Youssef (Migration)

[2018] AATA 2130

Youssef (Migration) [2018] AATA 2130 (12 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tarek Youssef

VISA APPLICANT:  Mr Ahmad Youssef

CASE NUMBER:  1724268

DIBP REFERENCE(S):  BCC2017/3097638

MEMBER:Meena Sripathy

DATE:12 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 12 June 2018 at 12:03pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) visa – Genuine temporary entrant – Significant incentive to return – Visit brother – Close relationship Applicant in a stable economic position – Secure employment – Cares for parents – Other family members complied with visa conditions –  Credible witness

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 600.211, 600.212, 600.231

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 25 September 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 25 August 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.

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 a temporary stay in Australia. The delegate referred to insufficient evidence of the visa applicant’s financial capacity for his stay in Australia amongst the reasons for decision, as well as information about current country conditions in North Lebanon.

5. The review applicant appeared before the Tribunal on 8 June 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), Arabic and English languages.  The review applicant and visa applicant each gave evidence to the Tribunal.  They were frank and open in their responses to the Tribunal’s questions, their evidence was substantially consistent and the Tribunal found them to be honest and credible witnesses.  Details of their evidence is included in the discussion below,

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 30 year old single man from Tripoli North Lebanon. He has parents and 6 siblings in Lebanon and one brother (the review applicant) in Australia.  He is a storekeeper at a hospital in Tripoli and has been employed in this job since August 2016.  He indicates he was refused a visa on three occasions in 2014.  The review applicant is the visa applicant’s brother. He is an Australian permanent resident.  He is employed as a spray painter and has been in this employment for 5 years. The review applicant indicates he previously sponsored his mother and another brother to visit Australia and they came and returned within the visa period.  Attached with the application was a copy of the applicants family register, evidencing their relationship, visa applicant’s qualification of Technical Licence completed in August 2016,  review applicant’s bank statement indicating available balance, and letter confirming visa applicant’s employment.

8. Before the Tribunal the review applicant submitted a statement setting out further details.  He indicated he has previously sponsored another brother and his mother for visits to Australia in 2008 and 2009 and they came and departed within the period of the visa.  He sponsored the visa applicant previously in 2010 and was asked to provide a security bond but in the end they did not go ahead with the visit because the visa applicant was studying. He has now finished his study and has a good job at the hospital and only wishes to visit Australia for a short holiday. 

9. At the hearing the review applicant gave evidence about his current and family circumstances, and the visa applicant’s circumstances.  He migrated to Australia in 2006 on a Partner visa and is still married to her and they have three children together.  They live together in a three bedroom rented house. The visa applicant when he comes will stay with them in this house.  The review applicant told the Tribunal apart from his immediate family, he has no other siblings or parents in Australia.  He has several cousins and children of cousins who live in Sydney and Melbourne.

10. In Lebanon the review applicant has his parents, 3 sisters and 4 brothers. Three of his brothers work together in Tripoli in a car business.  They and two of his sisters are all married and have their own families.  The visa applicant and their youngest sister live with his parents.  He is single. He works and has been studying in recent years.  The visa applicant works at a hospital in an accounting role. He was studying for some years between his past two jobs. 

11. The review applicant told the Tribunal he sponsored another brother, Khaled in the past and also his mother, and they both visited and departed within the period of the visa. Since then he has sponsored a nephew, Ghaleb (in 2016) and the visa applicant several times in 2014 but they have been refused.  The visa applicant applied for a visa in 2010 and they were asked to provide a security bond but before they had paid it he decided he didn’t want to visit because he had just gained admission into a course and wanted to study.

12. The review applicant told the Tribunal he has travelled to Tripoli several times since migrating to Australia, mostly to see his parents.  He has not taken his children as yet because of school commitments.  He wants his brother to come to Australia to meet his children and to show him around and have a family holiday together.

13. The Tribunal asked why he specifically wants this brother to come over his other relatives.  He said his brother has been looking after their parents for many years and he believes he deserves a holiday.  Also he is particularly close to this brother.  He would also like to invite other siblings and his mother in future but at present none of them are available to have a holiday.  The review applicant mentioned that his mother looks after their youngest sister who has a disability, so she is not available at present to visit.

14. The Tribunal put to the review applicant its concerns that, having regard to independent information about country conditions, and in particular information that indicates economic and security issues in North Lebanon, this may be a factor which discourages the visa applicant from returning after a visit.  In response the review applicant said that this is not a concern for the visa applicant because he has ongoing employment and is in a secure and stable economic position.  He also referred to the favourable migration history of his brother and mother and reiterated that the visa applicant only wants to visit and meet his children and have a short holiday.  The review applicant said he would never allow his brother to breach the visa conditions and undermine his credibility. He is very honest and has always respected the laws in this country.  The review applicant said his brother is the same and he would never breach the law. 

15. The Tribunal took evidence from the visa applicant by telephone.  He confirmed his purpose for seeking the visa is to visit his brother and meet his children and have a holiday.  He lives with his parents.  His sister has a disability and stays at a boarding school but comes home once a week.  The visa applicant said he works at a hospital and prepares the bills in relation to the medicines people are prescribed.  He studying in the field of accounting and most recently obtained a qualification as a technician in this field.  He was studying between 2014-2016, before he obtained this current job.  

16. The Tribunal put to him its concerns he may not have sufficient incentives to return after a visit.  In response the visa applicant said he has a job to return to which is secure and stable.  In addition to his obligation to return to work, he has obligations to look after his parents as they are elderly.  The visa applicant pointed out that he was granted a visa in 2010 but chose not to come then because of his study. If he had intentions to reside in Australia he could have done it then.

17. The Tribunal put to him its concerns that independent information indicates there is economic pressures and security concerns from time to time in his area.  In response he said the situation in Lebanon has been like this for a long time. He just wants a holiday. He can go elsewhere but wants to come here because his brother is here. He hasn’t been out of Lebanon so far but plans to go to Turkey. He would not overstay in Australia because he has responsibilities to his parents, he does everything for them here. 

18. The Tribunal requested the visa applicant to provide evidence of his regular income being deposited into his bank account to support his claims regarding his employment.

19. 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.

20. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother and his brother’s family in Australia.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

21. 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 applicant has never travelled to Australia previously and so there is no personal visa history to consider.  Departmental records confirm the applicants’ oral evidence that he was previously approved for a visitor visa in 2010, subject to lodgement of a security, but the application was withdrawn by the applicant prior to the security being lodged. 

22. 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.

23. The Tribunal has also considered all other relevant matters (cl.600.211(c)). Above the Tribunal has indicated a favourable credibility assessment of the applicants and on the basis of their oral evidence together with documentary evidence provided, the Tribunal makes the following findings.  It accepts the visa applicant has parents and 6 siblings in Lebanon, and he lives with his parents and unmarried disabled younger sister. He is presently single.  He works for the past 2 years at the Hospital Albert Haykel, in a job related to his field of study.  Following the hearing he provided evidence of his bank statement for the period January to May 2018, showing regularly deposits of monthly income. He completed a further course of study from 2014-2016 and was employed prior to and since that time.  The applicant claims, and the Tribunal is prepared to accept, that he has obligations and caring responsibilities towards his parents, as the son who lives with them and given that he has no dependents of his own.  The Tribunal is satisfied, on the basis of these findings, that the visa applicant has close family ties, ongoing employment and is in a stable and secure financial position in his home area and these are strong incentives for him to return.

24. The Tribunal has considered general information about the country conditions in Lebanon, particularly economic and security pressures in North Lebanon[1]  and the applicants’ responses when this was put to them for comment.  It accepts their statements that Lebanon has been like this for a long time, and the visa applicant’s personal circumstances, particularly his ongoing employment indicates he is unlikely to be discouraged from returning on this basis.  It also takes into consideration in this context the favourable migration history of other close family members, the fact that all other close members of the applicants’ family have remained living and working in their home area and the review applicant himself has  returned several times to Tripoli in recent years and has not had any security issues. In these circumstances, the Tribunal accepts that the generic country information relating to conditions in the applicants’ home area is not, of itself a conclusive indicator that the visa applicant will not comply with conditions of the visa. 

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

    Finally the Tribunal takes into consideration the review applicant’s willingness to provide a financial security and considers that the consequences of non compliance with conditions for the sponsor is a further incentive for compliance in this case, on the basis that it accepts the review applicant would like to be able to invite other family members to visit in future, including his mother.  

25. For all of 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

26. 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