Sayf (Migration)

[2024] AATA 2204

Sayf (Migration) [2024] AATA 2204 (18 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sahar Sayf

VISA APPLICANT:  Mr Adham Zreika

CASE NUMBER:  2305931

HOME AFFAIRS REFERENCE:               BCC2023/424793

MEMBER:L Symons

DATE:18 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 18 June 2024 at 12:07pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – incentives to remain or depart – most family members in Australia – employment and mother and girlfriend in home country, with plans to marry – no evidence from applicant at hearing and sponsor’s limited knowledge of circumstances – country information – relatively secure conditions in home area – previous sponsorships and bond lodged for mother’s visit – brother’s long-term stay after arriving on temporary visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 1 March 2023 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 to the Department of Home Affairs (the Department) for the visa on 25 January 2023. 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 visa 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. The delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 28 April 2023, the review applicant, who is the visa applicant’s aunt. applied to the Tribunal for a review of that decision.

5. The review applicant appeared before the Tribunal, via video, on 7 May 2024 to give evidence and present arguments. 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 AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted.

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.

10. The visa applicant has not previously held a substantive visa in Australia.

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

12. In considering whether the applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that she is married and has five children aged 28, 18, 17, 14 and 11 years. She is a hairdresser by occupation but is not in paid employment as she cares for her children. She is in receipt of a Centrelink benefit and does some work “here and there”. When asked how much she receives from Centrelink, she responded that she sometimes receives $2,000.00 and sometimes receives $200.00. Her husband is not employed. Her eldest daughter assists her financially. She has savings of approximately $25,000.00 and no other assets. She has no debts. She lives in rental accommodation.  

13. The review applicant stated that the visa applicant is single and lives with his mother in a house that was owned by his father. His father has passed away. He expects to inherit this house in the future. He is employed as a Sales Manager and has done that job for 8 or 9 years. She did not know where he worked. He has savings of between $15,000.00 and $20,000.00. He has no debts. He will pay for his airfare and living expenses in Australia. He will live with her for most of the time he is here. He has no plans to work, study or undertake any training in Australia.

14. The review applicant provided the Tribunal with a Statutory Declaration dated 12 January 2023 in which she stated that she has the financial means and will provide any necessary assistance to ensure that the visa applicant has adequate funds for personal support during his intended stay in Australia. She provided the Department with a St George bank statement dated 11 January 2023 for an account in her name showing a balance of $6,003.61.  

15. The visa applicant did not give evidence at the hearing and the Tribunal was therefore unable to discuss with him the proposed financial arrangements for his visit to Australia. The Tribunal was provided with a number of supporting documents including a letter dated 5 December 2022 from Alamco for Industry and Trade which indicated that the visa applicant had been employed there as a Sales Manager since 8 October 2008 and was paid a monthly salary of US$800.00. A second letter from Alamco for Industry and Trade dated 18 April 2024 confirmed the above and stated that his monthly salary is now US$850.00. An undated Statement of Disbursement of Salaries 2023-24 for the visa applicant from Alamco for Industry and Trade was also provided.

16. The Tribunal was provided with a notarised Declaration from the visa applicant dated 9 January 2023 in which he stated that he intends to travel to Australia and has cash in the sum of US$10,000.00. A second notarised statement from the visa applicant dated 15 April 2024 indicated that he intends bringing US$14,650.00 in cash with him to Australia. The Tribunal has not received any independent verification that he in fact has these savings in cash. The Tribunal has also not received any current independent evidence that the review applicant has savings of approximately $25,000.00. The St George bank statement dated 11 January 2023 she provided the Department indicates that she has savings of $6,003.61 in her bank account. 

17. The Tribunal raised as an issue with the applicant the fact that she has sponsored the visa applicant, has certain responsibilities as his sponsor and did not appear to know much about his financial circumstances. The Tribunal noted that her husband was not working and she did limited paid work. The Tribunal raised concerns that the visa applicant may not comply with the visa condition in relation to not working. She responded that he could eat whatever meals she prepares for her family. Other family members will help with outings. He has enough money. If he needs more, family members will help. She cannot travel to Lebanon now.

18. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the proposed length and purpose of his visit to Australia. The review applicant gave evidence that the visa applicant wants to visit Australia for three months. He is not allowed to stay for longer. When asked how much annual leave he gets from his job, she responded that she did not know. She did not like to ask him a question like that. He has been working for a long time and has collected his leave.

19. The Tribunal asked the review applicant why the visa applicant wants to come to Australia. She responded that she misses him and will not be able to visit him in Lebanon as her son has started university and her daughter is working. It is easier if he comes to Australia. When asked what he is planning to do during his visit, she responded just see the whole family and have fun. They want to take him out and show him Australia. Her mother and brother are visiting Australia now. Every now and then a family member brings her mother to Australia. Most of her family members are in Australia and it is easier for her to come here. She has a visa for twelve months and has been in Australia for nearly eight months. She has another sister from Lebanon visiting now with her children.

20. The review applicant stated that she has two sisters, one brother, two aunts, three cousins and nephews and nieces who live in Australia. She has her mother, two sisters, four brothers, two aunts and an uncle who live in Lebanon. The visa applicant is her nephew. His only brother lives in Australia with his wife. He came here more than fourteen years ago on a Student visa. He does not have a permanent visa. He has applied for a Carer visa to care for his wife’s aunt and is on a Bridging visa.

21. The Tribunal asked the review applicant how the security situation in Lebanon has affected the visa applicant. She responded that he is in the north of Lebanon, there is no conflict there and nothing has happened. When asked how the political situation in Lebanon has affected the visa applicant, she responded that he is not impacted by the political situation in Lebanon. He is working and he is fine. When asked how the economic situation in Lebanon has affected the visa applicant, she responded that he has not been impacted by the economic situation and everything is good.

22. The Tribunal asked the review applicant what incentives the visa applicant has to return to Lebanon at the end of the holiday. She responded that he cannot stay here. All his siblings are married. He has a girlfriend he is planning to marry at the end of the year all going well. When asked what would happen if he came here, then changed his mind and decided not to go back to Lebanon, she responded that she would not agree with him. Secondly, his mother cannot be left alone. He has things to do in Lebanon.

23. The Tribunal asked the review applicant if she is prepared to lodge a security bond if one is required by the Department. She responded yes, she can lodge as much as the Department requires. She has family members in Australia. They have all saved money and will put it together. When the visa applicant leaves they will get their money back. When asked how much she in particular is willing to lodge, she responded $25,000.00 to $30,000.00. Her daughter will help as well. If the Department asks for more than that, her brothers and sisters will help her. She has previously lodged a bond for her mother.  

24. The Tribunal was provided with two letters from Alamco for Industry and Trade (see paragraph 15 above) which indicate that the visa applicant is entitled to three months leave being one month at his employer’s expense and two months at his expense. They also indicate that he can resume his work on his return to Lebanon.

25. The Tribunal raised a number of issues with the review applicant. The Tribunal noted that in his application for a Visitor visa the visa applicant stated that he would like to visit Australia for five weeks which is inconsistent with her evidence that he now wants to visit Australia for three months. The Tribunal noted that this raises concerns about his intentions and whether he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. She responded that she gave an approximate time frame. It is up to the Department how many weeks he is given and it is up to him how long he wants to stay. It will depend on how much fun he has here and whether he is required to return to Lebanon. It will take two months if he spends a week with each family member here.   

26. The Tribunal raised as an issue with the review applicant the fact that the visa applicant’s only brother came to Australia on a temporary visa 14 years ago and he is still here. The Tribunal raised its concerns that the visa applicant may do the same thing. She responded that his brother has been going to Lebanon and returning “all the time”. This response does not address the issue raised with her.

27. The Tribunal raised as issues with the review applicant the current economic, political and security situations in Lebanon including the impact of the war in Gaza on Lebanon and potentially on the visa applicant.[1] [2] [3] The Tribunal noted that these are strong incentives for the visa applicant not to return to Lebanon after the end of his permitted stay in Australia. She responded that he will be her responsibility. As a sponsor she cannot let him do that. It will affect her reputation. She has nothing to do with his brother. When they were young they were raised together. She misses him and wants to see him.

    [1] DFAT Country Information Report on Lebanon 26 June 2023.

    [2] The War in Gaza risks pulling in Hezbollah and Lebanon, The Conversation, 11 April 2024. (The war in Gaza risks pulling in Hezbollah and Lebanon (theconversation.com))

    [3] As Hezbollah-Israel Tensions Simmer, Lebanon’s Domestic Crises Drag On – Ongoing Hostilities in Lebanon and Syria Could Spark a Full Blown War That Would Be Catastrophic For Lebanon, United States Institute for Peace, 1 April 2024. (As Hezbollah-Israel Tensions Simmer, Lebanon’s Domestic Crises Drag On | United States Institute of Peace (usip.org))

28. The Tribunal raised as an issue with the review applicant the current travel advice (do not travel) from the Department of Foreign Affairs and Trade against travel to Lebanon because of the volatile security situation there.[4] The Tribunal noted that this is an incentive for the visa applicant not to return to Lebanon after the end of his permitted stay in Australia. She responded that before she was born she heard this about Lebanon. For fifty four years she has heard that there is going to be a war (in Lebanon). People visit Lebanon and return to Australia.

    [4] Smartraveller – Lebanon, DFAT, 7 June 2024. (Lebanon Travel Advice & Safety | Smartraveller)

29. The Tribunal noted that there is a difference between visiting a country and returning home as opposed to living in and experiencing events in a country. The review applicant responded that she has been sponsoring family members. Her mother and siblings have come to Australia and left on time. Her brother has been here for 3 months and he will leave in 5 days. Even if he wants to stay longer she will not let him do that.  

30. The Tribunal raised as an issue with the review applicant the incentives for the visa applicant to remain in Australia after the end of his permitted stay. The Tribunal noted that he has a large number of family members living in Australia including his only brother and he will have free accommodation in Australia. She responded that she promises that he will not overstay. She is his sponsor and he will be staying in her house. She will support him. If he needs help, she will ask for help from her two sisters. She has nothing to do with his brother. He has his mother in Lebanon and cannot leave her.

31. Having considered all the evidence, the Tribunal accepts that the visa applicant will pay for his airfare to Australia and that the review applicant and various family members in Australia will provide him with accommodation. The Tribunal is concerned about the inconsistencies in the evidence in relation to the length of his proposed stay in Australia and how this impacts on the visa applicant’s intentions. As he did not give evidence at the hearing, the Tribunal was not able to clarify this issue with him.

32. Whilst the Tribunal accepts that the presence of the visa applicant’s mother and girlfriend and his employment in Lebanon are incentives for him to return to Lebanon at the end of his permitted stay in Australia, the Tribunal is of the view that the volatility of the current economic, political and security situations in Lebanon are strong incentives not to return to Lebanon. Further, the presence of a large number of family members in Australia (including his only brother) and the support they can offer him here are strong incentives to remain in Australia at the end of his holiday.    

33. The visa applicant’s brother’s immigration history in Australia also raises concerns that he may influence the visa applicant to follow his lead. The Tribunal is not satisfied that the payment of a security bond would overcome these factors. The Tribunal concludes that the incentives for the visa applicant to remain in Australia after the end of his permitted stay outweigh the incentives for him to return to Lebanon.

34. 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

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

    L Symons
    Member

    
    

    ATTACHMENT
    600.211

    The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to: 

    a)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; and

    b)whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

    c)any other relevant matter.

    600.231

    The applicant intends to visit Australia:

    a)to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or

    b)for any other purpose that is not related to business or medical treatment.