 November 2006 as a Foreman for Matta Et Associes Sal. In support of this
   claim, the applicant provided an employment letter, dated 29 July 2019. While the applicant’s
   employment claims are not doubted, given that the applicant is willing to be absent from
   their employment for an extended period of time, I am not satisfied that the applicant’s
   employment offers a strong incentive for the applicant to depart Australia within the validity of his visa.

   In assessing the applicant’s intentions for their intended visit to Australia, I have taken both
   the applicant’s personal circumstances and duration of the applicant’s intended travel into
   account. Whilst I have noted the applicant’s reason for travel I find that the length of stay
   requested is inconsistent with a person who claims to be employed and has a young family
   to support. I therefore have concerns that the applicant may intend to travel to Australia for
   reasons other than a genuine visit.

   I have also considered the applicant’s personal circumstances in their home country that
   may encourage them to remain in Australia. Recent reports from the Department of Foreign
   Affairs and Trade (DFAT) indicate that Lebanon is currently experiencing an unpredictable
   security situation, due to the threat of terrorist attacks and ongoing political and sectarian
   tensions. While I accept that the applicant may not be directly affected by the unpredictable
   security situation occurring in parts of Lebanon, the unpredictable security situation may encourage the applicant to remain in Australia after the expiry of any visa, should it be granted.

5. The review applicant appeared before the Tribunal on 26 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his sisters and brothers. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. 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)).

10. The applicant has not been to Australia before, nor has he had a visa issued or refused. Whilst there is no information on his previous travel to Australia, neither is there any adverse information before the Tribunal. The applicant has travelled to the Ivory Coast for work and complied with the conditions on his visa.

11. The review applicant has sponsored many relatives to come to Australia and all of them have complied with the conditions of their visas.

12. Family members sponsored previously by Hussein Mahmoud Melhem.

    ·Father: Mr. Mahmoud Melhem, DOB 03.11.1940, got his visitor visa but could not come due to unexpected illness. Died on 06.01.2017

    ·Sister: Mrs. Samaher Melhem, DOB 02.01. 1977, came in 2006

    ·Sister: Mrs. Asmahan Melhem, DOB 15.11.1968, came in 2011 and 2014 (sponsored by her son)

    ·Sister: Mrs. Samira Melhem, DOB 09.03.1975, came in 2014

    ·Sister: Mrs. Amne Melhem, DOB 11.10.1978, came in 2015

    ·Nephew: Mrs. Mohamad Melhem, DOB 20.08.1988, came twice, the first in 2007 and again in late the same year or the following year

13. The Tribunal considers that the family has a long history of compliance with their visa conditions.

14. 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.

15. The Tribunal has considered that the applicant would comply with the conditions on his visa, given the compliance of other family members. In the Tribunal hearing the review applicant was adamant that anyone he sponsored would abide by the conditions on their visa as he knows the implications if they do not.

16. The visa applicant has a wife and eight children in Lebanon. His children range in age from 8 to 23 years of age. He was working for a company that did work through the port and since the port explosion he has not had that work as he is awaiting the works at the port to be completed. In the meantime, he has started a small business but is well off and owns land and assets.

17. The visa applicant has not only his two brothers but two sisters and many nieces’ nephews in Australia.

18. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The applicant has a wife, eight children, a business, land and a house he owns in Lebanon. This combined with the family history of compliance with visa conditions is a strong incentive for the applicant to return to Lebanon at the expiry of his visa.

19. The review applicant has a business and family and has expressly told the Tribunal that noncompliance is not an issue as he would not allow a relative to not comply with their visa conditions. The Tribunal considers that this is a strong incentive for the applicant to comply.

20. The Tribunal has considered the current country information for Lebanon. There has been a long history of instability and security issues, however in this case the Tribunal upon reflection does not believe it is a factor for this particular applicant. He has a good financial position, a large immediate family, land and assets and the Tribunal does not find that he is concerned or would be concerned with any security issues.

21. Overall, the Tribunal is satisfied that the applicant intends to come to Australia for a genuine visit with his extended family.

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.

    Nora Lamont
    Member