ZRAIKA (Migration)

[2020] AATA 198

ZRAIKA (Migration) [2020] AATA 198 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Raed ZRAIKA

VISA APPLICANT:  Mr Ibrahim ZREIKA

CASE NUMBER:  1810022

HOME AFFAIRS REFERENCE(S):           BCC2018/819710

MEMBER:Tania Flood

DATE:31 January 2020

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 31 January 2020 at 3:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream –genuine intention to stay temporarily – family and stable, full-time employment in relatively peaceful part of home country – other family members’ compliant travel to Australia – review applicant’s offer of security bond – 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 Immigration on 10 March 2018 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 16 February 2018. 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 (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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that he genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 28 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   BACKGROUND

7. According to information provided in the application for a Visitor visa, the visa applicant is a married thirty-seven year old male who resides in El Minieh, Eldenieh, North Lebanon, with his wife and four children. His father, three sisters, and two brothers also reside in Lebanon. He has two brothers living in Australia. He wishes to travel to Australia to visit his brothers and their families. He is employed as a sales manager in El Minieh, North Lebanon.

8. The review applicant is the younger brother of the visa applicant.

9. The visa applicant made a previous application for a Visitor visa on 9 March 2015, which was refused.   

   TRIBUNAL HEARING

10. The review and visa applicants provided consistent and credible evidence to the Tribunal which is summarised as follows:

11. The review applicant is married with four children.  He is in full-time employment and they rent their home.

12. The review and visa applicants have one other brother living in Australia.  Their father, two other brothers and three sisters reside in El Minieh in Northern Lebanon.  The family live in individual homes which form part of a bigger complex which is owned by their father.  The visa applicant owns his property outright and has no mortgage obligations.

13. The review and visa applicant’s father, one brother and one sister have all each visited Australia twice.  The visa applicant has been refused a Visitor visa twice.

14. The visa applicant has been married for many years and now has five children, the eldest being 13 and the youngest being just three months old. 

15. The visa applicant is in stable, full-time employment as a Sales Representative earning 1200USD per month plus commission.  He also runs an importing business outside of his paid employment.  This business has recently been affected by the economic unrest in Lebanon.  In the past, the visa applicant has travelled to Dubai, Kuwait, Turkey, Egypt, Iraq and Jordan to arrange the shipments of goods for import to Lebanon.

16. The visa applicant would like to visit Australia for two months to visit family and to get to know the country in which his brothers are living.  He can take one month’s paid leave from his job and has also been granted approval to take an extra one month unpaid leave for the purpose of undertaking the trip to Australia.

17. The visa applicant will be accommodated by the review applicant and expresses no interest in or intention to work or study while in Australia.

18. The visa applicant is a Sunni Muslim and describes his local area as a community of mixed religion.  He claims to have no political involvement in Lebanon and not to be experiencing any problems on account of his religion, political opinion or in connection with the economic uncertainty which has led to civil unrest in cities across Lebanon. 

19. The review applicant testified that he returned to El Minieh a year ago with his three children in the knowledge that the area is peaceful.

20. The visa applicant will return to Lebanon after visiting Australia because he is dedicated to his family.  Also he said he has a stable job which is not easy to obtain these days and which he does not want to jeopardise.  While the economic problems in Lebanon were acknowledged by the applicants the visa applicant claims not to have been overly affected by this because he owns his own home and supplements his paid employment through his import business. 

21. The review applicant stated that he previously paid security bonds to the department to facilitate the grant of Visitor visas to his brother and sister.  He indicated he would be willing to do the same for the visa applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

24. 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)).

25. The review applicant first arrived in Australia on 20 January 2007 on a Prospective Marriage visa (TO-300). He was granted a Combined Partner visa (UK-820/BS-801) on 21 October 2009. On 24 April 2012 he was granted Australian Citizenship.

26. The visa applicant has never visited Australia.

27. The visa applicant’s brother first arrived in Australia on 16 October 1997 as the holder of a Partner visa (UF-309). He was granted Australian citizenship on 15 October 2003.

28. The visa applicant’s father previously visited Australia on two occasions in 2008 and 2012 as the holder of a Tourist visa (TR-676). On both occasions he departed before his visa ceased.

29. Another brother of the visa applicant also visited Australia on two occasions in 2007 and 2008 as the holder of a Family Sponsored Visitor visa (UL-679). On both occasions he departed before his visa ceased.

30. The visa applicant’s sister visited Australia on two occasions in 2013 and 2016 as the holder of a Visitor visa.  On both occasions she departed before her visa ceased.

31. 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.

32. Both the visa and review applicants have produced evidence of their employment and the review applicant has demonstrated he is in a position to assist the visa applicant financially during his visit if this is required.  The visa applicant is planning to visit Australia for two months for the stated purpose of visiting immediate and extended family and to discover the culture and way of life in Australia.  The Tribunal is satisfied that he will not engage in study or training in Australia and that he will not and has no need to work in Australia if he is granted a Visitor visa.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

33. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

34. The visa applicant is married with five dependent children.  In addition, his father, two other brothers and three sisters are also residing in close proximity to him in El Minieh.  By contrast, the visa applicant has two brothers residing in Australia.  The Tribunal considers the visa applicant’s family ties in Lebanon far outweigh his family ties in Australia and that these ties, particularly his own immediate family, are a strong incentive for him to return home after a visit to Australia.

35. The Tribunal accepts the visa applicant is in stable employment and was persuaded by his testimony of the importance of holding onto such stable employment in uncertain economic times.  In addition, he continues to run an importing business to supplement his income albeit that this business has slowed down in recent times.  The available evidence supports that the visa applicant owns his own home.  On the available evidence the Tribunal is satisfied that the visa applicant’s financial situation is relatively stable and that the current economic conditions in Lebanon will not induce him to remain in Australia after his visa ceases. 

36. The Tribunal has also placed much weight on the migration history of the visa applicant’s family members, namely his father, brother and sister who have each visited Australia twice.  As can be seen above, these family members, who on the available evidence live in similar circumstances to the visa applicant, all complied with the conditions of their visas and returned to Lebanon after their respective visits to Australia. 

37. The Tribunal has also placed weight on the review applicant’s willingness to again provide a security bond in order to facilitate the grant of the visa.

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

39. 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

40. 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.

    Tania Flood
    Member