Saoud (Migration)

[2017] AATA 2304

Saoud (Migration) [2017] AATA 2304 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Aymat Saoud

VISA APPLICANT:  Mr Rakan Saoud

CASE NUMBER:  1701910

DIBP REFERENCE(S):  BCC2016/4055904

MEMBER:John Billings

DATE:13 November 2017

PLACE OF DECISION:  Melbourne

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 13 November 2017 at 4:55pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine Temporary Entrant – Purpose to visit family – No intention to work or study in Australia – Credible witness

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cl 600.211, cl 600.231, cl 600.6125

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 6 January 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, Mr Saoud, applied for the visa on 25 November 2016. 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 he or she 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 Mr Saoud did not meet cl.600.211. The delegate had regard in particular to Mr Saoud’s family composition, a lack of detail in information about his employment, his lack of previous travel outside Lebanon, the nature and duration of his intended travel, and information about “ongoing political and sectarian tensions [in North Lebanon] including lawlessness, political upheaval and ongoing violence due to the ongoing civil war in Syria”. The delegate was not satisfied that Mr Saoud had sufficient incentive to return to Lebanon within the time for which a visa would be granted. The review applicant, Ms Saoud, Mr Saoud’s sister, applied for review on 3 February 2017.

5. Mr Saoud is a 29 year old national of Lebanon.  He is unmarried.  Mr Saoud lives in a village north east of Tripoli, in Akkar.  His father and four of his six siblings aged from 22-35 years also live there.  His mother died in April 2016.  Mr Saoud has two married siblings and other relatives in Australia.  Ms Saoud, who is aged 33 years, first arrived in Australia in 2002 holding a Class UF Subclass 309 Partner visa.  She was subsequently granted a permanent Partner visa.  She is now an Australian citizen.  Mr Saoud’s 25 year-old brother, Mohamad, is an Australian permanent resident.  He first arrived in Australia on 4 May 2004 holding a Class UL Subclass 679 Sponsored Family Visitor visa valid until 4 August 2004.  He departed on 27 July 2004.  Mohamad next entered Australia on 20 March 2005 holding a Class TO Subclass 300 Prospective Spouse visa.  He now holds a Class BB Subclass 155 Resident Return visa. 

6. In 2013 Mr Saoud obtained qualifications in “management and organisation”.  Since September 2014, he has worked in an administrative capacity for a private school in his village. 

7. The Department’s file includes a copy of Mr Saoud’s Lebanese passport, an extract from the family register, Mr Saoud’s mother’s death certificate, a letter on behalf of Mr Saoud’s employer, an academic transcript, and a statutory declaration by Ms Saoud dated 10 November 2016.  Further material was submitted to the Tribunal.  That includes a certificate issued by Mr Saoud’s employer, and a letter by the president of Mr Saoud’s municipality regarding property owned and occupied by Mr Saoud. 

8. Ms Saoud appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Mr Saoud.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether cl.600.211 is met. This 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 he or she 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.

11. In the present case, Mr Saoud seeks the visa for the purposes of visiting Ms Saoud and other relatives in Australia. He wants to see his late mother’s brother and sister who are in Australia and draw comfort from them following his mother’s death. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. 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)).

13. 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.

14. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

15. The Tribunal now considers these matters.  The Tribunal first makes some observations about the credibility of the evidence.  Information in the visa application concerning the composition and whereabouts of family members was in conflict with the oral evidence insofar as the visa application indicated that Mohamad was in Lebanon whereas the oral evidence was that he has been in Australia for a number of years and is a permanent resident.  The Tribunal notes that in the family register, dated 2016, a line has been ruled through the entry for Mr Saoud’s mother, on the basis that she is deceased, and for Ms Saoud, on the basis that she is married.  On the other hand, no line has been drawn through Mohamad’s name.  Ms Saoud said that she thought this was because Mohamad married in Australia and did not notify the authorities in Lebanon about that, but also because he is male.  The Tribunal heard that Mr Saoud has virtually no English.  It appears that the visa application, completed in English, was completed with the assistance of a travel agent in Akkar.  It may be that information in the visa application about the family was transcribed with reference to the family register without properly being checked.  Whatever the precise explanation, the Tribunal accepts that it was an error, as Ms Saoud believes it to be.  The Tribunal does not consider there to be anything untoward about that. 

16. More generally, the Tribunal considers that Ms Saoud and Mr Saoud were credible witnesses.  Although Ms Saoud was somewhat vague and hesitant when questioned about Mohamad’s visa status, and ultimately said that she did not know what kind of visa he had, she and Mr Saoud generally gave their evidence in a straightforward manner and there was very substantial consistency in their evidence.   

17. Mr Saoud has not previously held an Australian visa, so the criterion in cl.600.211(a) is not relevant in the present case.

18. Mr Saoud has not travelled outside Lebanon before.  In the visa application it is stated that Mr Saoud was refused a Visitor visa for Australia in 2013.  He said he was told that the reason was the “then unstable security situation” in Lebanon.  Ms Saoud volunteered that another brother, Jamil, was refused a visa in 2010.  On the other hand, Mohamad was granted a Visitor visa in 2004 and departed Australia before the visa expired. 

19. Mr Saoud has substantial personal ties to Australia, being his sister, Ms Saoud, and his brother, Mohamad, and their families and other relatives.  Mr Saoud also has substantial personal ties to Lebanon.  Before the hearing Ms Saoud wrote to the Tribunal and, among other things, said that Mr Saoud has been “communicating with a young girl”.  She and Mr Saoud gave consistent evidence on the subject, saying that the young woman is from Mr Saoud’s village and that she is studying an education course at university in Tripoli.  Mr Saoud hopes that they will have a future together after she qualifies.  Although Mr Saoud said that the relationship, however best it be described, has been in existence for a couple of years, no mention was made of that to the Department.  The Tribunal does not consider that the relationship, at least at this stage, is evidence of strong incentive on Mr Saoud’s part to return to Lebanon.  Otherwise, Mr Saoud has his father and siblings in Lebanon.  The youngest brother is studying.  The other brothers work in trades as does his father.  The Tribunal was told that Mr Saoud’s property is the second floor of the family home that was constructed for his use.  His brothers live separately.  His sisters live with his father. 

20. Of some concern is that Mr Saoud does not have a bank account, meaning that there is no documentary evidence concerning his financial situation.  The Tribunal however heard consistent evidence that he is paid $US1,000 (or its equivalent in Lebanese pounds) cash per month and that he has saved $US7,000 which he would use to support a visit to Australia. 

21. Concerning Mr Saoud’s employment, the delegate remarked that the employer’s letter submitted to the Department did not mention specific details about leave of absence - that is the length of absence and whether it would be paid.  (The letter contained only a general statement about the entitlement to “vacations as stated in the contract”).  The delegate therefore expressed concerns that Mr Saoud’s employment would not provide sufficient incentive for him to return to Lebanon.  The Tribunal now has before it a further letter by the employer.  That letter, dated 24 October 2017, indicates that Mr Saoud is still employed and that he has the right to three months’ leave, half of which would be paid leave and half of which would be unpaid leave.  Asked about how the employer would deal with his absence, Mr Saoud told the Tribunal in effect that his role was such that other employees would be able to cover for him. 

22. The Tribunal discussed relevant visa conditions with Mr Saoud and is satisfied from his response, in particular, that he has no intention to work or study in Australia. 

23. The delegate expressed the view that the proposed length of travel – for up to three months - was not consistent with the stated purpose of travel.  It is not clear to the Tribunal what the basis for that view was, given that Mr Saoud wants to spend time with his late mother’s close relations, that he has a number of relatives in Australia, including their children whom he wants to meet, and that he also wants to visit “tourist attractions” in Victoria.  The Tribunal considers that the proposed length of travel is consistent with the stated purpose. 

24. At the hearing the Tribunal discussed both with Ms Saoud and with Mr Saoud general information about the security situation in Lebanon[1] – especially in the north of the country - and the Department’s statistics regarding the rate of non-return on the part of Lebanese citizens granted Visitor visas[2].  The Tribunal must of course consider the individual circumstances of the case.  The response by Ms Saoud in essence was that the information did not apply to Mr Saoud and that security in Lebanon is actually better than in other countries in the region.  The response by Mr Saoud in essence was that the impact of the conflict in Lebanon and neighbouring Syria on Mr Saoud and his family is not significant and that he would not do anything to jeopardise any future visa application by siblings in Lebanon by failing to comply with conditions of a visa granted to him. 

    [1] See, for instance, DFAT Country information report Lebanon dated 23 October 2017

    [2]

25. Noting again its assessment regarding credibility, the Tribunal is satisfied that Mr Saoud genuinely intends to stay temporarily in Australia for the purpose for which the visa would granted - to visit his family - and that he would comply with the conditions not to work here, not to study or train for more than three months here, and not to remain beyond the visa period. 

26. For the above reasons the Tribunal is satisfied that Mr Saoud genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and so finds that the requirements of cl.600.211 are met.

    DECISION

27. 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.

    John Billings
    Senior Member