1511779 (Migration)

[2016] AATA 3054

1511779 (Migration) [2016] AATA 3054 (7 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr FADI AKAOUI

VISA APPLICANT:  Mr HILAL AKKAWI

CASE NUMBER:  1511779

DIBP REFERENCE(S):  BCC2015/1765890

MEMBER:Rachel Homan

DATE:7 January 2016

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 07 January 2016 at 10:20am

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 July 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 20 June 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 6 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s mother, Mrs Amneh Bayado, the visa applicant’s son Mr Ahmad Akkawi, and the visa applicant by telephone from Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. 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 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. According to information provided in his visa application form, the visa applicant is a 49-year-old Lebanese citizen who wishes to visit Australia for up to 3 months to see his mother, son and siblings. The visa applicant indicated that he wished to spend time with them during the remaining days of Ramadan and to celebrate Eid.

10. The visa applicant gave a residential address in El Swayka, Tripoli and indicated that he would be travelling without his wife and three daughters who would remain in Lebanon. The visa applicant provided details of two brothers, including the review applicant, two sisters, a son, grandchild, and mother residing in Australia.

11. The visa applicant declared that he had been employed as a carpenter since 1984 and would be supported financially by the review applicant during his time in Australia.

12. Submitted with the visa application were translated family registration statements; a copy of the identification page of the review applicant’s Australian passport; evidence of the review applicant’s financial position; copies of the visa applicant’s current and previous Lebanese passports; the visa applicant’s individual registration statement; a receipt issued by Blom Bank in the visa applicant’s name, dated 27 April 2015, in relation to a deposit of USD$3,500; a registration document for a 1979 BMW vehicle; and a letter from the applicant’s employer stating that he earns a monthly salary of USD$960 and has been granted leave for a holiday of three months.

13. Contained in the visa applicant’s previous passport is an Australian visa label and exit/entry stamps relating to a visit to Australia between June and August 2012.

14. Prior to the Tribunal hearing, the Tribunal received additional evidence relating to the review applicant’s financial position.

15. At the Tribunal hearing, the parties gave consistent oral evidence with regard to the visa applicant’s personal circumstances. The oral evidence indicated that the visa applicant resides in a home with his wife and youngest daughter. The visa applicant’s elder two daughters are married and living in other suburbs of Tripoli. The oral evidence confirmed that the visa applicant is employed as a carpenter and lives in a home, the title of which is in his mother’s name. The review applicant and the visa applicant gave evidence that the visa applicant’s mother and siblings in Australia provide him with additional financial support. The review applicant told the Tribunal that they send approximately AU$600-AU$700 per month.

16. The review applicant told Tribunal that his sisters migrated to Australia in the 1970s and that he, his mother and other brother migrated in 1986. The review applicant explained that the visa applicant did not migrate at the same time as he was newly married and his wife did not want to leave Lebanon. The review applicant confirmed that he had no other siblings residing in Lebanon. Mr Akkawi told the Tribunal that he migrated to Australia approximately 4 years ago as the holder of a Partner visa.

17. The oral evidence indicated that the visa applicant wished to visit Australia in order to spend time with his mother who is currently too unwell to travel. Previously, Mrs Bayado had been able to travel to Lebanon at regular intervals to spend time with the visa applicant but was no longer able to do so due to a range of medical conditions. The review applicant and Mr Akkawi told the Tribunal that Mr Akkawi’s wife was expecting their second child in April 2016 and this was an additional reason why the visa applicant wished to spend time in Australia. Mr Akkawi told Tribunal that he last saw the visa applicant when he and his wife and now three-year-old son returned to Lebanon and stayed with him for 21 days about a year ago.

18. The visa applicant told Tribunal that he had requested a stay of up to 3 months but was willing to stay for a shorter period and would return to Lebanon before the expiry of his visa. The parties all gave evidence that the visa applicant had not worked and had complied with the conditions attached to his previous visitor visa during his 2012 visit to Australia. The review applicant told the Tribunal that he had paid a bond of approximately $15,000 in relation to the visa applicant’s 2012 visit and was willing to pay a bond of a similar amount in relation to the current application.

19. The Tribunal discussed with the parties general country information indicating that the security and economic situation in Lebanon had deteriorated since the visa applicant’s last visit to Australia, which suggested that the visa applicant may have an incentive to remain in Australia beyond the period of his visitor visa.

20. A DFAT Country Information Report for Lebanon issued on 18 December 2015 states that since 2011, tensions and conflict in Syria have increasingly affected Lebanon, including through the presence of Lebanese nationals in Syria fighting on opposing sides and a significant number of Syrian refugees in Lebanon.[1] In relation to the economic situation, DFAT advised that estimates of unemployment have nearly doubled to 20 per cent since 2011. The youth unemployment rate is 22 per cent. The conflict in Syria is likely to continue to adversely affect employment in Lebanon, particularly in areas of high refugee concentration, by expanding the pool of available labour and decreasing wages. Overall, DFAT considers that low levels of economic opportunity, which have been exacerbated by the influx of Syrian refugees, are acting as a push factor for external migration.[2] DFAT advises that the highest concentrations of Syrian refugees reside in the Beka’a Governorate, followed by the North Governorate.[3]

    [1] DFAT Country Information Report – Lebanon, Department of Foreign Affairs and Trade 18 December 2015, CISEC96CF14155 Lebanon​ at 2.8

    [2] DFAT Country Information Report – Lebanon, Department of Foreign Affairs and Trade 18 December 2015, CISEC96CF14155 Lebanon​  at 2.21

    [3] DFAT Country Information Report – Lebanon, Department of Foreign Affairs and Trade 18 December 2015, CISEC96CF14155 Lebanon​  at 2.13

21. Travel advice contained on the DFAT Smart Traveller website strongly advises Australian travellers not to travel to Tripoli and parts of North Lebanon due to ongoing clashes between Lebanese security forces and militants in the region[4]. A 2013 DFAT report on sectarian violence in Lebanon[5] states that sectarian violence in Tripoli is mostly limited to the (Alawite) suburb of Jabal Mohsen and the (Sunni) suburb of Bab al-Tabbeneh. The meeting point of these two suburbs—Syria street—is a recurring flashpoint for sectarian violence. In 2013, the fighting remained mostly contained to these two neighbourhoods, though it extended on occasion into surrounding parts of Tripoli. The Lebanese Armed Forces has regularly interceded to halt sectarian violence in Tripoli and restore law and order. However it has so far been unable to prevent effectively sectarian violence from breaking out, including by disarming the heavily-armed militia present in both Sunni and Alawite suburbs. DFAT assessed the risk of violence outside the Jabal Mohsen and Bab al-Tabbaneh neighbourhoods as lower and more easily avoided.

    [4] accessed 6 January 2016

    [5] DFAT Thematic Information Report - Sectarian Violence in Lebanon, Department of Foreign Affairs and Trade, 18 December 2013, CIS26835 at 4.5 -4.11

22. In response to the country information, the parties all denied that the visa applicant’s home area had been affected by the violence occurring in other parts of Tripoli or the influx of Syrian refugees. They denied that the visa applicant had been affected by the increase in unemployment and generally poor economic situation in Tripoli, noting that the visa applicant had stable, long-term employment and was in receipt of additional financial support from his relatives in Australia.

23. The Tribunal also put to the review applicant and the visa applicant that the visa applicant’s age, skills in a trade that was in demand in Australia and strong family connections in Australia may also provide him with incentives to remain in Australia beyond the period of a visit. Both the visa applicant and the review applicant denied that the visa applicant would seek to remain in Australia, claiming that the presence of his wife and daughters in Lebanon provided him with a strong incentive to return.

24. The Tribunal finds that there are significant “push” and “pull” factors arising in this case, suggesting that the visa applicant may seek to remain in Australia beyond a stay permitted by a visitor visa.

25. The presence of all of the visa applicant’s siblings, one of his children, a grandchild and his elderly mother in Australia, together with his work experience and skills, suggest that the visa applicant would have little difficulty establishing himself in the Australian community. The visa applicant is already assisted financially by his mother and siblings in Australia and his mother’s health situation is such that there is no immediate prospect of her being able to travel to Lebanon to spend time with him.

26. There is a volatile security situation in the city in which the visa applicant resides even if his own suburb is not generally the focal point sectarian violence. The Tribunal finds that the general security and economic situation has deteriorated since the visa applicant’s last visit to Australia with the advent of the conflict in Syria and influx of Syrian refugees to the North governorate.

27. Against these factors, is the fact that the visa applicant has previously visited Australia and appears to have complied with his visa conditions. The visa applicant’s family generally has a good immigration history and there is nothing in their circumstances to suggest that the visa applicant would have any specific reason for not wanting to return to Lebanon. The Tribunal has placed significant weight on the evidence that Mr Akkawi took his young family to Lebanon and stayed with the visa applicant for three weeks in August 2014, suggesting that he considered the security situation to be reasonably safe at that time.

28. The Tribunal has also placed some weight on the fact that the visa applicant has two married daughters and grandchildren remaining in Lebanon. The Tribunal has placed relatively less weight on the presence of his wife and youngest daughter in Lebanon as the Tribunal considers that, if successful in obtaining a permanent visa in Australia, the visa applicant would have little difficulty reuniting with them in this country.

29. The Tribunal has also taken into account the fact that the visa applicant’s mother and siblings have resided in Australia for some 30 years and there is no evidence before the Tribunal to indicate that the visa applicant has previously applied to migrate to Australia himself although he has now on three occasions applied to visit.

30. Lebanon is a country that has been beset by sectarian violence and an unstable security situation for decades, including at the time of the visa applicant’s last visit to Australia. Despite these circumstances, the visa applicant complied with his previous Australian visa and returned to Lebanon. The visa applicant has specific reasons for wishing to visit Australia again at the present time, including the imminent arrival of a grandchild and his mother’s ill health.

31. The Tribunal has placed weight on its perception that the parties were generally credible and provided truthful evidence at the Tribunal hearing. The review applicant’s willingness to pay a substantial bond to secure the visa applicant’s compliance with his visa conditions also weighs in the visa applicant’s favour.

32. Whilst the Tribunal’s decision in this case is finely balanced, after careful consideration, the Tribunal is satisfied that at the time of this decision 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

33. 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