MOHAMAD (Migration)

[2019] AATA 1105

MOHAMAD (Migration) [2019] AATA 1105 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ibrahim Mohamad

VISA APPLICANT:  Mr Ali Mohamad

CASE NUMBER:  1732023

HOME AFFAIRS REFERENCE(S):           BCC2017/4182759

MEMBER:Moira Brophy

DATE:14 March 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 14 March 2019 at 2:50pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting family and tourism – incentive to return to home country – work and family commitments – have not seen brother for two years – other family members' prospects of obtaining Visitor visas in the future – credible witnesses – 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 Immigration on 11 December 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 3 November 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 concerned the purpose of the visit was not a genuine temporary stay.

5. The review applicant, Mr Ibrahim Mohamad appeared before the Tribunal on 11 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Ali Mohamad. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   BACKGROUND

7. The applicant is a 22-year-old national of Lebanon. His parents, two sisters and one brother reside in Lebanon. He has four uncles in Australia, the review applicant being one of them. In his application for a Sponsored Family Visitor visa, he stated that he has been working as a Master Barber at Mister Cut Salon since 2014. He has not been to Australia previously. His travel will be self-funded and his uncle, Mr Ibrahim Mohamad will be providing accommodation.

8. The review applicant, Mr Ibrahim Mohamad, is the uncle of the visa applicant and an Australian Citizen by conferral. He is self-employed as the installer for Elegant Wardrobes Pty Ltd. He has been in that work for over 3 years.

9. The following documents were provided in support of his application for a Sponsored Family visitor visa:

   ·The visa applicant’s passport biometrics

   ·Review applicant’s NAB statement for the period 29 September 2017 to 2 October 2017

   ·Review applicant’s passport biometrics

   ·Review applicant and visa applicant’s extract of family registration

   ·A Certificate from the Syndicate of Hair-Dressing Salons in North Lebanon, dated 27 June 2017, confirming the visa applicant’s employment and good character

   ·A Letter from the visa applicant’s employer, Mr Joseph Gergis, dated 6 October 2017, confirming the applicant’s employment and leave request

10. The following documents were provided to the Tribunal in support of his review:

    ·A photograph, undated

    ·A letter from the review applicant’s dated 16 December 2017

    ·A copy of the passports of the review applicant and his family

    ·Photographs of the visa applicant with the children of the review applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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 his family and tourism. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

14. At the time of hearing the visa applicant told the Tribunal that he had not previously travelled to Australia. He has not travelled outside Lebanon. Both the review applicant and the visa applicant told the Tribunal their mother had recently been in Australia on two occasions in 2015 and 2016. She had complied with the terms of her visa.

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. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit his family. The review applicant said he had not seen his brother for two years. His brother had been employed as a barber since he had commenced work when he was 16. He had recently set up his own business. He has substantially learned the skills of the trade from his previous employer and was now keen to operate his own business. He had discussed with a previous work colleague covering his shop for him while he was away and had agreed on a payment schedule for that to happen. The review applicant considered it would be a good time for his brother to travel and broaden his horizons. The review applicant is an installer for a wardrobe and kitchen business. He would be able to take some time off and show his brother around. The review applicant said his mother had recently visited on two occasions but no other members of his family had applied to come to Australia since he came here. The Tribunal accepts it is the intention of the visa applicant to visit his brother and his family. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

17. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

18. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that he had not seen his brother for two years. He stated he wanted to spend time with him and for his children to spend time with him especially his son. He stated it was difficult for him and his wife and their five children to go to Lebanon because of the costs involved and the difficulties of travelling long distance with young children.

19. The review applicant gave evidence that the visa applicant wants to come to Australia for one month. The visa applicant told the Tribunal that he would stay for one month at the longest. He has arranged to take that amount of time off work but he said if he were to be away for a longer period the new client base he has built up would evaporate. While it was important to him that he be able to spend time with his brother and his children he was also acutely aware that if he were to take too much time away it would result in him losing the clients he had worked so hard to gain. He lives with his parents, an older sister and a younger sister and brother. He would be hesitant to leave his parents on their own for longer than a month as he said they were quite dependent on him as the older male in the family especially his father.  He wanted to ensure he is able to provide both care and companionship to his parents as needed.

20. The Tribunal asked the review applicant what incentives the visa applicant has to return to Lebanon at the end of his permitted stay in Australia.

21. The review applicant responded that his incentives to return are his work and his family. He has his parents, two sisters and one brother in Lebanon. There is the review applicant and three other uncles in Australia. The balance of his family is in Lebanon. When asked what would happen if he comes here, changes his mind and does not want to return to Lebanon, he responded that he loves his job and his family there. He said that would draw him back.

22. The Tribunal has considered the evidence given by the review applicant. He and his wife have five young children, the youngest being eight months. The review applicant has established his own business. He has worked very hard to make a new life in Australia since he came here in 2008 and he wants to show his family the fruits of the labour. The Tribunal accepts it is financially and logistically very difficult for him and his young family to travel back to Lebanon to see his family. The review applicant stated that the visa applicant is law abiding and that all the members of the review applicant's family are also law abiding as was evidenced by his mother complying with her visa conditions when she visited recently. The review applicant said it was important his family members were able to come and visit him  and he understood that could only happen if they complied with the conditions of any visa they were granted.

23. The Tribunal has considered other relevant matters. The review applicant stated that if the Department requires a security bond he was prepared to lodge a bond of around $30,000. He stated that he is confident that his brother will return to Lebanon at the end of his visit.

    Findings

24. Having considered all the evidence, the Tribunal is of the view that the visa applicant and the review applicant are credible witnesses. The Tribunal accepts that the visa applicant has a strong commitment to his work and his parents and siblings in Lebanon and that this would provide a strong incentive for him to return to Lebanon. The Tribunal accepts that he has the financial resources to pay for his trip to Australia. The Tribunal accepts that he does not intend to work, study or undertake any training in Australia. The Tribunal places considerable weight on the fact that he has only applied to visit in the context of his not having seen his brother for two years.

25. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that his family members are able to visit him in Australia and that he will ensure that the visa applicant complies with the conditions of his visa so as not to jeopardize other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of his visa.

26. The Tribunal accepts that the visa applicant's incentives to return to Lebanon outweigh his incentives to remain in Australia after the end of his permitted stay. The Tribunal accepts that he intends complying with the conditions of his visa.

27. 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

28. 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.

    Moira Brophy
    Member