1514768 (Migration)

[2016] AATA 3845

1514768 (Migration) [2016] AATA 3845 (30 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Omar Al Sahmarani

VISA APPLICANTS:  Mr Ahmad El Sahmarani
Mrs Fatme Al Sahmarani

CASE NUMBER:  1514768

DIBP REFERENCES:  BCC2015/2772484 & BCC2015/2773317

MEMBER:Deborah Morgan

DATE:30 April 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 30 April 2016 at 4:00pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 28 October 2015 (the delegate) to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. Mr Ahmad El Sahmarani and Mrs Fatme Al Sahmarani (collectively referred to as ‘the visa applicants’) applied for the visas on 22 September 2015. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the visa applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because in both cases, for the same reasons, the delegate was not satisfied that a genuine visit was intended. The delegate’s decisions referred to the Department of Foreign Affairs and Trade (DFAT) report with respect to country conditions in Lebanon, particularly North Lebanon because the visa applicants reside in Tripoli.

5. The review applicant appeared before the Tribunal by video link between Adelaide and Melbourne on 28 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants by telephone. 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. Mr Ahmad El Sahmarani (the first named visa applicant) is a male citizen of Lebanon aged 59 years. Evidence of the first named visa applicant’s employment with the Ministry of Communications since 1975 has been provided.

8. Mrs Fatme El Sahmarani (the second named visa applicant) is a female citizen of Lebanon aged 60 years. The second named visa applicant claims to be the owner of Sahmarani Kitchenware since December 2002.

9. The visa applicants reside in Tripoli, Lebanon.

10. The visa applicants submitted a translated Family Register document that states the visa applicants have seven children, the youngest of whom was born in 1995.

11. The visa applicants’ religion is stated as Sunnite.

12. The Tribunal is satisfied on the evidence that the visa applicants are married to each other and that the review applicant is their son.

13. The visa applicants intend to accompany each other on their proposed visit and seek Visitor visas for up to three months.

    Issue before the Tribunal

14. 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.

15. In the present case, the visa applicants seek the visas for the purposes of visiting the review applicant and his family in Melbourne. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

16. 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)).

17. The first named visa applicant has not previously entered Australia.

18. The second named visa applicant has previously visited Australia on two occasions under Visitor visas and on both she departed before her visas expired. She first visited Australia in April 2006 and departed more than one month before her visa ceased. The second named visa applicant last departed Australia on 20 March 2011, approximately one month before her visa was due to expire.  

19. There is no evidence of non-compliance by the second named visa applicant with conditions of her previously held visas.

    Intention to comply with visa conditions

20. 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.

21. The Tribunal received the oral evidence from the visa applicants separately.

22. In relation to the visa conditions listed above, the first named visa applicant told the Tribunal that the sole purpose of their visit to Australia is to spend time with their son, his wife and family. He would not work or study in Australia.  He has never considered applying to reside in Australia as a refugee and is very attached to Lebanon. He and his wife do not currently fear persecution and never have. The maximum period he and his wife would spend in Australia is two months because he has to return to his employment after that time. Their 20 year old university student son lives with them and they will need to return to him after two months.

23. The second named visa applicant told the Tribunal that she intends to have a rest when she visits Australia and she will not work. She said she is too old to consider study. The second named visa applicant said she had never discussed applying to stay in Australia as a refugee said that she and her husband will not stay longer than two months in Australia because that is the extent of her husband’s leave from his employment.

    Other relevant matters

24. The Tribunal has also considered all other relevant matters (cl.600.211(c)) relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

    The visa applicants’ family and previous entries to Australia

25. The Tribunal accepts that the visa applicants are married to each other and that review applicant is the visa applicants’ only child resident in Australia. Two of their sons presently reside in Germany and the remainder of their children and four grandchildren live in Tripoli.

26. The Tribunal is satisfied that the second named visa applicant has visited Australia twice previously and that there is no evidence of non-compliance by her. 

27. The review applicant told the Tribunal that his sister, Hanadi Al Sahmarani, and his brother Mohamad El Sahmarani have visited Australia and departed before their visas expired. Department's movements' data in their names show that Hanadi entered Australia under a Visitor visa  in 2004 and departed approximately two weeks before her visa expired while Mohamad entered Australia under a Working Holiday Subclass 417 visa in 2008 and departed three months later with nine months stay remaining on his visa.  There is no evidence of non-compliance by the review applicant’s siblings who have previously entered Australia. 

    Employment and financial circumstances

28. The Tribunal is satisfied on the evidence that the first named visa applicant is employed full-time and that he plans to retire before he turns 65. He gave oral evidence that after he completes work in the early afternoon he goes to his wife’s shop and assists her.

29. The Tribunal accepts that the first named visa applicant owns the land upon which the second named visa applicant conducts her kitchenware retail business. She is the sole proprietor of the business which she said is profitable, but less profitable than in the past. 

30. Documentary evidence in relation to a number of land holdings owned by the first named visa applicant has been submitted to the Tribunal. Oral evidence taken was that the first named visa applicant owns two residences and an olive grove. Wheat is also grown for their family’s use. The first named visa applicant uses contract labour to assist with olives. The visa applicants have a holiday house in a village in Akkar where the second named visa applicant’s mother lives.

31. The Tribunal is satisfied that by Lebanese standards the visa applicants have a comfortable life style and employ a housekeeper at their house in Tripoli.

    Religion

32. The Tribunal notes that the Family Register document states that the family are Sunnis.

33. Department of Foreign Affairs and Trade (DFAT) most recent report on Lebanon (18 December 2015) states that its North Governorate is majority Sunni and that Sunnis constitute approximately 27 per cent of Lebanon’s population.

    Living conditions and security issues in Tripoli

34. The Tribunal accepts that the visa applicants usually reside in Tripoli.

35. The Tribunal referred the visa applicants to DFAT’s current travel advice in relation to Lebanon (updated on 26 February 2016) that advises Australians to reconsider their travel to Lebanon overall owing to its unpredictable security situation. With respect to Tripoli, the advice is not to travel there owing to ongoing clashes between Lebanese security forces and militants in the region.

36. The visa applicants told the Tribunal that fighting has ceased and they have never felt threatened because they live far away from the areas where clashes have occurred.  Oral evidence was received that they reside in an elegant and quiet part of Tripoli.

37. The second named visa applicant said that although they enjoy peaceful lives currently, no-one knows when violence may next escalate.

38. The review applicant told the Tribunal that Australia cannot offer the visa applicants the lifestyle which they enjoy.

39. DFAT’s current report on Lebanon reports the following relevant matters:

    ·That Tripoli is the largest urban centre in the North Governorate and Lebanon’s second largest city.

    ·Tripoli is relatively poor with moderate crime rates, including theft, robbery, burglaries and violent crime.

    ·DFAT reports that Tripoli is enjoying increased stability due to a successful security plan implemented by the LAF and backed by the major political factions.

    ·Sectarian violence within Tripoli has historically been limited to the predominantly Alawite suburb of Jabal Mohsen and Sunni suburb of Bab al-Tabbeneh, with the meeting point of the two – Syria Street – a recurring flashpoint. The conflict in Syria has exacerbated the traditional hostility between the Alawite and Sunni communities, and resulted in regular rounds of sectarian violence between competing militias, most recently in 2013 and 2014.

    ·The Sunni community was targeted by a terrorist attack in Tripoli in August 2013 when two powerful car bombs exploded outside two mosques, killing at least 42 people and injuring hundreds of people. Residents blamed Syrian authorities and Hizballah.

    ·In April 2014, Lebanese authorities implemented a security plan in Tripoli which led to a notable reduction in the number of incidents between the Alawite and Sunni communities. DFAT contacts have noted that Tripoli is now broadly stable, though vulnerable to outbreaks of renewed violence.

    ·In January 2015, two suicide bombers linked to al-Nusra attacked a café in the predominantly Alawite suburb of Jabal Mohsen, killing nine people and injuring a further 35 people. Al-Nusra reportedly claimed that the attack was in response to the mistreatment of Sunnis in both Lebanon and Syria.

    ·Sectarian violence within Tripoli has been led, from the Sunni side, by a range of militia groups operating in the suburb of Bab al-Tabbeneh.

40. DFAT reports the further information that Lebanon’s stability is being constantly tested by the conflict in neighbouring Syria, including through the large influx of Syrian refugees, and the presence of extremist groups, such as Daesh and al-Nusra, with an intent to perpetrate violence in Lebanon and agitate the pre-existing sectarian tensions within Lebanon.

41. Overall, DFAT assesses that Daesh and al-Nusra currently have an increasing capacity and influence in Lebanon, and that civilians face a moderate risk of violence, depending on their location. For example, recent incidents of violence linked to Daesh or al-Nusra have targeted Alawite and Shi’a interests. DFAT assesses the potential for Daesh or al-Nusra to launch attacks in Sunni-dominated areas as unlikely. The current security situation in the North Governorate, Beka’a Governorate and Beirut Governorate is reported to be more uncertain.

    The review applicant’s financial circumstances

42. The Tribunal has noted that documentary evidence of savings was submitted to the Department and oral evidence was received that the review applicant and his wife each have savings exceeding $40,000. They own their house, value of which is around $600,000, with approximately $184,000 owing on the mortgage

    Conclusions

43. The Tribunal considers that the visa applicants gave their evidence in a truthful and considered manner and gives their oral evidence weight.

44. The Tribunal is satisfied that the visa applicants have a settled and comfortable lifestyle in Lebanon; that the first named visa applicant intends to continue working until he reaches retirement age (65) and that the second named visa applicant plans to continue her kitchenware retail business into the indefinite future.

45. The Tribunal considers that the fact that the visa applicants’ son resides in Australia may act as a disincentive for them to return to Lebanon, however, as their other six children live outside Australia, the Tribunal does not consider the review applicant’s residence here is a powerful incentive for the visa applicants to remain in Australia.

46. The Tribunal gives weight to the previous visits by the second named visa applicant to Australia and by two of the visa applicants’ children, none of whom appear to have breached visa conditions.

47. The Tribunal has given consideration to the visa applicants’ evidence in relation to their living conditions in Tripoli and to DFAT’s country information with respect to security issues in Tripoli as outlined above. The Tribunal has given particular consideration as to whether security issues in Lebanon would be a strong disincentive for them to return to Lebanon.

48. Given the visa applicants’ ages, their children and grandchildren in Lebanon, their combined assets, their employment, their settled and comfortable lifestyle and their plans for the future in Lebanon, the Tribunal is satisfied that the visa applicants intend a genuine visit of two months  to Australia and that at time of decision there is minimal risk that either of the visa applicants would breach any visa conditions to which a Subclass 600 visa is subject.

49. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted, and finds that the requirements of cl.600.211 are met.

    Imposition of Bond

50. To the extent that there is any concern about compliance by the visa applicants, the Tribunal considers that a delegate has the discretion to impose a bond and that such concerns could therefore be addressed.

    DECISION

51. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Deborah Morgan
    Member