MEZHER (Migration)

[2017] AATA 2451

MEZHER (Migration) [2017] AATA 2451 (21 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs FAYROUZ MEZHER

VISA APPLICANT:  Mr HANNA BOUTROUS

CASE NUMBER:  1707190

DIBP REFERENCE(S):  BCC2017/46473

MEMBER:Meena Sripathy

DATE:21 November 2017

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 21 November 2017 at 12:24pm

CATCHWORDS
Migration –Visitor (Class FA) visas – Subclass 600 (Visitor) – Sponsored Family stream – Intention to visit temporarily – Family ties in Lebanon – Previous compliant visits to Australia

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 Schedule 2 cls 600.211(a)-(c), 600.231

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 8 February 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 30 December 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 that the applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 20 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant  and the review applicant’s brother, Mr Alfred Boutros, who attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa applicant is a 22 single man from Zghartaghrine, North Lebanon.  He has no dependent family members, but he has parents, a brother and a sister who live in his home town. He is sponsored by his aunty, the sister of his mother, who is a 49 year old Australian citizen.

9. Attached with the application were the following supporting documents: letter evidencing employment for past 3 years as a tiler in Zgharta; passport showing travel stamps and visas relating to past trips to Australia in 2008 and 2011; visa applicant’s family register showing he is a Maronite Christian and has parents and 2 siblings; family register of visa applicant’s mother showing her relationship as one of 6 siblings of the review applicant; visa applicant and review applicant ‘s bank statements.

10. Before the Tribunal the review applicant provided updated letter evidencing the visa applicant’s employment and updated bank statement.

11. At the hearing the review applicant confirmed the visa applicant is her sister’s son.  The review applicant lives in a house she owns, with her husband and 4 children aged between 22 and 16 years.  She and her husband are both working full time. She came to Australia in 1994 as the spouse of her Australian born husband. She has two brothers living in Australia.

12. The Tribunal discussed with the review applicant her brother Alfred’s migration history.  She confirmed that she sponsored him for a visitor visa in 1995.  She said he later met his wife here and returned to Lebanon and came back on a partner visa.  He is with the same wife to date and they have 4 children together.  The Tribunal noted that Department records show that he overstayed his visitor visa by almost one year before returning to Lebanon. It put to her that this is relevant because it shows an adverse migration history by a close family member and may reflect poorly on the whether the visa applicant’s is likely to comply. The review applicant did not appear to know this history.  She said that she was not familiar with the laws in those days as it was soon after she came to Australia.  She said she has since sponsored other family members and they have all complied.  She will not allow the visa applicant to fail to comply. She will personally accompany him to the airport.

13. The Tribunal noted that her brother Albert came on a visitor visa in 2003 and complied with the conditions, before returning on a work visa and subsequently obtaining permanent residence.   

14. In Lebanon the review applicant has three sisters and their families.  Her parents have both passed away in the past couple of years. Of her nieces and nephews only one is outside Lebanon, a niece who married a distant relative in Australia.

15. The visa applicant lives with his parents and siblings in the family home.  He works as a tiler with the same employer as his father.  He has stable and ongoing employment and earns good income.  He contributes to the family income and they rely on his financial contribution. He is single. The review applicant had no knowledge of any plans for him to marry in the near future.  In his evidence to the Tribunal the visa applicant said he is in a serious relationship with a woman for the past year and would like to marry in future.

16. The Tribunal asked the review applicant why she has sponsored this nephew in particular to visit.  She said she went to Lebanon in 2014 with her family and he looked after them well and took them to many places and she wants to reciprocate. She has plans to sponsor him for a visit first and then when he returns to sponsor another of her sister’s sons. 

17. The Tribunal asked the review applicant if she has sponsored any other family members since her brothers.  She said she has not. Later in the hearing she clarified that she sponsored her parents and also the visa applicant when he was a minor. They all came and complied with visa conditions.  Departmental records confirms that her father and mother made five and four compliant visits respectively  and the visa applicant also travelled twice in 2008 and 2011, and departed both times within the visa period. 

18. The Tribunal discussed with the review applicant independent information before it, including the most recent country report from DFAT[1] which indicates the political and security situation in Lebanon is volatile and that especially since the war in Syria the economic situation in North Lebanon has been under pressure.  It also referred to the recent development of the resignation of Prime Minister Hariri[2] and put to her that this may indicate a period of uncertainty and volatility in the country. The Tribunal indicated that it may have a concern because of the visa applicant’s young age, single status and the economic and volatile security and political conditions in North Lebanon, he has little incentive to return and he may overstay and work without permission in Australia. In response the review applicant said she would not allow him to do that. He has good work there and his family, and he will return. She said the place he comes from is far from any conflict and he has no security or political concerns there. She said that he is not affected by recent developments of the resignation of the Prime Minister and any potential political crisis in the country.

    [1] DFAT Country Information Report Lebanon 23 October 2017, pp 9-10

    [2] Saad Hariri: I will explain on return to Lebanon, says prime minister, The Guardian, 19 November 2017 L Khoury, Coming to grips with the fear of war in Lebanon, Al Jaeera, 18 November 2017 >

    The Tribunal discussed with the review applicant the sponsorship undertaking and consequences. She was familiar with these and prepared to sponsor him. She said in respect of the history of her brother’s non compliance that she was not familiar with the law and her obligations back then but she understands and will respect it now.

19. The Tribunal took oral evidence by phone from the visa applicant. He gave consistent evidence about his intentions to visit and family and work background. As stated above he also mentioned a girlfriend who he is quite serious about. Apart from his work he referred to having an involvement in working some agricultural land owned by some friends. He indicated he participates in this land and derives some income from it. He said he is not involved in any political or religious groups.

20. In response to the concerns put to him by  the Tribunal about the security, political and economic conditions in North Lebanon, and whether this may be a disincentive for him to return, he said he would not and could not stay in Australia because he has work and more importantly his family in Lebanon. He said his area is very quiet and is not affected by the war or any associated issues.

21. With regard to why the review applicant is sponsoring him he said it was because he took them around when they were last in Lebanon and he likes coming to Australia. He said he is not in contact with his other cousins on a regular basis.

22. The Tribunal took evidence from the review applicant’s brother, Alfred.  He confirmed he came to Australia in 1995 sponsored by the review applicant.  He acknowledged that he overstayed his visa, but said he met his wife at that time and she told him she was handling all the paper work.  The review applicant also stated again that she was unfamiliar with the laws at that time.  If she had known she would not have let him overstay his visa. 

23. The representative summarised that these events took place over 20 years ago and since then the review applicant has sponsored several other family members including the visa applicant and all have complied with visa conditions. In relation to the country information, he reiterated that the area the visa applicant lives in is safe and not affected by the conflict.  

24. 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.

    FINDINGS AND REASONS

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

26. 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)). On the evidence before it the visa applicant has previously visited Australia twice and complied with conditions. On the basis of this evidence the Tribunal finds that the visa applicant has complied with conditions of the last substantive visa held and has a favourable and compliant visa history, although the Tribunal also observes that these past visits were at a time when he was a minor.  Since then he has been refused visitor visas in 2013 and 2014. Also before it, the Tribunal has considered the compliant family visits of the review applicant’s parents and one brother.  While her other brother overstayed his visitor visa in 1997, the Tribunal has considered the explanations provided by him and the review applicant, and that this occurred over 20 years ago now. Taking into consideration  the evidence of the family’s compliance history since then, it accepts that there has been significantly more compliance than non compliance by close family members of the visa applicant and particularly in the more recent years.

27. 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.

28. The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the basis of the evidence before it, the Tribunal accepts the visa applicant is a 22 year old single man who lives with his parents and younger siblings in his home village in North Lebanon. It accepts that though single and with no immediate plans to marry he indicated he is involved in a serious relationship for the past year.  It accepts he works as a tiler and has had a stable job and a reasonable income for the past 4 years. In Australia the visa applicant has his aunt, two uncles and numerous cousins and more distant relatives.  Given these findings, the Tribunal accepts that the applicant has close family ties in Lebanon, as well as stable and ongoing employment and accommodation. On the other hand, he also has close family in Australia and given his young age and trade, he would potentially have work opportunities here.  

29. In considering whether his family ties and opportunity for work in Australia outweighs the factors of his family ties and ongoing employment at home as incentives to comply with visa conditions, the Tribunal takes into consideration, and places significant weight on, the visa applicant and his family members’ previous compliant visits to Australia.

30. The Tribunal has also considered the independent information about country conditions, particularly economic and security pressures in North Lebanon, and recent political developments (being the resignation of Prime Minister Hariri and associated uncertainty it brings) but in relation to this, it gives weight to the applicants’ responses that their particular area, Zghartaghrine, is a majority Christian area and has not in recent times, and is not now, experiencing any security issues. The Tribunal accepts that the visa applicant, his parents siblings and other relatives continue to live and work in the area.  It also takes into consideration that the review applicant travelled to Zghartaghrine in 2014 with her children and made no reference to any security concerns.

31. Finally, the review applicant has indicated she is prepared to provide a financial security of whatever amount requested.  She is aware of the consequences of forfeiture of the security for non-compliance and the ban on future sponsorships.  She indicted her desire and intention to sponsor other nieces and nephews next, and in this context the Tribunal considers the consequences of non compliance with visa conditions for the sponsor, particularly the ban on future sponsorships, is an additional inducement for compliance with visa conditions. 

32. Having considered all of the above Tribunal is satisfied, on balance, that the factors supporting compliance with conditions and timely return by the visa applicant outweigh the generic and purely speculative factors that point towards the possibility of non compliance (being the visa applicant’s age, status as a single male, and country of origin).

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.

    Meena Sripathy
    Member