Saddick (Migration)

[2018] AATA 2491

Saddick (Migration) [2018] AATA 2491 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Omayma Saddick

VISA APPLICANT:  Mohamad El Oueik

CASE NUMBER:  1722742

DIBP REFERENCE(S):  BCC2017/2153977

MEMBER:Meena Sripathy

DATE:4 June 2018

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 04 June 2018 at 3:09pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream - Whether the visa applicant genuinely intends to stay in Australia temporarily – History of compliance with visa conditions – Strong incentives to return to home country – Volatile security situation in home country – Factors for grant of visa outweigh factors against – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.212, 600.232

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 19 July 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 19 June 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. Clause 600.232 also requires the applicant to be sponsored by a settled Australian citizen or Australian permanent resident who is a relative of the applicant.

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 on the evidence provided that the visa applicant’s intentions to only stay temporarily in Australia were genuine.   The delegate also found that insufficient evidence was provided to establish the relationship between the sponsor and the applicant and on that basis the sponsorship was not approved.

5. The review applicant appeared before the Tribunal on 24 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicants’ gave substantially consistent evidence and responded to the Tribunal’s questions in a frank and open manner, and the Tribunal found them to be credible and honest witnesses. The review applicant was represented in relation to the review by her registered migration agent.

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 31 year old single man from Minieh Lebanon. He indicates he has parents and a sister in Lebanon.  He seeks to visit his aunt in Australia.  He is employed as a salesman at Al Malika Supermarket since May 2014. The following documents were included with the application: a bank statement showing two recent deposits; a letter confirming the applicant’s employment at the El Malakeh Supermarket;  Family Entry Statements relating to the applicant and sponsor’s family; and pages form the applicant’s passport indicating past travel history. 

8. Before the Tribunal the review applicant provided a submission from her representative. The submission provided information that the visa applicant has had two previous compliant visits to Australia in 2005 and 2011, other family members have travelled to Australia and complied with visa conditions, and he has travelled to Egypt and Turkey and returned to Lebanon; his purpose to visit Australia is to spend time with his aunt and other family members; relevant country information is referred to indicating improvements in stability in Lebanon in recent years; and that the Tribunal is obliged to consider the individual circumstances and motives of the visa applicant and refrain from relying solely on broader and outdated geopolitical evidence of sectarian violence. The representative referred to the visa applicant’s stable employment and living arrangements, relatively high income, substantial savings and close family ties in Lebanon as strong factors to encourage him to return. Copies of the visa applicant ‘s employment letter and bank statement of the review applicant were attached in support, together with a Statutory Declaration from the review applicant confirming her support and providing details of other family members who have had compliant visits.

9. Before the Tribunal, the review applicant gave oral evidence about her background and circumstances, including her own migration history and that of other family members in Australia; her relationship to the visa applicant and the visa applicant’s circumstances in Lebanon.  She said the visa applicant the son of her sister, so he is her nephew. She handed to the Tribunal a copy of a Family Relationship Register which indicates this relationship. She explained that she brought him up after his father died when he was very young and for this reason they have a close relationship.   

10. The review applicant migrated to Australia herself over 20 years ago, sponsored by her husband with whom she still lives. They have no children of their own. She has two other siblings in Australia, both have been here for many decades. She provided details of two other nieces and nephews who have visited Australia in recent years and complied with their visa conditions, in addition to the visa applicant who travelled here twice before and complied.

11. She provided the following information about the visa applicant’s circumstances.  He has his mother and one sister in Lebanon.  His sister recently married and he lives now only with his mother.  His father passed away when the visa applicant was one year old and his mother remarried and has 4 children with her second husband. This relationship has long been on and off and currently it is off.  The 4 children are young, all at school age, and he lives with his mother and 4 step siblings in an apartment owned by his step father. The visa applicant supports his mother and siblings.  He is employed in a supermarket. He has travelled overseas to Malaysia, Turkey and Egypt in the past, for holidays. 

12. The review applicant herself has travelled to Lebanon twice in recent years, in 2015 and 2017.  The visa applicant was not there when she visited in 2015, and he was also away for most of the time when she went to 2017.

13. The Tribunal asked the review applicant about her knowledge of other applications the visa applicant has made to come to Australia.  She said he made an application in 2014, which is referred to in the delegate’s decision record, for a Prospective Marriage visa, but that relationship is now over. She explained that during this period, she has sponsored him for a Visitor visa but by that time he had met this woman.  The review applicant said the relationship has since ended and that visa application was withdrawn.

14. The Tribunal put to the review applicant that it has the decision of the Migration Review Tribunal (case reference 1408625) before it and discussed this with her.  She acknowledged that she came before the Tribunal (differently constituted) on that occasion and that the visa applicant’s partner at that time also appeared.  She said she did not know about this woman at the time that visitor visa application was made.  She understood that the woman went to Lebanon and met the visa applicant and they fell in love. She made a promise to marry him, but they weren’t in fact married. After she returned to Australia she fell in love with someone else and withdrew her sponsorship of the Prospective Marriage application. She is now married to someone else and as far as the review applicant knows the visa applicant and this woman no longer speak to one another. The review applicant said the relationship is definitely over and he has no incentive to stay her on that basis.   The Tribunal noted her evidence in the previous review that the visa applicant would probably stay given he was in a relationship at that time. She acknowledged that she said this because she was being honest then, and she is honest now.  He will not stay this time because he is not in a relationship. She reiterated that she just wants him to visit because she misses him and he is like a son to her. She wants him to come often in the future so he will not jeopardise his chances of returning again. He has his work, his mother, his family and friends there. He has responsibilities and obligations to his mother and siblings in Lebanon and he will not abandon them.

15. The Tribunal spoke with the visa applicant by telephone.  He confirmed that he lives in Tripoli, Lebanon with his mother and step siblings. He stated that his mother and step father’s relationship is on and off and the children of that relationship live between the two of them when they are separated. They live in a property owned by his step father. The visa applicant stated that he does not own any property himself. He has a job, and saves money and travels somewhere every year. He has been to Turkey many times, and to Egypt, Malaysia and to Australia twice.  He has a good life in Lebanon. Regarding his current job, he states he has been here for the past 3 years. He is trained and qualified as a chef.

16. The Tribunal asked his about his relationship status.  He said he is presently single. He was engaged in the past, to an Australian citizen but this relationship ended. He applied for a Prospective marriage visa and they were in contact with each other but then it didn’t work out in the end.  He has seen in Facebook that she is married to someone else and had a baby. They are no longer in contact with each other. The Tribunal put to him that when he was in this relationship he appeared to have an intention of residing in Australia, as indicated by making a visa application.  He said he initially asked her to live with him there but she could not because she had an ex husband and children in Australia.

17. The visa applicant stated that his relationship with this woman is finished, she is remarried and it is definitely over. He stated that they met in strange circumstances. At that time he already had an application for a visitor visa pending and she suggested if he came here he could meet her family and they would decide whether to continue the relationship.  After his visitor visa application was refused they lodged the Prospective Marriage visa but then the relationship ended. The visa applicant said he understands the law in Australia and he would not do anything to cause problems for his aunty there.  He has a good life in Lebanon and he cannot leave his mother.  Though he is very close to his aunty, he is also close to his mother and would not abandon her. He also has a social life in Lebanon including friends.  He has visited Australia twice before when he was younger. If he intended to stay he would have done so on those occasions but he did not. He has no desire to come to Australia to meets someone to marry.  At this point the visa applicant mentioned that he has a girlfriend in Lebanon who he intends to marry in future. He said she is his neighbour and she is still studying. They have plans to marry in future and this is another reason why he would return.

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 aunty and other family members. 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)). Evidence is before the Tribunal of two previous visits by the visa applicant to Australia in 2006 and 2010. The Tribunal is satisfied, on the evidence before it that the visa applicant complied substantially with the conditions on his last substantive visa.  

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.

22. The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the basis of the Tribunal’s favourable credibility assessment of the applicants’, their oral evidence and documents provided, it makes the following findings.  It accepts that the visa applicant is a 31 year old single man who lives with his mother and step siblings in Tripoli, Lebanon.  It accepts he is employed, and has been in his current job for the past 3 years. It accepts that  he has accumulated savings in the bank and a travel history that is consistent with his claimed comfortable financial circumstances. On the basis of these findings, it is satisfied that the visa applicant has close family ties, employment to return to, and a stable and comfortable financial position in Lebanon and that these are all strong factors which would encourage his return at the end of a visit. 

23. The Tribunal has considered, and discussed at some length with the review applicant and visa applicant, his previous visitor visa application and review and subsequent Prospective Marriage visa application history to the extent that it may be relevant to his intentions regarding this application.  It accepts that he was in a relationship with an Australian woman at the time of the review of his last visitor visa application and she subsequently sponsored him for a Prospective Marriage visa.  The review applicant was candid before the previous Tribunal, in stating that given the relationship between the visa applicant and this woman at that time, he may not return to Lebanon if granted a visitor visa then, and in light of that evidence the decision to refuse the visa was affirmed at that time. 

24. The Tribunal accepts, on the consistent evidence of the applicants and the outcome of the Prospective Marriage application, that the visa applicant’s relationship with that woman has ended.  The visa applicant said he has no further contact with her and as far as he is aware she has married and has a new child.  There is no other information or evidence before the Tribunal to suggest the visa applicant has a reason or incentive to remain in Australia for reasons relating to this or any other relationship in Australia. The Tribunal gives credit and places weight on the candour of the review applicant at the previous hearing regarding this matter and on this basis it places weight on her assurance this time that the visa applicant is genuine in his intentions to only visit and will comply with conditions and depart within the period. 

25. The Tribunal has also considered general country conditions in Lebanon and North Lebanon in particular and in particular information which indicates the political and security situation has been and remains volatile and unpredictable and refers to high levels of poverty in Tripoli,[1] to the extent that these may be factors which discourage the visa applicant from returning. Against this, the Tribunal accepts that the visa applicant’s particular circumstances indicate he has ongoing and stable employment, is personally in a comfortable financial position, has made numerous trips outside Lebanon in recent years and returned (including to Australia in 2010/11 when the security situation was even more volatile) and the review applicant herself has returned to Lebanon twice in recent years. In these circumstances the Tribunal accepts that the general country conditions are not likely to discourage the applicant from returning.

    [1] DFAT Country Information Report on Lebanon, 23 October 2017, pp7, 9; OCHA , Lebanon: North and Akkar Governorates Profile (August 2016): >

    Finally, the review applicant is prepared to provide a financial security should it be requested, and has provided evidence to indicate her capacity to do so.  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 for the visa applicant to be able to return in future, and in this context the Tribunal considers the consequences of non compliance with visa conditions for the sponsor are additional inducements for compliance with visa conditions. 

26. 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 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).

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