Sheshem (Migration)

[2024] AATA 3862

Sheshem (Migration) [2024] AATA 3862 (20 May 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Antwanette Sheshem

VISA APPLICANTS:  Mr Sleiman Hourani
Master Kevin Hourani
Mrs Sara Diwaneh

REPRESENTATIVE:  Mr Robert Peter McMahon (MARN: 1807830)

CASE NUMBER:  2306561

HOME AFFAIRS REFERENCE(S):          BCC2023/1672595

MEMBER:David Crawshay

DATE OF DECISION:  20 May 2024

DATE CORRIGENDUM

SIGNED:22 May 2024

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following correction is made to the decision:

Paragraph 6 of the decision record states “For the following reasons, the Tribunal has concluded that the decision under review should be affirmed”. This is to be replaced with “For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration”.

David Crawshay
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Antwanette Sheshem

VISA APPLICANTS:  Mr Sleiman Hourani
Master Kevin Hourani
Mrs Sara Diwaneh

REPRESENTATIVE:  Mr Robert Peter McMahon (MARN: 1807830)

CASE NUMBER:  2306561

HOME AFFAIRS REFERENCE(S):          BCC2023/1672595

MEMBER:David Crawshay

DATE:20 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criterion for Subclass 600 (Visitor) (Class FA) visas:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 20 May 2024 at 4:09pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream –genuine temporary entrant and compliance with conditions – husband’s long-term employment, substantial savings and accommodation provided by sponsor – wife has all family members in Australia, husband has all in home country – wife’s family members’ migration history distinguishable from wife’s – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, 600.231

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 30 March 2023 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 12 March 2023. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the visa applicants applied for the visas 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 a visa applicant to satisfy the Minister that that 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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the visa applicants genuinely intended to stay temporarily for the purpose for which the visas would be granted. The Tribunal will refer to the individual visa applicants by their first names unless otherwise indicated.

5. The review applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the first- and third-named visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard), Arabic and English languages. The review applicant was represented in relation to the review.

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 applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted, having regard to whether they have complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by them was subject; whether they intend to comply with the conditions to which the Subclass 600 visas would be subject; and any other relevant matter.

8. In the present case, the visa applicants seek the visas for the purposes of visiting family; namely, the mother of the first-named visa applicant. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231. However, while the Tribunal accepts that the visa applicants may have a desire to travel to Australia for these purposes which are on their face genuine, it must also be satisfied that they genuinely intend to stay temporarily here for these purposes and not for purposes that would entail them remaining in Australia after the cessation of any visitor visa granted to them or that would result in them not complying with conditions of their visas.

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)). The visa applicants have not held visas to come to Australia, and this aspect is given no weight either way.

10. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas would be subject (cl.600.211(b)). The conditions to which visas 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 three 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 Tribunal has considered the contents of Sleiman and Sara’s visa application forms, in which both state that their trip will be self-funded by Sleiman. It has seen a copy of a bank statement showing a substantial sum of money (in US dollars). It has also seen a copy of a letter from his purported employer which stated that he earns USD691-per-month on top of a salary of around 18 million LBP-per-month (equivalent to $290).[1] It accepts that the visa applicants will be accommodated by the review applicant during most of their stay in Australia and will therefore not be required to expend large amounts of money for accommodation costs while here.

    [1] >

    Based on the above information and findings, the Tribunal accepts that the visa applicants intend to comply with condition 8101 relating to no work. Moreover, there is no information to show that the visa applicants intend to engage in study or training in Australia for more than three months. It accepts that they intend to comply with condition 8201.

12. Condition 8503 is an entitlement and is not able to be complied with.

13. Condition 8531 is considered in more detail below.

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has considered the visa applicants’ financial and employment circumstances. In relation to the former, it accepts based on a bank statement that Sleiman has a substantial sum of money in US dollars in the bank. In relation to the latter, it accepts based on documents presented including a letter from Sleiman’s employer dated and a payslip for the most recent pay period that he has been working as a technician at the Central Sterile Supply Department at the Lebanese American University Medical Center since 2002, where he earns USD691-per-month as well as around 18 million LBP-per-month (equivalent to $290).[2] The Tribunal has considered a letter dated 14 May 2024 showing the Sara has begun undertaking work for the National Evangelical Christian Alliance Church in Haret El Ballaneh for which she was receiving $130 “for her help”. Although the Tribunal accepts the contents of the letter and accepts that the sum of money is likely to be in US dollars, the pay period has not been given.

    [2] Ibid

15. The Tribunal has considered information about the visa applicants’ family circumstances. It accepts based on Sara’s visa application form that her parents, brother and sister live in Australia. It accepts that her husband and son live in Lebanon but notes that they are listed to travel with her to Australia. As a result, it finds that if all visa applicants were granted visas to visit, Sara would have no members of her immediate family in Lebanon at the time when she is in Australia. The Tribunal has considered that, in contrast, all members of Sleiman’s family live in Lebanon – comprising his parents, four brothers and one sister.

16. The Tribunal has considered the migration history of Sara’s family members who are living in Australia. It finds based on testimony at hearing that the review applicant came to Australia on a [visa 1] based on her living in Syria during the war there. It finds based on testimony from the review applicant’s daughter, Aline, that she was granted permanent residency based on a [visa 2]. It finds that the review applicant’s son, Assaad, was granted a partner visa.

17. The Tribunal has considered the information in front of it and the findings made above. While it finds that two of Sara’s family members were granted visas on [specified] grounds, with the other family member being granted a partner visa, it accepts that these visas were granted either as a result of the family member living in Syria or on the basis of a relationship with another person. It notes that Sara lives in Lebanon and not Syria and that she is married. It accepts that her circumstances are apt to be distinguished from the circumstances of her family members.

18. The Tribunal has considered that the visa applicants have applied to come to Australia on visitor visas in the Sponsored Family stream, which imposes two additional mandatory conditions – being the “no further stay” condition 8503, and condition 8531 which states that a visa applicant must not remain in Australia after the end of the period of stay permitted by the visa. It has considered that the visa applicants would be unable to apply for any further visas (save for a protection visa, which is carved out in condition 8503) unless they were able to have condition 8503 waived.

19. The Tribunal has therefore considered country information about Lebanon. It accepts that the visa applicants are claimed to be followers of the Anglican faith in Lebanon. It accepts that the visa applicants, as Anglicans, or Protestants more broadly, would not experience discrimination as residents of the Matn District within the Mount Lebanon Governate in which Christians are concentrated.[3]

    [3] Department of Foreign Affairs and Trade, DFAT Country Report: Lebanon (26 June 2023), [3.19], >

    The Tribunal has also considered country information pertaining to the current economic situation in Lebanon. It accepts that the country is experiencing severe economic depression, with GDP slumping by over half in the space of two years from 2019 to 2021.[4] However, it finds that the visa applicants are somewhat inoculated from the effect of this economic situation because Sleiman and Sara are paid in US dollars and, as far as Sleiman is concerned, he is in long-term employment.

    [4] Ibid [2.7]

    CONCLUSION

20. The Tribunal has considered the information in front of it when assessing whether the visa applicants genuinely intend to stay temporarily for the purpose for which the visas are granted. It accords some weight to the fact that Sleiman has family living in Lebanon – namely, his parents, four brothers and a sister – and accepts that these family members would provide a large incentive for him to return before the expiry of any visitor visa period. It finds that this would, in turn, provide some incentive for Sara to return as well, although it notes that the incentive is diminished for her because all of her family members would be in Australia at the time of travel – either as residents in the case of her parents, brother and sister, or as visitors in the case of Sleiman and Kevin. It gives substantial weight to information showing that Sleiman has long-term employment in Lebanon for which he is paid in US dollars. It gives some weight to information showing that Sara is also employed and paid in US dollars.

21. The Tribunal has balanced the weight given to these aspects against the overall risk that the visa applicants will remain in Australia after the visa ceases. For Sara, the risk is that she will be facilitating a family reunion given that her parents, brother and sister are here. However, given that the visa applicants are applying for a visitor visa in the Sponsored Family stream, which precludes a visa applicant applying for further visas while onshore, it finds that they would need to apply for protection visas unless they were able to have condition 8503 waived. Based on its findings above, the Tribunal finds that the visa applicants are extremely unlikely to be granted visas based on their circumstances.

22. After having balanced the information against itself, the Tribunal is satisfied that that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which their visas are granted. It finds that the requirements of cl.600.211 are met in respect of each of them.

    DECISION

23. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criterion for Subclass 600 (Visitor) (Class FA) visas:

    ·cl.600.211 of Schedule 2 to the Regulations.

    David Crawshay
    Member