1511899 (Migration)

[2016] AATA 3356

1511899 (Migration) [2016] AATA 3356 (26 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rachad El-Zein

VISA APPLICANT:  Ms Iezaz Sankari

CASE NUMBER:  1511899

DIBP REFERENCE(S):  BCC2015/2260133

MEMBER:Brook Hely

DATE:26 February 2016

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 26 February 2016 at 11:06am

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 25 August 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 6 August 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 intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 12 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone in Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   OVERVIEW OF THE VISA APPLICATION

8. The visa applicant is a 46 year old citizen of Lebanon, where she currently lives. It was claimed in the application that the visa applicant wished to visit Australia for approximately three months in order to visiting family. Included as part of the application were the following relevant documents:

   a.Bank savings document

   b.Passports of the visa applicant and review applicant

   c.Family Register document

   d.Statutory declaration of support from the review applicant

   e.Bank statement of the review applicant.

9. At the Tribunal hearing, the review applicant gave oral evidence to the effect that the review applicant has six children, of which five are living in Australia. The visa applicant has divorced from her previous husband and she does not work. However, she owns her own home and receives income from a shop which she owns and leases. He noted that the visa applicant had previously travelled to Australia in 2013 and complied with all conditions of her visa. He also gave evidence that, if he and his siblings wished to bring their mother (the visa applicant) out to Australia on a longer term or permanent basis, they would be able to do so through a Contributory Parent visa. Similarly, the review applicant’s agent submitted that the visa applicant would have no difficulty meeting all of the criteria for this type of visa. The review applicant explained that they had not pursued this migration pathway as the visa applicant has no interest in living in Australia and only wishes to visit for short periods to see her children and grandchildren.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting her son (the review applicant). This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. 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)). The Tribunal accepts from Department movement records that the visa applicant’s last substantive visa was a subclass 600 visitor visa. The Tribunal also accepts from movement records that she departed Australia within the permitted period. There is also nothing from Department records to raise any concern with respect to her compliance with the conditions of that visa.

13. 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.

14. The visa applicant’s compliance with these conditions is discussed below.

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)), which is also discussed below.

16. The Tribunal acknowledges the concern of the delegate that advice from the Department of Foreign Affairs and Trade (DFAT) indicates that northern Lebanon (where the visa applicant resides) is ‘currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and ongoing violence due to the ongoing civil war in Syria’. The Tribunal also acknowledges the concern of the delegate that this security situation has deteriorated significantly since the time of the visa applicant’s previous visit to Australia in 2013. The Tribunal also acknowledges that the visa applicant currently has limited ties to Lebanon, with only one of her six children still living in that country and the remainder now living in Australia. The visa applicant also has limited business or employment ties to Lebanon, given that she is not working and her leasehold income could presumably continue regardless of whether she were living in Australia or Lebanon.

17. Conversely, however, the Tribunal had the opportunity at the hearing to question the review applicant at length in relation to various aspects of the application. The Tribunal found the review applicant to be a credible witness. Whilst more difficult to assess the credibility of the visa applicant via telephone, the Tribunal notes that her evidence regarding her current living situation was generally consistent with the evidence given by the review applicant.

18. The Tribunal has also placed weight on the review applicant’s claim that, should the visa applicant wished to migrate to Australia, there is an alternate visa pathway available to her via a Contributory Parent visa. It is beyond the scope of this review to fully assess the visa applicant’s capacity to meet the criteria for such a visa. However, the Tribunal acknowledges that the review applicant’s agent has provided a useful submission and copies of relevant documents which, on their face at least, indicate that the visa applicant could meet the requirements of this visa.

19. The Tribunal has also placed weight on the visa applicant’s positive migration history. Notwithstanding the delegate’s concern that the security situation in northern Lebanon has deteriorated since the visa applicant’s visit 2013, the Tribunal also considers that the security situation remained sufficiently unstable and unpredictable at that time as to provide a significant motivating factor for her to seek to remain in Australia. For example, the most recent DFAT Country Report for Lebanon (December 2015), notes that the tensions and conflict in Syria have increasingly affected Lebanon since as early as 2011.[1] And, that Report also states (at [2.38]) (emphasis added):

    Since the previous DFAT Country Information Report on Lebanon dated 25 February 2014 and DFAT Thematic Report on Sectarian Violence in Lebanon dated 18 December 2013, incidents of violence influenced by long-standing sectarian tensions have decreased, ostensibly in response to successful interventions by the Lebanese authorities and cooperation between traditionally opposing actors...

    [1] DFAT Country Information Report, Lebanon, 18 December 2015 at [2.8].

20. Additionally, the Tribunal accepts the evidence before it that the visa applicant is a Sunni Muslin. In addition to the oral evidence on this issue at the hearing, the Tribunal notes that this is her religion recorded on her Family Register. The above DFAT Report notes that Sunnis living in Tripoli face only a low risk of violence in connection with their religion unless living in the suburb of Bab al-Tabbeneh (which the Tribunal accepts is not where the visa applicant lives).[2]

    [2] DFAT Country Information Report, Lebanon, 18 December 2015  at [3.20]-[3.23].

21. The Tribunal has had regard to the decision in Khanam v Minister for Immigration & Citizenship [2009] FCA 966 to the effect that the Tribunal must consider the particular circumstances of the applicant rather than make broad assumptions based on information regarding person of the same nationality or social group. The Tribunal acknowledges the general instability and risk of violence in northern Lebanon. The Tribunal also acknowledges that the most recent modified non-return rate data (current to 30 June 2013) records citizens of Lebanon as having a comparatively high rate of non-return when travelling to Australia on visitor visas. Nevertheless, mindful of the principles set out in Khanam’s case, the Tribunal accepts that the visa applicant has not personally experienced any significant problems and is not of a class of persons at particular risk at this time. In combination with the other positive factors to this application, the Tribunal is prepared to give the visa applicant the benefit of the doubt in accepting that her purpose in travelling to Australia on a visitor visa is not to pursue an onshore protection visa application but simply to visit her children and grandchildren and then return home.

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.

    Brook Hely
    Member