Obeid (Migration)

[2017] AATA 2048

Obeid (Migration) [2017] AATA 2048 (18 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Obeid

VISA APPLICANT:  Mr Adnan Obeid

CASE NUMBER:  1705292

DIBP REFERENCE(S):  BCC2017/490594

MEMBER:Meena Sripathy

DATE:18 October 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 18 OCTOBER 2017 AT 4:52PM

CATCHWORDS
Migration – Visitor (Class FA) – Subclass 600 (Visitor) visa – Compliant past visits by family – Visa applicant’s own past travel – No income security or safety concerns

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 600.211, 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 2 March 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 2 February 2017. 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’s intention to only remain in Australia temporarily is genuine, having regard to country conditions in North Lebanon and the applicant’s personal circumstances.

5. The review applicant appeared before the Tribunal on 18 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and Hussain Obeid, the visa applicant’s brother.  The Tribunal hearing waas 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 visa applicant is a 26 year old single man from El Minieh, North Lebanon. His application indicates he has a mother and one brother in Lebanon, 2 brothers in Germany and 2 brothers in Australia.  He indicates he owns a car trading business in North Tripoli since October 2014. He indicates that he has not previously been refused or not complied with a visa in Australia. (However he also submitted a Form 1221 indicating he has been refused a Visitor Visa on 4 previous occasions.) The applicant is sponsored by his brother (the review applicant) who is a 34 year old Australian permanent resident.  The review applicant is self employed, with his own Tree Service business.  

8. The visa applicant submitted copies of his passport indicating past trips to Germany in recent years, evidence of registration certificate for his trade store, 3 year lease for trade store from July 2014, family register; bank statement; and evidence of review applicant’s bank statement in Australia, and Subclass 801 visa grant notice.

9. Information in the delegate’s decision record states that department records indicate the visa  applicant has been refused Sponsored visitor visas on 6 occasions between 2011 and 2014.  It is acknowledged that he declared that he had been refused visas over 4 years via Departmental Form 1221.

10. Before the Tribunal, the review applicant provided information and evidence of 4 previous compliant visits by his mother (Rawak Obeid) and brother (Mohamad Obeid); and Schengan visas held by the visa applicant and his travel to Germany.

11. At the hearing the review applicant gave evidence about his background and circumstances and that of the visa applicant.  He lives in Greenacre with his wife and has a child on the way.  His brother also lives in Greenacre, close by, with his wife and 4 children, and also has a child on the way.  The review applicant is self employed in his own gardening business. He employs 2-4 people as needed for jobs. Other than his brother the review applicant has an aunty from his paternal side and 2 uncles from his maternal side, and their respective families, in Australia.  They all migrated to Australia many years ago.  His brother Hussain came here in 2007, sponsored by his present wife.  The review applicant also came to Australia sponsored by a fiancé, whom he subsequently married, but later divorced. The review applicant had visited once before he returned as a fiancé. 

12. Regarding the rest of his family, he has his mother and two brothers in Lebanon and one sister and one brother in Germany.   His siblings in Germany both went there with their spouses 6 and 10 years ago respectively. The visa applicant has travelled to Germany on 3 occasions in recent years, for business purposes to buy car parts and also to visit his siblings.  In Lebanon he lives with his mother and younger brother in the family home.  He has a car parts business which he established in 2014.  He is the only breadwinner in the family, and makes a reasonable income of around USD$3000 per month.  The review applicant told the Tribunal his income is sufficient for himself, although he and his brother in Australia regularly send income to support their mother and younger brother’s study. 

13. The Tribunal discussed with the review applicant independent information before it[1] which indicates the security and economic situation in North Lebanon is volatile and that especially since the war in Syria the economic situation in North Lebanon has been under pressure and its concern that these factors may discourage the visa applicant from returning or be the reason he may seek to work in Australia.  In response to these concerns, the review applicant told the Tribunal he does not believe poverty is an issue in El Mineh.  He claims it was recently rated the best town in North Lebanon and is much better off than Tripoli.  Regarding compliance with the visa conditions, he said he has no concern the visa applicant won’t comply and referred to his mother and brother’s past compliant visits as a strong indicator of their record. He would never let the visa applicant undermine his credibility with the Immigration Department.  He is prepared to provide a financial security to guarantee his compliance, although he was never been asked to provide one in respect of his mother or brother before.  Regarding its concern that the visa applicant may seek to work for the review applicant’s business, the review applicant said he would not because he is coming for a holiday not to work.  He has enough work in Lebanon and is doing well and has no need for additional income.  He has spent a lot of effort to establish his business there and would not jeopardise it by staying on here.

    [1] DFAT Country Information Report Lebanon 18 December 2015, pp 5, 7; Issues Paper, Security Situation in Northern Lebanon, COISS, 9 November 2016,  pp 2, 18-20.

14. The review applicant confirmed that he travels back to North Lebanon regularly and has never had any security or other issues.  His brother Hussain has also been back and has taken his young son on 2 occasions.

15. The Tribunal took evidence from the visa applicant by telephone.  He confirmed his intention was to come for a visit to his brothers and their families for a period of 4 weeks.  He said he lives with his mother and brother in the family home.  He has a car parts business, established since 2014. He makes around USD$2500-3000 per month which is sufficient for his needs.  In response to the Tribunal’s concerns about country conditions, the visa applicant said his business is doing well and he has no economic concerns in Lebanon and the security situation in El Mineh is very calm.  He said recently the Australian Ambassador visited this town and he was there to greet him, this is proof that it is safe and there are no issues.  The visa applicant confirmed he has travelled to Germany 3 times in 2015 and 2016 for business reasons and returned to Lebanon.  He reiterated his intentions are only to visit his family members and return to his business and life in Lebanon. He also mentioned to the Tribunal while single, he has a girlfriend in Lebanon and has plans to marry her in future. 

16. The applicants’ brother Hussain told the Tribunal he has travelled back to Lebanon several times since he came here in 2007.  He has taken his son with him twice.  Their home area is safe and they have never had any issues.  He said the visa applicant is financially well off in Lebanon.  He has put in a lot of money into establishing his business and has 3 employees.  He would not abandon that to stay here.  He just wants to come and visit his brothers and nieces and nephews. 

17. The Tribunal explained to the review applicant, visa applicant and his brother the consequences of non compliance for the review applicant including the ban on future sponsorships.  Hussain and the review applicant noted that they are well aware of this and would not want to jeopardise future visits by their mother and other relatives. 

18. 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.

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

20. 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 visa applicant has not travelled to Australia previously so he has no personal migration history to consider. 

21. 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.  Although the visa applicant has no past visa compliance history in respect of himself in Australia, the Tribunal has considered compliant past visits by the applicants’ mother and brother on 4 occasions, and the visa applicant’s previous  visits to Germany and considers these matters are indicators that he would also comply with conditions if granted a visa here.

22. 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 26 year old single man living with his mother and younger brother in his home village in North Lebanon.  He has his own business into which he has invested a substantial amount of his own resources and is doing well.  Evidence of his bank statement indicating significant savings has been provided which support these claims. The Tribunal accepts that the visa applicant has close family ties, an established business and secure accommodation in Lebanon and these are strong incentives for him to return at the end of a visit.  

23. The Tribunal has also taken into consideration and places significant weight on the compliant past visit history of his mother and brother, on 4 previous occasions between 2010 and 2016 and the visa applicant’s own past travel to Germany and return to Lebanon from there. 

24. The Tribunal has considered independent information about country conditions, particularly economic and security pressures in North Lebanon, but in relation to this, it gives weight to the applicants’ responses that their particular area, El Mineh is calm and secure and the visa applicant’s business is doing well and he has not experienced any income security or safety concerns. He has travelled out of Lebanon to Germany several times in recent years.  The Tribunal accepts that if he was fearful for his safety or in financial need he had opportunities to not return to Lebanon from Germany, where he also has 2 siblings, but he did not remain there. The Tribunal also takes into consideration the evidence that the review applicant, his brother, and his brother’s young child have travelled to El Mineh several times in recent years and experienced no security or other concerns and finds that this supports the claims that the applicants’ have made about the relative security and stability in their area.

25. Finally, the review applicant has indicated he is prepared to provide a financial security, of any amount requested.  He and his brothers are fully aware of the consequences of forfeiture of the security for non-compliance and the ban on future sponsorships.  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 especially given the significance to them of visits by their mother in future years. 

26. Having regard to all of the circumstances and material before it, there is no basis for the Tribunal to believe the visa applicant will not comply with the no work and return conditions.

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.

    Meena Sripathy
    Member