Taleb (Migration)

[2024] AATA 292

Taleb (Migration) [2024] AATA 292 (9 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Ahmad Taleb

VISA APPLICANT:  Mr Youssef Talib

REPRESENTATIVE:  Ms Fatoum Souki (MARN: 1387022)

CASE NUMBER:  2217914

HOME AFFAIRS REFERENCE(S):          BCC2022/2682076

MEMBER:Rachel Da Costa

DATE:9 February 2024

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 09 February 2024 at 4:15pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting brother and sister and families – genuine temporary entrant and compliance with conditions – incentives to depart or remain – house, land, work and help to parents – limited effect of security and economic conditions in regional area – intention not to jeopardise future family visits – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, conditions 8101, 8201, 8503, 8531

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 13 October 2022 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, who is a 27-year-old man from Lebanon, applied for the visa on 14 July 2022. 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 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for a visit.  

5. The hearing was conducted by Microsoft Teams videoconference and telephone. The review applicant appeared before the Tribunal via video on 18 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence by phone from Youssef Talib, who is the visa applicant and the review applicant's brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Evidence before the Tribunal

8. The Tribunal has before it the following relevant documents from the Departmental and Tribunal files, as well as Departmental movement records for members of the visa applicant’s family which it discussed with the review applicant in the hearing. The Lebanese documents provided were accompanied by certified English translations.

   ·     Statutory Declaration of the review applicant, Mohamad Taleb, dated 13 July 2022 inviting his brother Youssef to visit him and his family in Australia, taking responsibility for the cost of the visit and Youssef’s compliance with the conditions of his visa;

   ·     Letter dated 24 October 2023 from the head of Aine El Zahab municipality confirming Youssef owns a house in the village and a piece of land which he is entitled to sell and mortgage;

   ·     Letter dated 24 October 2023 from the General Director of Arkan Engineering stating that Youssef has worked for the company for six years as a Builder (Carpentry & Blacksmith) and that he has been granted annual paid leave for two months at his request. Before 2020, he was paid an annual salary of $8400 and now he is paid an annual salary of $4800, and a similar letter dated 27 June 2022;

   ·     Bio-data page of Youssef’s Lebanese passport;

   ·     Document from the Mayor of Aine El Zahab confirming Youssef’s residence on the first floor of the property of his father in Aine El Zahab, Akkar, North Lebanon, and that he is single;

   ·     Certificate of clean criminal record issued by the General Department of Internal Security Forces, Lebanon in respect of Youssef dated 9 June 2022;

   ·     Commonwealth Bank statements from July 2023 to November 2023 of Mohamad showing closing balances of around $24,000 and $4,000;

   ·     Details of the registration of Mohamad’s bricklaying business in Australia.

   Family composition and migration history

9. Based on various documents before the Tribunal and evidence given by Mohamad in the hearing, Youssef’s family’s composition and migration history is that in Lebanon, he has his parents and 10 siblings. All are married apart from Youssef. Mohamad and his sister Rayane both live in Australia. Mohamad is an Australian citizen and Rayane is a permanent resident and they both gained their residence status through marriage. Their mother, Fatima, visited Australia in 2016 and departed prior to the expiry of her visa. Their brother Zaher visited in 2007 and did the same, as did an aunt.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

10. 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.

11. In the present case, Youssef 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: 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)). There is no evidence before the Tribunal to indicate that Youssef has ever been granted a visa for Australia and so there is no evidence of non-compliance.

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. In considering whether Youssef intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. In the Tribunal hearing, Mohamad gave evidence that he has his own bricklaying business which he started about 10 years ago. He has eight employees. His wife works for the business, doing the accounts and paperwork. Their annual household income before tax is around $190,000. He owns his own house and three cars. They have a mortgage on the house but no other debts, and they have around $55,000 in savings. Mohamad and his wife have three children and they all live together in their four-bedroom house.

15. Mohamad gave evidence that Youssef will stay with him because they have plenty of room in their house. He said Youssef will pay for his own airfares and Mohamad will meet his living expenses while he is in Australia. He said Youssef would bring around $10,000 with him as spending money. He said Youssef is only planning to come for a holiday and he will not work or do any study or training while he is in Australia. Youssef will just come for a visit and then Mohamad will send him home because he wants other family members like his mother to be able to come and visit and he doesn’t want to blacken his name as a sponsor.

16. Youssef gave evidence that he works as a formworker doing carpentry to support cement in the construction industry. He has been doing this work since he was 18. He built his house in his parents’ building himself and wants to develop the land he owns, perhaps with some shops and a garden on it. He does not have a mortgage as he paid for these properties with money he had saved from his work. He currently has around $20,000 in savings and wants to bring around $10,000 with him on the trip.  

17. In considering whether Youssef intends to comply with conditions 8503 and 8531, as well as other relevant matters (cl 600.211(c)), the Tribunal discussed the proposed length and purpose of his visit to Australia and his personal circumstances.

18. Mohamad gave evidence that Youssef wants to come to Australia to see him and his wife and children. Mohamad’s wife has never been to Lebanon and only Mohamad’s oldest child has visited there with Mohamad, so he is keen for his brother to meet them. Youssef also wants to see his sister and her family here who have never met him. Mohamad intends to take some time off work and make it a fun visit for Youssef and then Youssef will return to Lebanon. Youssef wants to stay for four or five weeks. Mohamad explained that he has not visited Lebanon since 2019 and he is so busy with work that it is hard to travel, so he would like his brother to be able to come and visit.

19. Mohamad gave evidence that Youssef lives in his own house which is the third level of his family’s home. His parents live on the first level, Mohamad owns the second level and Youssef lives on the third level by himself. Youssef owns some land in the same area and has no debts as far as Mohamad knows. Youssef does not have any financial dependants but as the son who lives in the same place as his parents, he helps them out and keeps an eye on them. Their father continues to work as a builder. Youssef works for a building and construction company and has been in the same job for about six years. Mohamad is not sure how much leave Youssef gets from his work but thinks Youssef told his boss he needs a couple of weeks holiday. Mohamad thinks Youssef has around $15,000 in savings.

20. Youssef gave evidence that he wants to come to Australia to visit his brother for about four or five weeks, spend some time with his relatives here and then return to Lebanon. He said his work will not allow him to stay longer. While in Australia, he will stay with Mohamad and do some sightseeing and then return to his job. He is not planning to work or study or do any training while he is in Australia. He will pay for his airfares and he will bring around $10,000 with him as spending money.

21. Mohamad gave evidence that Youssef does not have any medical problems and he has not suffered any harm or discrimination in Lebanon because of his religion, which is Islam, or any other reason. He said his brother has never had any problems and is friendly with everyone regardless of whether they are Christian or Muslim. The Tribunal asked Mohamad how the poor economic situation in Lebanon had affected Youssef and his family more generally. He said the situation in general is not good, but where they live in Akkar they are away from the worst of the problems and their life is normal. All his siblings are married apart from Youssef so his parents don’t have to look after them, and his father and Youssef work so they are fine and still have an income. Mohamad agreed that Youssef’s income had dropped, but said he was earning good money before and he has his properties and so he is fine. The Tribunal put to Mohamad that better economic prospects in Australia might be an incentive for Youssef to say. Mohamad said it is impossible for Youssef to stay and exceed his visa time and he would not let that happen. He wants his parents and other family members to be able to come and visit and see his family. He has been in Australia for 20 years and doesn’t want to ruin his record.

22. The Tribunal asked Mohamad about the impact of the uncertain security situation in Lebanon and whether that might be an incentive for Youssef to remain in Australia. Mohamad said that life in the Akkar area is normal and not the same as the situation in Beirut. He said Youssef is not having any problems in Lebanon.

23. Mohamad explained that Youssef has various incentives to return to Lebanon including his work, his house and his job. It would be very hard for him to start a new life in Australia because he has nothing here apart from Mohamad and his sister, and everything for Youssef is in Lebanon. Mohamad said he would not employ Youssef in his business because he has plenty of workers and Youssef does not know the job and in any event, he does not want a bad name or to ruin his record as a sponsor. Mohamad wants his parents to be able to come and visit and he will not let Youssef stay for longer than his visa permits.

24. Youssef gave evidence that he is in good health and has not suffered any harm or discrimination in Lebanon for any reason, including his religion. He said the economic situation had affected everyone but his family in Lebanon is ok because they have work and are comfortable. The security situation has not affected him in the north. He said his reasons for returning to Lebanon after his visit are that he has his job which he likes, and his land, and Lebanon is where his life is and he has interests in that country. He also explained that he is responsible for helping his parents and as the child who lives with them, he has that responsibility on behalf of his siblings. He confirmed that he understood what the broader consequences could be for his family members in terms of visiting Australia in the future if he did not comply with the conditions of his visa.

25. In the hearing, Mohamad indicated that he was prepared to lodge a security bond of $30,000 to support the visa application.

26. Having considered all the written and oral evidence, the Tribunal finds the evidence before it in support of the visa application and Youssef’s compliance with the visa conditions to be persuasive. The Tribunal finds that Youssef intends to comply with the conditions to which the Subclass 600 visa would be subject.

27. The Tribunal accepts that Youssef’s personal responsibilities towards his parents, his stable employment and income, his property ownership and ambitions and the fact that the majority of his immediate family live in Lebanon, all indicates that he is well-established there and has strong incentives to return at the end of his visit to Australia. He is also under family pressure and expectation to return to Lebanon and ensure that he does not jeopardise the opportunity for other family members, such as his parents, to be able to visit Australia in the future. The economic challenges and potentially uncertain security situation in Lebanon do not change the Tribunal’s assessment in this regard.

28. Based on the evidence before it, the Tribunal considers that Youssef has strong incentives to return to Lebanon at the end of his permitted stay and that he will not take steps while in Australia to attempt to remain on an ongoing or permanent basis, and that Mohamad and his other relatives would not support an attempt by him to do this.

29. The Tribunal is satisfied that it is Youssef’s intention to visit Mohamad and his other relatives in Australia and he will not remain in Australia after the end of his permitted stay. The Tribunal is satisfied that he will comply with his visa conditions.

    Conclusion

30. 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

31. 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.

    Rachel Da Costa
    Member