Ross (Migration)

[2021] AATA 4283

Ross (Migration) [2021] AATA 4283 (24 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Jamie Ross

VISA APPLICANT:  Mrs Hanaa Yayha

CASE NUMBER:  1929218

HOME AFFAIRS REFERENCE(S):          BCC2019/3783125

MEMBER:Mark Bishop

DATE:24 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 September 2021 at 11:03am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – changed circumstances in Lebanon  – not satisfied that visa applicant genuinely intends to stay temporarily in Australia – strong personal ties to Australia – significant deterioration of the economic, social, and security situation in Lebanon –decision under review affirmed

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 Home Affairs on 15 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 31 July 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.

5. The Review Applicant (RA) appeared before the Tribunal on 23 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the Visa Applicant (VA). The cousin of the VA Ms Haddad also gave evidence to the Tribunal. 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 decision under review should be affirmed.

   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 family. 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 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.

11. The delegate made the following findings:

    ·“I am conscious of the applicant's family links to Australia and the circumstances regarding their past immigration history. While I note that the applicant has some family ties to Lebanon, I am not satisfied that the family links outside of Australia are sufficient to act as an incentive for her to depart Australia at the end of her intended stay. Indeed, it appears more likely that applicant would seek to change their status once in Australia in order to remain permanently.

    ·The applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in Australia or other countries. I have concerns that the current instability in Lebanon may act as a disincentive for the applicant to return to Lebanon within the validity of their visa. Since the applicant has not demonstrated that they have previously travelled, complied with their visa conditions and returned home, I cannot be satisfied that the applicant will comply with her visa conditions and depart Australia within the validity of her visa.

    ·To meet the genuine visitor requirement for this visa, visa applicant must demonstrate that their current circumstances support their claims that they intend a genuine visit to Australia and that there is sufficient incentive for them to return to their country of usual residence at the end of the proposed period of the visit. The applicant wishes to visit family. I have considered the support rendered by her family, documents provided in support of this application, and the immigration history of the applicant and family. Whilst I accept that the applicant wishes to visit her relatives, I have placed significantly greater weight on the provision of applicants return to Lebanon. I am not satisfied that the applicant would abide by the conditions subject to which a Sponsored Family Visitor Visa is granted or that the applicant would depart Australia at the end of the requested period of stay.

    ·After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.”

12. In evidence to the Tribunal the RA and VA advised as follows:

    ·She lived in Danhcourt (towards Campbelltown) NSW. She was unmarried, born in Lebanon, an Australian citizen and resident in Australia since 2012.

    ·She was employed full time as a disability worker and earned approximately $70,000 per annum. She was an employee, shareholder and director of the relevant company Everlasting Care in  conjunction with her cousin and witness Ms Haddad.

    ·Her mother the VA, was a widow aged 74 and she lived in Lebanon. She had a surviving brother and sister who lived in Lebanon as well. Her brother provided a lot of assistance to the VA. Her siblings were married and had their own families.

    ·She advised her mother had live-in help, owned her own home, received some sort of government pension, her brother provided practical assistance to their mother, her mother was comfortably off, received preferential treatment in the health and medical system because her brother had been a member of the armed forces and apart from special occasions did not receive any assistance from Australia.

    ·The VA lived in Tripoli in the north of Lebanon.

    ·The RA advised the Tribunal that when her father was alive the VA and her family lived a good life in Lebanon. She advised that anyone who was in the army  or had a child in the army received a range of privileges that went to wages, retirement benefits, health care, hospital access and help at home. The VA agreed this was the case.

    ·The RA advised the Tribunal that the common understanding of problems in Lebanon (the economy, high unemployment, massive decline in the value of the currency, closure of banks, only intermittent power and IT supply) had little application to the VA because she had her own income, access to private generators and had preferential or priority access to fundamental government and health services due to the fact that the son of the VA had been a member of the Lebanese army. The VA confirmed this was correct.

    ·In fact the RA advised the Tribunal the VA was living a good life compared to most others in Lebanon. The VA confirmed this was correct.

    ·The RA advised the Tribunal the VA wished to visit Australia to see her daughter. As she missed her dearly and had not seen her for 10 years. The VA confirmed this was correct.

    ·The RA advised the Tribunal the VA had not left Lebanon except for one pilgrimage to Saudia Arabia. The VA confirmed this was correct.

13. In evidence to the Tribunal the witness advised as follows:

    ·The RA had not seen her father before he died and she wanted to see her aged mother and it was not practical for the RA to fly to Lebanon.

    ·The RA and the VA were cousins. They lived together in the same house.

    ·The RA and VA were shareholders, directors and employees of a company that provided services to disabled people and ran a respite centre and day program. The company was very profitable and was currently generating a profit of approximately $4,000 per week after all costs inclusive of outgoings for 13 staff. The company operated on a client referral basis and business was growing.

    ·The witness advised she believed the VA would return home due to family obligations to a daughter who resides in Lebanon with an ill husband.

14. The Tribunal has considered this evidence very carefully. The Tribunal has paid particular attention to the evidence of the VA that goes to GTE matters. The Tribunal notes the evidence of the RA and VA was largely similar and any slight differences were matters of emphasis only or caused by difficulties in translation due to phonetic pronunciations. The Tribunal does not make any adverse findings against the RA or the VA as to their evidence. On occasion the RA and witness took the opportunity to supplement or explain the evidence of the VA and the Tribunal was assisted by these interventions.

15. However, the Tribunal after careful consideration finds that this evidence going to GTE is not sufficient to  outweigh the other factors including the recent significant deterioration of the economic, social, and security situation in Lebanon noted in the evidence as summarised above. The Tribunal notes the VA’s current circumstances including the fact she is a member of Lebanese society that receives significant government assistance (apparently) not available to most other members of the community. The Tribunal notes the VA lives in her own home, receives significant assistance in terms of pension, practical assistance and help from her own family. This assistance is not insignificant, it could be characterised as an incentive to return to the home country and the Tribunal gives it some weight. It is also noted by the Tribunal that the VA has immediate family in Australia and this family appears to be successful and entrepreneurial in focus. The Tribunal is not persuaded these matters either individually or taken together are sufficient to confirm that the VA’s expressed intention to visit Australia temporarily is genuine.

16. As stated, the Tribunal has also considered the recent country information reports from the Department of Foreign Affairs and Trade, and notes that the security, political, and economic situation in Lebanon at the present time is particularly bad. The VA advised the Tribunal that these generally poor conditions had little immediate impact because  of the type of assistance she continues to receive. The Tribunal notes the recent humanitarian crisis and how it has evolved for the worse over the last few years. As noted above the RA and VA were aware of the suffering that was now occurring in the home country and were at pains to differentiate the lifestyle of the VA from that of the overwhelming proportion of the population in Lebanon. The Tribunal has considered this evidence and does not reject it outright. As stated above the Tribunal gives this particular evidence as to differentiated assistance provided to the VA in Lebanon some weight. The Tribunal has considered this matter very carefully and finds that the situation back in the VA’s home country is quite poor and that this does lend some weight to the contention that the VA does not genuinely intend to visit Australia temporarily for the purpose for which the visa is granted.

17. Having taken all these factors into consideration the Tribunal finds that should the VA now be successful in coming here as a visitor taking into account the changed circumstances in Lebanon (the ongoing breakdown and only gradual differentiated improvements in government, community, social and restricted services since the date of lodgement of the visa application in the home country as set out above) that the VA may seek to stay here in some form on a long-term basis and that he does not genuinely intend to stay in Australia temporarily.

18. On balance the Tribunal is inclined to the view there is a real risk the VA will seek to remain in Australia living with her daughter and family. Notwithstanding the existence of assets and income from state assistance the Tribunal is not satisfied that the VA would abide by the conditions subject to which a Sponsored Family Visitor Visa is granted or that the VA would depart Australia at the end of the requested period of stay.

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

20. For the above reasons the Tribunal is not satisfied that the VA 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

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

    Mark Bishop

    Member