ZREIKA (Migration)

[2021] AATA 1519

ZREIKA (Migration) [2021] AATA 1519 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Eman Zreika

VISA APPLICANT:  Mr Abdul Nasser Zrayka

CASE NUMBER:  1908896

HOME AFFAIRS REFERENCE(S):          CLD2019/25988455

MEMBER:David Crawshay

DATE:12 May 2021

PLACE OF DECISION:  Melbourne

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 May 2021 at 3:07pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – most family members and fiancée in home country – applicant’s employment and financial support of them – previous compliant travel to other countries – relative’s previous application for protection visa on grounds not relevant to present application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.611

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 14 February 2019 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 applied for the visa on 5 February 2019. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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 the purposes for which the visa is granted.

5. The review applicant appeared before the Tribunal on 5 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.211 is met. This 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).

10. The visa applicant has not held any visa to Australia, substantive or otherwise.

11. 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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

12. Based on the evidence, the Tribunal is satisfied that he will comply with these conditions during the period of any visitor visa granted.

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

14. The Tribunal has considered evidence about the visa applicant’s family situation, including the evidence of the parties at hearing and extract of family registration from January 2019. It has considered that he is claimed to have his mother, two younger brothers, a sister and some aunts and uncles living in Lebanon, as against his sister (the review applicant) and some aunts and uncles living in Australia. The Tribunal accepts this evidence and accepts that the visa applicant would leave behind most of his family in order to come to Australia. Moreover, it accepts the parties’ claim that he has a role in financially supporting his family members in Lebanon. This evidence is given weight in favour of the visa applicant returning to Lebanon at the end of any visitor visa period imposed.

15. The Tribunal has considered the visa applicant’s employment circumstances. It notes that the parties gave evidence that he has been involved in the family business – a coal trading business – since 2010 when their father passed away. It notes in this regard that evidence had previously been provided in 2019 to demonstrate the bona fides of the business. At hearing, the Tribunal told the parties that it had no evidence from recently to show that the business was still a going concern. It told them that it would benefit from being provided with such evidence, such as contracts, invoices or photographs of the premises or of inventory.

16. Following the conclusion of the hearing, on 12 May 2021 the review applicant provided the Tribunal with a number of documents. Unfortunately, these documents were in a language other than English and were untranslated. However, the Tribunal was able to ascertain that the documents were invoices and some were dated from May 2021. Nevertheless, other details, such as the payer and payee, were not readily ascertainable. For this reason, the Tribunal treats this evidence with some caution. The evidence of the visa applicant’s employment circumstances is given some weight by the Tribunal. However, and owing to the quality of the evidence of recent trading activities of the visa applicant’s claimed business, this weight is diminished.

17. The Tribunal has considered evidence about the visa applicant’s personal circumstances. It heard from the parties at hearing that the visa applicant is still unmarried but has a fiancée, Eyat Bahwache, who he met by chance at a medical clinic where she worked. The visa applicant said that he visited her family home and proposed to her on 8 November 2020. He said that there are photographs of the engagement on Facebook. The Tribunal indicated that it would like to see these photographs and on 12 May 2021 the review applicant provided three photographs depicting an engagement party and a Facebook post that listed the parties as getting engaged on 8 November 2020. Based on this evidence, the Tribunal accepts that the visa applicant is engaged. It accepts that the presence of a fiancée may provide some incentive for the visa applicant to return to Lebanon at the end of any visa period imposed on him. This evidence is given weight of a positive nature.

18. The Tribunal has considered the visa applicant’s migration history. At hearing, the parties told it separately that he had previously made trips to the UAE (Dubai) for work and for tourism and to Turkey for tourism. The Tribunal acknowledges the consistency of the parties’ answers and accepts based on this that the visa applicant has travelled to those countries. There is no evidence in front of the Tribunal to suggest that he did not comply with conditions imposed on his stays in those countries. This evidence is given some weight, although this weight is somewhat diminished as the Tribunal considers that these countries do not hold the same or similar incentives as Australia economically or in terms of family.

19. The Tribunal has considered the migration history of the visa applicant’s family. Specifically, it has considered the circumstances of one of the parties’ younger brothers, [Mr A], who applied for a protection visa previously. The Tribunal heard from the visa applicant that the reason for protection was that his brother had an issue with someone in Lebanon but that the family had a reconciliation with the person before his brother returned to Lebanon. The review applicant told the Tribunal that she was not sure why [Mr A] sought protection but said that it may have been because Lebanon at that stage was not stable.

20. The Tribunal has had regard to this evidence. It notes the seeming inconsistency between the parties in relation to the reason [Mr A] sought protection but does not consider this inconsistency to be adverse. It has come to this conclusion firstly because the review applicant did not profess to know the exact reason for his claim of protection but instead ventured a guess. Secondly, and in any case, it considers that [Mr A]’s situation is sufficiently different from the visa applicant’s situation insofar as the visa applicant is engaged and appears to provide financial support to his family members, whereas [Mr A] at the time of applying for the protection visa in January 2014 was not married or engaged and did not have a substantial job according to details on that file. The Tribunal considers that the visa applicant’s circumstances are apt to distinguish him from the circumstances of [Mr A] when he applied for protection in January 2014. For these reasons, the evidence of [Mr A]’s previous protection visa claim is given very little adverse weight by the Tribunal.

    CONCLUSION

21. The Tribunal has considered and weighed the above evidence against itself when assessing whether the visa applicant genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted. Although it finds that at least one of his family members converted to a permanent visa upon arriving in Australia on a temporary visa, it finds that there is countervailing evidence that would suggest he returns to Lebanon at the end of his visa period. Specifically, it finds that he is currently engaged, most likely works in the family business and has financial obligations in respect of his family in Lebanon. It considers that the weight of evidence favours him returning to Lebanon at the end of any visitor visa period imposed.

22. 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

23. 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.

    David Crawshay
    Member