Zahran (Migration)

[2024] AATA 305

Zahran (Migration) [2024] AATA 305 (27 January 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ziad Zahran

VISA APPLICANT:  Mr Nasr Zahran

CASE NUMBER:  2216724

HOME AFFAIRS REFERENCE(S):          BCC2022/1127778

MEMBER:Mara Moustafine

DATE OF DECISION:  27 January 2024

DATE CORRIGENDUM

SIGNED:31 January 2024

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1.The words “owns his house” at paragraph [11] should be changed to “rents his house”.

Statement made on 31 January 2024 at 2:35pm

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Ziad Zahran

VISA APPLICANT:  Mr Nasr Zahran

CASE NUMBER:  2216724

HOME AFFAIRS REFERENCE(S):           BCC2022/1127778

MEMBER:  Mara Moustafine

DATE:  27 January 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 27 January 2024 at 5:38pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – inconsistency in the evidence between the visa and review applicants – sufficient personal, employment and cultural ties to Lebanon – decision under review remitted

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 9 September 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The visa applicant applied for the visa on 31 March 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.

1. 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.

Evidence before the Department

1. Based on his visa application, the visa applicant is a 42-year-old citizen of Lebanon, born in Beirut and currently living in Damour Chouf, Mont-Liban. He is seeking the visa for the purpose of a family visit of up to 6 months, to spend time with his brother, the review applicant, who has a severe asthma condition, and his family after more than eight years and to attend family festivities. The visa applicant has never been married and has been employed as a Machinery Operator and Driver at Remco SARL in Beirut since 2014. He performed military service in 2004-2005 and reserve duty in 2006 and 2021. He has not visited Australia previously and has not been refused a visa to Australia or any other country. All costs of his trip will be funded by the review applicant and he will have $5000 cash to support his stay.

1. Based on his sponsorship form, the review applicant was born in Damour, Lebanon in February 1972 and is an Australian citizen. He has been employed as a Senior Architect- Project Architect at IDA Design Group for over a year. He declared he will lodge a security bond for the visa applicant.

1. Documents submitted to the Department in support of the visa application included copies, with translation where relevant, of the visa applicant’s tax statement, a letter from his employer confirming his employment as a truck driver with REMCO fuel company since 2014; his family register; Lebanese army reserve card; military discharge papers; the review applicant’s NAB Transaction statement; his payslips from TAFE NSW and IDA Design Group.

1. On 9 September 2022, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because they were not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa grant. While noting the support from the sponsor, the delegate found that that the visa applicant had not provided evidence of sufficient personal, business, employment and cultural ties to their home country to demonstrate that they intend a genuine temporary stay in Australia.

Evidence before the Tribunal

1. On 14 November 2022 the review applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review.

1. On 13 January 2024, the review applicant provided the following relevant documents to the Tribunal in support of the application:

   ·Letters from SGBL Bank SAL dated 14 October 2022, addressed to the Australian embassy; and dated 26 October 2022 affirming the visa applicant is a client of the bank and has settled debts on the account.

   ·Letter from Damour Municipality dated 13 October 2022 confirming visa applicant’s residency in Zahran building and permission for its reconstruction and refurbishment;

   ·Undated photos of re-construction and refurbishment of Zahran building in Damour.

   ·Letters from REMCO SARL dated 25 February 2022 and 28 September 2022 confirming the visa applicant’s employment with company as a driver since 2014.

   ·Payslip from REMCO SARL for the period 1 September 2022 to 30 September 2022;

   ·Engagement photos of visa applicant and fiancé, Mariebelle Abi Khalil dated 13 August 2022;

   ·Facebook links and photos of visa applicant and fiancé, including engagement ceremony videos and New Year’s Eve 2023-2024.

   ·A letter from visa applicant dated 2 April 2022 authorising his brother, the review applicant, to act on his behalf.

   ·Familial extract of vital statistics and visa applicant’s individual extract of vital statistics record, dated 8 March 2022.

   ·Judicial record extract No.2 for visa applicant dated 28 February 2022.

   ·A declaration of visa applicant’s completed military service dated 22 March 2022 and reserve Card dated 9 March 2022.

   ·A copy of the biodata page of visa applicant’s Lebanese passport.

   ·The visa applicant’s Biometric appointment letter dated 2 April 2022.

   ·The visa applicant’s COVID-19 vaccination card, Lebanon.

   ·The review applicant’s NSW Registered Architect current practising certificate.

   ·The review applicant’s Curriculum Vitae.

   The hearing

1. The review applicant appeared before the Tribunal by MS Teams videoconference on 17 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

1. At the hearing, the review applicant told the Tribunal that he is married with two children, owns his house and is permanently employed as an architect. His financial situation has improved since he last provided bank statements to the Department in 2022. He has no other family in Australia. He said he would pay for brother’s visit and is, if required, prepared to post a bond as a guarantee that his brother will depart within the timeframe of his visa.

1. The visa applicant told the Tribunal that he lives in his family house in Damour on land inherited from his grandparents to which his siblings have granted him their shares. He has been employed as a driver for Total Energy oil company for 10 years, earning around USD 1000-1200. He has recently renovated this house and is engaged to be married.

1. He wishes to visit Australia for 3-4 weeks for which he can take leave from his company. He said he would pay for his visit and would not work or study while in Australia. While he did not have money in the bank, he could show the Tribunal his cash to prove he had the funds

for the visit. His incentives to return to Lebanon after the visit are his work, his forthcoming marriage and his property.

1. The Tribunal discussed with the applicants several concerns about the evidence presented. Firstly, inconsistency in the evidence between the visa and review applicants as to who would pay for the visit. The review applicant said finances for the visit was not an issue and that his brother had his dignity. The Tribunal said it was aware that due to the precarious economic situation in Lebanon, including currency devaluation and restrictions on bank withdrawals, people were not confident about keeping their money in the banks. However, the Tribunal could attach weight to a pile of cash as evidence. The visa applicant claimed that when his salary was deposited into his Audi bank account, he would withdraw it and keep in a safe place.

1. The Tribunal also queried the discrepancy between the visa applicant’s evidence at the hearing that he had been working for the Total company and the documentation he provided which was from Remco. The visa applicant claimed that Remco was part of Total Energies.

1. Noting that the visa applicant had been engaged since August 2022, the Tribunal asked when the marriage would take place. The visa applicant initially said he had not yet married because he is concerned about the instability in south Lebanon. To the Tribunal’s suggestion that instability in south Lebanon appeared to be an ongoing issue, he responded that renovating his house had cost him a lot of money and hard work and now that this was complete he could take the next step and would marry in 4-5 months.

Post-hearing submissions

1. On 22 January 2024, further submissions were provided to the Tribunal to address a number of issues discussed at hearing, including:

·     a statement from the visa applicant, in which he stated that, due to distrust in the Lebanese banking system, his employer had arranged with Bank Audi that he could regularly withdraw all his wages and keep the cash in a safe place; that his siblings had waived their shares from the family estate to him with the condition that he gets married. He had taken out a loan to refurbish the house, which he had now repaid.

·     A statement from the visa applicant’s fiancée that she intends to marry him in spring 2024 and that she is currently assisting him with the home refurbishment.

·     a statutory declaration (not witnessed) from the review applicant, including that, while he would cover his brother financially for his visit, his brother, a man with dignity, had offered to pay for his own ticket; and reiterating points made by the visa applicant.

·The visa applicant’s Bulletin of Payments for periods 1 December 2023 to 30 December 2023; his Audi Bank statement of account from 1 January 2023 to 17 January 2024; letter from REMCO SARL dated 17 January 2024, noting that it was a sister company of TotalEnergies Marketing Lebanon SAL and confirming his employment since 2014; a payslip from REMCO SARL for period 1 September 2023 to 30 September 2023 and leave approval from REMCO SARL, dated 17 January 2024.

·The review applicant’s bank account information and Letter of Engagement with Pyramids Builders dated 30 June 2023.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

1. 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: cl 600.231.

1. 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)).

1. As the applicant has not previously visited Australia, the question of previous compliance is not relevant. There is no evidence before the Tribunal of non-compliance with conditions of his previously held visa on the part of the review applicant.

1. According to Department records, the review applicant first arrived in Australia on a Student visa in 2002 and held several subsequent Student visas before being granted a subclass UX 495 Independent Regional Provisional visa in 2006 and a subclass VB 887 Skilled Regional visa in 2009. There is no evidence before the Tribunal of any non-compliance with conditions of previously held visas on the part of the review applicant.

1. 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.

1. The Tribunal has considered the written and oral evidence of the review and visa applicants, as well as all the documentary evidence submitted in support of the application.

1. Based on the documentary evidence provided by the review applicant and oral evidence of both the review and visa applicants at hearing, the Tribunal accepts that the review applicant has enough funds to cover expenses for his brother’s trip to Australia and will accommodate him during his stay and that the visa applicant can pay for his airfare. It accepts the evidence of the visa applicant that he does not intend to work or to study while in Australia. In these circumstances the Tribunal is satisfied that the visa applicant intends to comply with condition 8101 and Condition 8201.

1. Condition 8503 refers to entitlement and is not a condition that involves compliance.

1. In the context of the visa applicant’s intention to comply with condition 8531, the Tribunal accepts the evidence provided by the visa and review applicants and the written statement from his fiancée that the visa applicant is engaged and intends to marry in spring 2024. It accepts that his forthcoming marriage, as well as his long term employment with Lebanon and property in Lebanon provide him with incentive to return home within the timeframe of his visa. Having considered all the evidence before it, the Tribunal is satisfied that the visa applicant intends to comply with condition 8531 and will not remain in Australia after the end of his permitted stay.

1. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

1. Having considered all the evidence now before it, the Tribunal is satisfied that the applicant has sufficient personal, employment and cultural ties to Lebanon to demonstrate that they intend a genuine temporary stay in Australia.

1. 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

1. 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.

Mara Moustafine Member