Omar (Migration)

[2020] AATA 1059

Omar (Migration) [2020] AATA 1059 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nazek Omar

VISA APPLICANT:  Mr Dommar Omar

CASE NUMBER:  1832986

HOME AFFAIRS REFERENCE(S):          BCC2018/3580572

MEMBER:Margie Bourke

DATE:16 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 16 April 2020 at 10:20am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream –genuine temporary stay criterion –inconsistent evidence –evidence of the visa applicant’s employment not reliable – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 359

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 23 October 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 20 September 2018. 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 fees are applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 27 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and his wife Mrs Anastashiia Kovalenko who both gave evidence via telephone, and the review applicant’s sister 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. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Cl.600.211(a)

10. 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)).

11. There is no evidence that the visa applicant has ever travelled to Australia or been the holder of a substantive or bridging visa in Australia. There is therefore no evidence of substantial compliance or non-compliance with an Australian visa. These are applicant stated that he did travel out of Lebanon on one occasion prior to his marriage when he travelled to Jordan.

    Cl.600.211(b)

12. 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.

13. I accept the visa applicant is married to Anastasia Kovalenko, and they have two children, and the family live in Lebanon. I accept based on the written and oral evidence before me that the visa applicant’s wife is a citizen of Ukraine, and their children are aged three and seven years. I have considered the evidence of the visa applicant’s wife, and give serious weight to her evidence that the visa applicant loves his children and his family too much not to return to them. I accept her evidence that she considers it is a good thing for the visa applicant to travel to Australia to see his family there altogether for a period of time.

14. I am satisfied that the review applicant and the visa applicant are two of 14 siblings, seven brothers and seven sisters, all of whom are married. I accept that six of the siblings reside in Australia and eight of the siblings reside in Lebanon. I accept that their parents are deceased. I have considered the evidence that the visa applicant wishes to travel to Australia to visit and spend time with family members who reside in Australia.

15. I am concerned by the evidence provided in support of the claim of the visa applicant that he is employed and his ongoing employment is one of the main incentives that he will return to Lebanon. The applicant provided a letter of confirmation of his employment to the Department. The letter provided only included the translation and not the copy of the original. The translated letter stated the applicant was employed by the Omar Electricity Generator Company but the translation did not record that there was any letterhead or stamp on the letter, the letter recorded telephone numbers for the company, the translated letter stated that the applicant had been employed by the company for “more than three years i.e. 2015”, the letter was not dated, the letter stated the applicant was granted “a leave” to visit his relatives in Australia, and recorded his monthly salary.

16. The review applicant provided a translated letter with a copy of the original letter to the Tribunal confirming the employment of the visa applicant. This letter was dated 1 February 2020, it provided one telephone number which was different to the two telephone numbers provided on the previous letter, it named the company  Alomar for Electricity Generating, the translated letter stated the applicant had been working at the company for more than eight years, recorded the same monthly salary, recorded his employer would give him one month vacation to visit his relatives in Australia, and again there was no letterhead or stamp on the letter recorded in the translation or noticeable on the copy provided. This letter stated the business had three branches, and provided the three locations for the three branches.

17. In that the Department decision record dated 23 October 2018, the delegate had noted the applicant had recorded an intention to travel for two months on his application form and concluded this was not consistent with a person of working age and the sole income earner for a young family. The delegate had concluded that the applicant had not intended to genuinely visit Australia and had not demonstrated that he intended to return to live with the members of his young family. I discussed with the review applicant and the visa applicant in the hearing the length of the proposed stay. The review applicant stated that the visa applicant originally indicated he would take one months’ leave but if he was entitled to more he would stay for longer. The visa applicant stated he applied for two months because his employer had told him he could take two months leave. The visa applicant stated he had “honestly” spoken to his employer a while ago and they had agreed he could have two months leave. He stated he could not be away from his wife and children for more than two months. He did not know why the letter from his employer stated he had been approved for only one months’ leave.

18. I discussed with the review applicant and the visa applicant that there was some discrepancies between these two letters from the visa applicant’s employer that had been provided to the Department and the Tribunal. I discussed that the letters recorded differences in length of time that the visa applicant had worked for the employer, that the first letter simply noted the visa applicant was entitled to “a leave”, and the later letter specified that he had been approved for one months’ leave. The visa applicant stated the employer’s telephone number had not changed, and yet the letters have different telephone numbers on them. I also discussed why the letters did not have a letterhead or stamp or some formality on them to confirm the letter was from the visa applicant’s employer. The representative submitted that from his personal knowledge Lebanese businesses did not use letterheads or stamps or other business identification. I discussed that I found it unlikely for an electricity supply business of some size, in any country, not to have some form of business identification on its correspondence and invoices.

19. I discussed with the review applicant that the second letter, which indicated the visa applicant had been granted one months’ leave, seemed to have been provided to address the concerns of the Department’s decision record in relation to the length of leave sought being inconsistent with his employment. I discussed that I had some concerns that the letter was generated to satisfy the concerns of the migration authorities rather than a letter that genuinely represented the visa applicant’s employment situation. The tribunal needs to be satisfied that the documents provided in support of the application are genuine and reliable, as evidence of the visa applicant’s employment. The tribunal needs to be satisfied that the letters from the employer are evidence of the visa applicant’s genuine intention to return to resume his employment.

20. The visa applicant stated that unemployment rates in the province of Akkar where he works at the moment are good. He stated everyone is working all is normal. He stated he had never had to apply for employment so he did not know if it was difficult. I discussed with the review applicant that I had no direct knowledge of the situation in North Lebanon, but that  the tribunal had considered the country information from DFAT reports that indicate that, particularly after the Syrian conflict and consequent refugee crisis which affected North Lebanon, unemployment is an issue in North Lebanon and the Akkar province. The Tribunal accepts that situations can fluctuate, and vary from village to village and across North Lebanon.

21. However, the real issue for this review is whether the information before the Tribunal in relation to the visa applicant’s employment is reliable.

22. At the conclusion of the hearing the Tribunal allowed the review applicant time to provide further information clarifying information in relation to the visa applicant’s employment. In particular the Tribunal discussed with the review applicant’s representative whether information could be provided from the visa applicants employer in relation to the differences in the two documents that have been provided to the Department and to the Tribunal in relation to the length of time the visa applicant had worked for the employer, the differences in the specifics about the leave the visa applicant was entitled to, the differences in the telephone numbers of the employer provided in the letters, and any information in relation to why a letterhead, or stamp or formal identification of the business was not provided in the letter or letters. 

23. The review applicant provided a letter from the visa applicant’s employer after the hearing. This third letter was also not on letterhead, and without any logo or stamp.  The copy of the letter and the translated copy was provided. The letter is dated 28 February 2020.  The author of the letter states he wrote the previous two letters, he is the owner of the company, he employs the visa applicant and that he has no official or formal letterhead or logo for his company.  The author of the letter states the visa applicant has been employed for eight years but does not refer to the first letter’s statement that the visa applicant had been employed for more than three years (at the time of the letter) since 2015. The author states the mobile telephone number on the first letter became obsolete.  The author states he provided the second letter because he was requested to do so. The author states he agreed to give the visa applicant one months’ leave, and discussed the possibility of extending this period if the visa applicant asked for an extension as soon as he visited Australia.

24. I have concerns that the letters are genuinely from an employer of the visa applicant.  There is no explanation as to why the same person who claims to be the employer and wrote the letters records in the first letter that the visa applicant had been employed since 2015, and subsequently claims in the two letters dated 2020 that the visa applicant had been employed for eight years (or since 2012). I have doubts that a company with three branches would not have a letterhead or logo or stamp, and never provides a business registration number.

25. I have considered the employer initially indicated he had granted “a leave” in 2018 when the application for the visa was made, and subsequently recorded that he had granted the visa applicant one months’ leave in the letter dated 1 February 2020. I have considered that the employer then states in the third letter dated the day after the hearing, that he would give the visa applicant one months’ leave but they discussed that he would extend that if the visa applicant requested more time if he asks for it as soon as he visited Australia. The employer states in the third letter he had not said this in the previous letter as the visa applicant is a valuable employee.  The reason for not recording the arrangements for leave because he values the visa applicant is not credible.  In the hearing the visa applicant stated that his employer told him he could have two months’ leave. I am not satisfied that the letter provided from the employer dated 28 February 2020 is evidence that explains why the employer’s previous letter only recorded one months’ leave.

26. I have considered the copies and translations of the letters provided to the Department and to the tribunal, claimed to be from the visa applicant’s employer. After assessing the letters, including the discrepancies in the time recorded that the visa applicant was employed by the employer, and the period of time approved for leave and the arrangements made for the visa applicant’s leave, I am not satisfied that the letters are genuine letters from the visa applicant’s employer.

27. In reaching my findings I have taken into account that the letters do not have any formal or official letterhead, company registration identification, or business stamp. The letters could have been drafted on an application like ‘Word’ by anyone. There is little country information in relation to whether companies or businesses in Northern Lebanon usually have a formal letterhead, or logo or stamp to identify their company or business on their correspondence. However the Tribunal was able to ascertain that the Republic of Lebanon Ministry of Justice maintains a Commercial Register of businesses, Lebanese Corporate Registry Records 27 April 2019, Maddocks Insight Ltd, Corporate Intelligence – Due Diligence – Investigations; Further the tribunal accessed a report that recorded it was not mandated by law in Lebanon for companies to use a stamp or logo, but that the majority of companies prefer to have company stamps, and the article advised where the stamps could be ordered and purchased, Doing Business 2020, Economy Profile Lebanon, Comparing Business Regulations in 190 Economies, World Bank Group, The tribunal considered this information applied to Lebanon which is relevant to Northern Lebanon, although the discussion of business practices in the hearing was limited to northern Lebanon. The tribunal considered the letters provided referred to the employment business as a company, that conducted business in three branches. The tribunal is of the view that the information that Lebanon has a registry for companies, and the majority of companies in Lebanon prefer to have company stamps is relevant to the consideration of whether the letters provided as letters from the employer are genuine and reliable.

28. The tribunal put this information to the review applicant after the hearing applicant pursuant to s.359A in a letter dated 16 March 2020, and invited the review applicant to provide his written responses within fourteen days. On 23 March 2020 the review applicant requested an extension of time to provide the responses, and the extension of a further fourteen days, until 14 April 2020, was granted by the tribunal.

29. The review applicant provided the written responses, which included a submission from the representative and three attached documents, which were received on 14 April 2020.  The submission response stated that the review applicant did not submit in the hearing that all businesses in North Lebanon did not have company stamps.  The submission accepts the information provided by the tribunal, and emphasises that it is not mandatory to be registered and not all business have company stamps or logos, particularly smaller businesses. The submission suggests that the fact the visa applicant’s employer did not have a company stamp did not indicate it was not a bona fide business. The response from the review applicant was that the visa applicant’s employer was a genuine business, and attached documents in support of this claim which included the employer’s tax receipts, photographs of old signage of the business (which the submission stated had different telephone numbers than in the letters previously provided) and a letter from the municipality confirming the operation of the business.

30. The information in response to the s.359A information supports the information obtained by the tribunal that most businesses and companies in North Lebanon use company stamps or logos, and particularly larger businesses. I am satisfied based on the information and evidence before me that businesses, and particularly larger businesses and companies in North Lebanon, usually use a company stamp.

31. I accept that the business of which the visa applicant claims to be an employee is known to the municipality, and has three branches. I find that it is a larger type business, and would usually have a company stamp. The documents attached to the responses to the s.359A invitation confirm the existence of the business, but do not confirm whether the visa applicant is an employee, or whether the business uses a company stamp or logo.

32. I am not satisfied that the information provided has satisfied me that the visa applicant is employed by the business as claimed. I am not satisfied that the evidence before me is reliable evidence of the visa applicant’s employment. I am not satisfied that the evidence before me is reliable evidence of the visa applicant’s intention to return to Lebanon to his employment.

1. I am not satisfied the copies and translated letters provided to the Department and to the tribunal, are evidence that the visa applicant has been in long term employment, and has been granted leave, and has employment to return to.  I am not satisfied that the visa applicant has provided genuine information and documents about his personal circumstances, namely his employment.

2. I have considered the evidence of the visa applicant’s wife, and other personal circumstances of the visa applicant, and I have given that evidence weight. I have balanced this evidence with my assessment of the reliability of the letters provided from the visa applicant’s employer.  Overall, I am not satisfied that the visa applicant does not intend to work in Australia, or to return to Lebanon before the expiration of his visa. I am not satisfied that the visa applicant genuinely intends to comply with the terms to which the visitor visa would be subject.

   Cl.600.211(c)

3. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal accepts that the review applicant previously applied to sponsor the visa applicant to visit her in 2012, and this application for a visitor visa was also refused. The Tribunal accepts that other relatives of the review applicant have been sponsored by other members of the family on visitor visas, and have complied with the terms of their visas. These family members include the review applicant’s sister who came to Australia as the holder of a visitor visa in 2017, the review applicant’s brother who came to Australia as the holder of a visitor visa in 2017, and another sister of the review applicant who came to Australia in approximately 2010 as the holder of a visitor visa. I accept that it is relevant to this review that other family members have complied with the terms of their visitor visas and returned to Lebanon before the expiration of their visas.

4. I have also considered that the review applicant has lived in Australia for 25 years, and returned to Lebanon to visit family members on four occasions. I am satisfied that the last time the review applicant returned to Lebanon was in 2016. I accept that the visa applicant was working and only saw the review applicant, his sister, on a few occasions and for short periods of time. These factors are relevant to my assessment of whether the visa applicant meets the criteria, but do not outweigh my conclusions that I am not satisfied that the visa applicant genuinely intends to comply with the terms of the visa.

5. For the above reasons the Tribunal is not 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 not met.

   DECISION

6. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Margie Bourke
   Member