WARIDA (Migration) [2018] AATA 2934 (28 June 2018)

Last Updated: 20 August 2018

WARIDA (Migration) [2018] AATA 2934 (28 June 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mr ALI ABDULLATIF WARIDA

VISA APPLICANT: Mr MUSTAPHA ABDULLATIF WARAYDI

CASE NUMBER: 1725153

DIBP REFERENCE(S): BCC2017/3198774

MEMBER: Roslyn Smidt

DATE: 28 June 2018

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 28 June 2018 at 11:07am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Sponsored Family stream – Visiting family members – Sufficient funds for trip to Australia – Genuine intention to stay temporarily – Unconvincing evidence – Credibility concerns – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 600.611, 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 28 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 1 September 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 review applicant appeared before the Tribunal by telephone on 25 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) and English languages.
5. The review applicant was represented in relation to the review by his registered migration agent.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

7. The visa applicant and the review applicant are brothers. On 1 September 2017 the visa applicant applied to visit Australia for a period of three months from October 2017 until January 2018. At the hearing the applicants stated that the visa applicant now wished to some to Australia for a period of only one month and that he would like to come next month (in July). They stated that he would fund his own travel and would stay with the review applicant during his visit.
8. The review applicant is a 31 year old married man. He first arrived in Australia on a visitor visa in 2008. During that visit he met the woman who is now his wife and migrated to Australia on a spouse visa later the same year. He now has three children. His older brother also migrated to Australia on migrated to Australia on marriage grounds. Several cousins also live in Australia. The review applicant works as a self-employed tiler.
9. The visa applicant is a 30 year old married man from El Minieh in North Lebanon. He has four children aged between one and seven years old who would remain in Lebanon during his proposed visit. His parents and three of his brothers also reside in El Minieh. He has worked for a company called Rim Natural Spring for a period of 4 years. He visited Australia for a period of three months in 2009 and complied with the conditions on his visa.
10. In support of his application the visa applicant provided a copy of a statement from Bank Audi dated 19 April 2016 which shows three monthly salary deposits, two of approximately 1.2 million Lebanese pounds ($US800), one of approximately 2.1 million Lebanese pounds ($US1400) and a balance of 4,716 Lebanese pounds ($US5). He also provided a statement from Fransabank with a balance of 3.2 million Lebanese pounds ($US2100) on 21 June 2017. There are several cash deposits into this account, but no mention of any salary deposits. He also provided a letter from his employer which states that he had worked for the company since September 2012, that he received a monthly income of $US1500 and that he had been granted three months unpaid leave to visit Australia.
11. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she was not satisfied that intended to remain in Australia on a temporary basis. She noted that North Lebanon was experiencing ongoing political and sectarian tensions and the situation had deteriorated since the visa applicant visited in 2009. She also found the visa applicant’s stated intention to spend three months in Australia on unpaid leave when he had a young family which depended on him raised questions regarding his intentions.
12. At the hearing the review applicant said his mother had visited his older brother in Australia in about 2003 and his father had visited in 2008. Two of his cousins have also visited. He said that they had all complied with the conditions on their visas. When asked if it was likely that his parents or other siblings would visit Australia in future he said that his parents were getting older and unlikely to come again and his siblings were busy and had no wish to visit in the foreseeable future. He said that he had invited the visa applicant to Australia to repay the hospitality he had been shown when he visited him in Lebanon.
13. When asked how the visa applicant would pay for his visit to Australia and also provide for his family during the time he was absent he said that he had a stable job and savings to cover all of these costs.
14. I reminded the review applicant of the reasons his brother’s visa application had been refused and asked if there was anything he would like to say which would help me to understand why his brother would comply with the conditions on his visa and leave Australia at the end of the permitted period. He said that his brother had to return to his job and family and that he was confident that he would comply with all of the conditions on his visa.
15. The visa applicant confirmed that he continued to be employed by the same company in Lebanon. He said that would fund his own travel to Australia and would also leave funds to support his wife and family in his absence. He said that his family lived in their own home and one of his brothers in law lived with them. Other family members lived nearby and would provide support for his family while he was in Australia.
16. When asked why he had changed his proposed stay in Australia from three months to one month the visa applicant said that as he would be visiting in the northern hemisphere summer he was only able to take leave for one month.
17. On the day of the hearing the applicants’ representative provided a copy of a statement for an account held by the visa applicant at the Byblos Bank. It shows six salary deposits between December 2017 and 14 June 2018. All but one ranged from 1.2 million ($800US) to 1.8 million Lebanese pounds ($1200US). The most recent deposit dated 31 May 2018 was for 3.2 million pounds (SUS2100). The balance at 14 June 2018 was about $US50.
18. When asked about his current financial circumstances the visa applicant said that he currently had accounts the Byblos Bank and Fransabank, but he did not rely much on banks and he also had $US10,000 in cash at home. When asked where these savings came from he said that he had saved the money from his salary over the preceding 12 to 18 months. He said that his salary varied between $1000 US and $2000 US a month depending on how much he water he sold. I observed that it appeared somewhat unlikely that he would have been able to save this amount within 12 to 18 months given that he had a family to support. He said that he earned more in summer and when he usually made about $2000 a month. I observed that it seemed somewhat strange that he would decide to visit Australia in the northern hemisphere summer if that was the time he was able to earn most money and there appeared to be no reason why he could not visit his brother during the months he did not earn as much. He said that he had told his brother he could only some for a month because it was the high income period.
19. I asked the applicant why he had withdrawn his savings from the bank and kept them at home. He said that it was not convenient for him to go to the bank every time he needed money. I observed that the money appeared to be his savings not money for general expenses. I also advised him that I was aware that there are ATMs in Beirut and it appeared likely that they were also available in his area which suggested it was not difficult to obtain cash when needed. I advised him that I had doubts about his financial situation and whether he had sufficient funds for his trip to Australia. He maintained that his evidence was all true and correct and that he would comply with any conditions on his visa.
20. After taking evidence from the visa applicant I telephoned the review applicant and advised him of his brother’s evidence regarding his savings and my concerns about his ability to accumulate this sum and his ability to fund his travel. The review applicant said that the cost of living in north Lebanon was much lower than in Beirut and his brother had the claimed savings in cash. He said that his brother had complied with the conditions on his visa in 2008 and would do so again if granted a visa.
21. The applicants’ representative noted that the visa applicant had been single and had no dependents when he travelled to Australia in 2008, but had complied with all of the conditions on his visa. He now had a good job and his wife and children would remain in Lebanon which provided a strong incentive for him to return.

CONSIDERATION OF CLAIMS AND EVIDENCE

22. As noted above the visa applicant’s application was refused because the delegate was not satisfied that the he met the requirements of cl.600.211 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. In addition to meeting these requirements the visa applicant must also meet the requirements in cl.600.212 which states that he must have adequate means to support himself or access to adequate means to support himself during the period of his intended stay in Australia.
23. 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(2)):
24. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). They include cl.600.211 and c600.212. The former 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. The latter requires the Tribunal to be satisfied that the applicant has adequate means to support himself or herself or access to adequate means to support himself or herself.
25. In the present case, the visa applicant seeks the visa for the purposes of visiting his brothers. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.
26. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). The visa applicant was granted a visitor visa in 2008 and complied with the conditions of this visa.
27. 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.
28. After careful consideration of the evidence I am not satisfied that the visa applicant has given a truthful or an accurate account of his current financial situation. The most recent bank statement which he has provided shows a current balance of only about $US50. He claims that he also has cash savings of $US10,000, but I am not satisfied that this is the case. When asked for the source of these savings he said that he had accumulated this amount from his earnings over the last year or year and a half. I have considerable difficulty accepting that the visa applicant would have been able to save $US10,000 from his relatively modest income while supporting his wife and four children. I also note that while he claims his salary varied between $US1,000 and $US2,000 a month the bank accounts which he has provided include only one salary payment of about $US2,000, with the rest ranging from $US800 to $US1400 which suggests that he may have exaggerated his income. Finally, when asked why he kept his savings in cash the applicant said that it was not convenient for him to go to the bank every time he needed money. While this may be a plausible explanation for keeping a significant amount of money in cash it does not explain why he withdrew all of his savings. I note that his bank statement indicates that he made a significant number of withdrawals of cash from ATM machines, which suggests that it was not difficult for him to obtain funds when he needed them.
29. I also find other aspects of the visa applicant’s evidence unconvincing. He originally requested a visa for a period of 3 months during which he would take unpaid leave from his job. There is no suggestion that he has any source of income apart from his job and I have difficulty accepting that he would have decided to forego three months income in order to spend time with his brothers in Australia while leaving his young family in Lebanon. He now states that he wishes to come to Australia for a month in the northern hemisphere summer, during a time in which he claims that he earns twice as much as his earnings in other seasons. There is no suggestion that he wishes to come to Australia to attend a particular event or because his siblings need him to be in Australia for any reason and I have find it difficult to understand why he would chose to come during a time he claims to be his best earning possibility rather than wait until the end of summer.
30. After considering all of the evidence I do not find the visa applicant to be credible witness. I am not satisfied that he genuinely intends to remain in Australia on a temporary basis or that he will comply with conditions 8101 or 8531 which would apply if he were granted a visitor visa. In reaching this conclusion I acknowledge that his job and family in Lebanon provide significant incentives for him to return and that he complied with the conditions on his visa when he visited Australia in 2008. However, I can think of no benign reason for his failure to provide honest evidence regarding his current financial circumstances and neither his family ties and employment in Lebanon nor his past record of compliance with migration rules is sufficient to persuade me that he will comply with the conditions of the visa which is the subject of this application.
31. For the above reasons the Tribunal is not 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 not met.

DECISION

32. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Roslyn Smidt
Member