1505317 (Migration)

[2015] AATA 3058

1505317 (Migration) [2015] AATA 3058 (9 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Georges Zakhia

VISA APPLICANT:  Mr Paul Zakhia

CASE NUMBER:  1505317

DIBP REFERENCE(S):  BCC2015/1019671

MEMBER:Rachel Homan

DATE:9 July 2015

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 09 July 2015 at 11:58am

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 7 April 2015 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 24 March 2015. 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 to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 9 July 2015 to give evidence and present arguments. 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, 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.

8. 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.

9. The visa applicant is a 29-year-old man born in Zgharta, North Lebanon. In his visa application form, he stated that he had never been married or in a de facto relationship and continued to reside in Zgharta. The visa applicant’s father is deceased and his widowed mother and married sister also reside in Zgharta. The visa applicant has two brothers, including the review applicant, and an uncle residing in Australia.

10. The visa applicant stated that he wished to visit Australia for a period of two months to visit his brothers and uncle and to attend his brother’s wedding on 12 April 2015. He claimed he would return to Lebanon as his mother is alone and in need of support and because his work and life are there. The applicant stated that he had been employed as a supervisor for one year by engineer, Charbel Ayoub, and would support himself financially in Australia from his cash savings. The review applicant would provide him with accommodation and other support during his proposed visit to Australia.

11. Submitted with the visa application was a certified copy of the visa applicant’s Lebanese passport; a translated statement from the family register; a translated attestation by Charbel Ayoub, dated 26 February 2015, confirming the visa applicant’s employment as a foreman for a period of one year; and a statement from Banque Libano-Francaise in the visa applicant’s name, showing several recent deposits and a balance at 12 February 2015 of LBP17,883.75.

12. The visa applicant was sponsored for the visa by the review applicant, who is a 33-year-old Australian permanent resident. The review applicant is self-employed in his own tiling and waterproofing business and has previously sponsored the visa applicant and their mother to visit Australia. Evidence of the review applicant’s financial position, visa status, relationship to the visa applicant and evidence of their brother’s intended wedding were also submitted with the visa application.

13. The visa applicant has applied to visit Australia on several occasions. The visa applicant was granted visitor visas in January 2008, February 2010 and September 2013. On each occasion, he travelled to Australia and departed within his visa period. There is no evidence to suggest that the applicant failed to comply with the conditions attached to any of his previous visitor visas.

14. The visa applicant’s last visitor visa was granted after a decision to refuse to grant the visa was reviewed by the Migration Review Tribunal (MRT). The MRT decision record for that case (1300915) reveals that the visa applicant was residing with his mother and she was dependent on the visa applicant. The review applicant gave evidence that visa applicant’s home town of Zgharta was located a considerable distance from the Syrian border and south-west of Tripoli. The review applicant gave evidence that the town was safe and unaffected by conflict occurring in other parts of Lebanon. He claimed that if there were any issues of security, the visa applicant would need to remain in Lebanon with their mother. In remitting the application for reconsideration, the MRT placed weight on the visa applicant’s family’s history of compliance with Australian immigration laws, his employment in Lebanon, his family and community ties to Zgharta, and country information indicating that Zgharta was unaffected by sectarian violence and unrest.

15. In refusing the current visa application, the delegate found that the situation in Lebanon had deteriorated since the visa applicant’s last travel to Australia and considered that the two-month duration of the proposed visit was inconsistent with the visa applicant’s employment. The delegate also relied on the visa applicant’s relatively short period of employment with his current employer and the fact that the letter from his employer did not state that the visa applicant had been approved two months of leave. The Tribunal notes that the letter does, however, state that the visa applicant has requested leave to visit his relatives in Australia, after which he will resume working in Lebanon.

16. The Australian government’s Smart Traveller website currently warns Australian travellers to reconsider their need to travel to Lebanon generally and not to travel to Tripoli and parts of North Lebanon.[1] The website states that the ongoing conflict in neighbouring Syria is having a destabilising effect on Lebanon. Violent incidents related to the situation in Syria – including car bombs, improvised explosive device (IED) attacks and rocket attacks – have occurred in various parts of Lebanon and are likely to occur in the future. Violence may spill over without warning. Australians are strongly advised not to travel to Tripoli and northern Lebanon, north of a line from Tripoli to Sir Ed-Dinniyeh and Arsal due to ongoing clashes between Lebanese security forces and militants in the region. Security operations are underway in Akkar following the recent fighting in Tripoli and surrounds. Lebanese authorities assess that a number of the extremists involved in the fighting have sought refuge in northern Lebanon. The Lebanese Armed Forces (LAF) is conducting raids against individuals in Dinniyeh believed to be associated with ISIL, seizing weapons and explosives. 

    [1] accessed 19 June 2015

17. Maps of Lebanon show the town of Zgharta is around 11km south-west from Tripoli and located slightly south of the line from from Tripoli to Sir Ed-Dinniyeh and Arsal referred to above. Information available to the Tribunal and discussed with the review applicant at hearing suggests that the town has been affected by some recent security incidents, consistent with the report above. In January 2015, an Internal Security Forces intelligence officer was assassinated at his home in Zgharta. Around the same time, the military intelligence force raided a house in Zgharta’s Karm al-Tin area where it arrested two Syrian nationals. An explosive device, four mortar shells, an 83mm rocket, three hand grenades and ammunition were reported to have been seized at the house.[2] There are also reports of bombs being found on roads in the Zgharta district in January 2015.[3] In late 2014, raids were carried out on Syrian refugee encampments in Zgharta, during which 15 Syrians were arrested and a number of flags and banners of the Islamic State jihadist group seized.[4]

    [2] accessed 19 June 2015

    [3] accessed 19 June 2015

    [4] CX1B9ECAB10623: "More Than 20 Syrians Arrested in Raids throughout Lebanon", Naharnet, 18 October 2014,

18. The DFAT Country Report Information Report for Lebanon, dated 25 February 2014, indicates that security in the city of Tripoli and in Akkar Province is poor although Lebanese security forces have normally been able to contain violence quickly. There have also been cross-border incidents, including shelling from the Syrian side in border areas of the North Governorate. However, the southern, predominantly Christian, part of the North Governorate remains calm and secure.

19. The Tribunal notes that the Modified Non-Return Rate reported by the Department has increased in recent years for visitors from Lebanon. At 30 June 2012, the rate was 2.84. The rate rose to 6.62 at 30 June 2013, which was considerably above the global average of 0.69.[5]

    [5] accessed 19 June 2015

20. At the Tribunal hearing, the review applicant confirmed that he is the holder of a permanent spouse visa and has applied for Australian citizenship but is awaiting the outcome of that application.

21. The review applicant confirmed that he had sponsored the visa applicant to come to Australia to attend their brother’s wedding but that the wedding had now passed. The review applicant stated that the visa applicant still wished to travel to Australia in order to meet his brother’s new wife, congratulate his brother on his marriage, and spend time with the review applicant’s young children. During his last visit to Australia, the visa applicant had visited the wax museum in Sydney and attended a car show, as he has a particular interest in cars.

22. The review applicant gave oral evidence about the visa applicant’s employment and family circumstances that was consistent with the documentary evidence before the Tribunal. He confirmed that the visa applicant resides with their elderly mother in a unit, which the review applicant had assisted their mother to purchase several years earlier. The visa applicant’s sister lives about 15 minutes’ drive from the unit and they see each other on an almost daily basis. Their sister gave birth to a son one month ago.

23. The review applicant confirmed that the visa applicant was presently employed as a foreman and had been employed by the same employer for approximately one year. The review applicant was unsure why the visa applicant had only submitted evidence of recent bank deposits, commenting that he does not involve himself in his brother’s financial affairs. The review applicant was aware, however, that the visa applicant had lent money to another person who had repaid the loan.

24. The Tribunal discussed the country information outlined above with the review applicant. The review applicant stated that Zgharta was located some distance from the areas mentioned and could be accessed by a different road without the need to travel to Tripoli. He expressed the view that security situation within Zgharta was currently calm and that the situation in Lebanon was in fact better now than it had been during the visa applicant’s last visit to Australia. The review applicant was unaware of some of the incidents reported to have taken place in and around Zgharta in the last year and stated that after his father died, he and his brothers had looked after his mother and they would not leave her alone if the security situation was bad. The review applicant stated that arrangements had been made for their sister to look after their mother while the visa applicant was in Australia.

25. The Tribunal put to the review applicant that its task was to balance those factors indicating that the visa applicant would comply with his visitor visa conditions against those indicating he may not. On one hand, the visa applicant has a strong immigration history, and members of his family, including the review applicant, also have a good immigration history in Australia. The visa applicant has family connections and employment in Lebanon and the presence of his mother is a particularly strong pull factor for him to return. On the other hand, he is a young, single man. He has family connections in Australia and skills that would make it relatively easy for him to find employment in this country. There is also a troubling and worsening security situation in the areas around where the visa applicant lives in Lebanon. The review applicant expressed the view that the visa applicant’s situation had not changed since his previous visits to Australia. During his last visit he was also young, single and employable but he and his family respected Australia’s immigration laws and the visa applicant had returned to Lebanon before his visa expired.

26. The Tribunal has weighed the evidence before it and is satisfied that the visa applicant genuinely intends to visit Australia temporarily and comply with the conditions attached to his visitor visa. Although the conflict in Syria appears to be increasingly affecting security in Lebanon, including in the area where the visa applicant resides, Lebanon is a country which has been beset by intermittent violence and sectarian tensions for decades. The reports of recent incidents in and around Zgharta reveal heightened tensions and an increased security risk associated with the influx of Syrian refugees but suggest that these matters have been handled effectively by Lebanese security forces. The Tribunal places weight on DFAT’s report that the southern, Christian parts of the North Governorate remain calm and secure. While the Tribunal accepts that there is a high non-return rate for visitors from Lebanon, the Tribunal is required to consider the individual circumstances of the applicant before it. The visa applicant in this case has visited Australia on three occasions and complied with his visa conditions, in circumstances not dissimilar to the present, despite having strong personal and economic incentives to remain in Australia. The presence of the visa applicant’s mother in Lebanon, his close relationship with her and his sister, and his established lifestyle in Lebanon have in the past proven to be compelling inducements for him to return to Lebanon at the end of his permitted stay. The Tribunal accepts that he will once again return to Lebanon if granted a visitor visa now.

27. 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

28. 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.

    Rachel Homan
    Member