1515540 (Migration)

[2016] AATA 4203

1515540 (Migration) [2016] AATA 4203 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr FARIE ZABADI

VISA APPLICANT:  Mr ABDULLAH El ZEBDI

CASE NUMBER:  1515540

DIBP REFERENCE(S):  BCC2015/2768133

MEMBER:Rachel Homan

DATE:8 August 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 08 August 2016 at 10:33am

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 21 October 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 19 September 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). The delegate refused to grant the visa on the basis that the visa applicant did not meet 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

   Visa application

7. According to information provided in his visa application form, the visa applicant is a 22-year-old Palestinian born in El Minaa, North Lebanon. The visa applicant has never been married and resides in a household with his mother and father. The visa applicant stated that he had been employed as an electrical installations technician for the last six years.

8. The visa applicant has two married sisters also residing in Lebanon, one married sister in Saudi Arabia and seven siblings residing in Australia, including the review applicant. The visa applicant indicated that he wished to visit Australia for a period of up to 3 months in order to spend time with his brothers and sisters and their families and for tourism purposes.

9. Submitted with the visa application was a Form 1149 application for sponsorship completed by the review applicant. The review applicant indicated that he was self-employed as the manager of the Helen Family Group. Evidence of the review applicant’s Australian citizenship and his family’s home ownership and savings were submitted with the visa application.

10. Also submitted with the visa application were identity documents; a work attestation indicating that the visa applicant is employed and earning a monthly salary of US$1200; a statement of account from BLC bank; evidence of the visa applicant’s educational qualifications; and a copy of his travel document, which contains two visas for travel to China and a visa for travel to Thailand.

11. In refusing to grant the visa, the delegate expressed concern about the visa applicant’s capacity to take leave from his employment without receiving remuneration and declined to place weight on the evidence of the visa applicant’s savings, owing to several large deposits having recently been made. The delegate also noted that recent reports from the Department of Foreign Affairs and Trade indicated that North Lebanon was experiencing civil disruption including war, lawlessness and political upheaval.

    Review application

12. At the time he applied for review, the review applicant submitted to the Tribunal a copy of the delegate’s decision record. No additional evidence was submitted until the hearing, at which the review applicant submitted a written statement and evidence of the grant of visitor visas to several of his relatives.

13. According to his statement, the review applicant has been living in Australia for 15 years. The review applicant has a wife and five children, owns his own home and is the owner of two cafes. The review applicant stated that he has sponsored many family members, including his mother, to visit Australia many times. The review applicant claimed that he had always followed the rules and ensured that his family members returned to Lebanon on the correct date. The review applicant stated that he had sponsored his mother to visit Australia twice, most recently in 2011 and had also sponsored three of his siblings in 2006, 2007 and 2008. The review applicant stated that his brother also sponsored his mother to visit Australia in 2013 and 2015. The review applicant claimed that in sponsoring the visa applicant, he would ensure that he would only visit his family and return to Lebanon.

    Tribunal hearing – 3 August 2016

14. The Tribunal took evidence from the review applicant and the visa applicant by telephone from Lebanon. The oral evidence presented to the Tribunal was consistent with the documentary evidence.

15. The review applicant confirmed his family composition and gave evidence regarding the visa status of his siblings in Australia. The review applicant’s evidence indicated that his siblings had generally migrated to Australia as the holders of Partner visas, with the exception of a brother, Ahmed, who was the holder of a temporary business visa.

16. The review applicant told the Tribunal that the visa applicant had visited China twice with him and that they had also travelled together to Thailand for a holiday.

17. Both applicants told the Tribunal that the visa applicant was single, resided in Minaa with his parents and had been employed as an electrician for several years. The visa applicant confirmed that his monthly income was US$1200.

18. The Tribunal asked the review applicant about the bank statements submitted with visa application. The review applicant explained that the visa applicant is generally paid in cash but was expected to submit bank statements with the visa application. The review applicant told the Tribunal that their father had probably made the deposits shown on the bank statement. The review applicant told the Tribunal that his father owned a relatively prosperous cabinetmaking business employing staff. Both parties told the Tribunal that the visa applicant was planning to return to study later this year and planned to study towards a bachelor of accounting at university.

19. Both parties identified the visa applicant’s need to assist his ageing father and mother as an incentive for the visa applicant to return to Lebanon. The review applicant explained that although he also had sisters living in the same area, they were married and preoccupied with their children. His sisters and mother didn’t drive and so the visa applicant drove his parents to medical and other appointments.

20. The review applicant told the Tribunal that each of his siblings who had visited Australia as the holder of a visitor visa had complied with their visa conditions and returned to Lebanon at the end of their stay. The review applicant stated that his mother and siblings had all complied with their visa conditions. The review applicant told the Tribunal that he was willing to pay a substantial bond to secure his brother’s compliance with his visitor visa as he was confident that he would comply.

21. The Tribunal noted that the visa applicant was young, single, had a trade qualification which was in demand in Australia and had substantial family ties in this country. The Tribunal put to the review applicant that this suggested that he may have a strong incentive to remain in Australia beyond the period of a visit. The review applicant told the Tribunal that none of his other relatives had stayed one day longer than their visas permitted them to stay in Australia. The visa applicant had returned to Lebanon after travelling to China and Thailand. His other brothers who had visited Australia were also young and single at the time of their visits.

22. The Tribunal discussed with the review applicant the situation for Palestinians in Lebanon, noting that due to their lack of citizenship, Palestinians were sometimes disadvantaged including in the areas of employment and health. The review applicant responded that his father owns two warehouses and factories and owns a car and a house. Unlike Palestinians who live in an encampment, their family live in the middle of an expensive city. The family is relatively well off and their mother and her extended family are all Lebanese.

23. The Tribunal also discussed with the applicants country information from the Department of Foreign Affairs and Trade regarding the volatile security situation in North Lebanon. The review applicant gave evidence that his home city rarely sees violence. The city is not affected by the same issues as other parts of Tripoli and Northern Lebanon. Syrian refugees generally stayed in the rural areas. The review applicant told the Tribunal that he had returned to Lebanon in 2015 for 18 days with his wife and children and felt safe in doing so.

24. The visa applicant’s oral evidence was essentially consistent with the evidence given by the review applicant.

    Findings

25. As discussed with the review applicant at hearing, a number of circumstances suggest that the visa applicant may have strong incentives to remain in Australia beyond the period of a visit. The visa applicant is young, unmarried, has work experience in a trade which is relatively in demand in Australia and has strong family ties to Australia. As a Palestinian in Lebanon, the visa applicant lacks many of the rights accorded to Lebanese citizens. Security conditions in the visa applicant’s home region have also been deteriorating in recent years.

26. 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 3 August 2016

27. The DFAT Country Report Information Report for Lebanon, dated 25 February 2014, indicates that security in the city of Tripoli 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.

28. The visa applicant and review applicant have both given evidence that the part of Tripoli in which the visa applicant and his parents reside is relatively unaffected by the security situation affecting other parts of Northern Lebanon. The Tribunal accepts that the review applicant felt safe enough to return there with his five children in 2015. The evidence before the Tribunal indicates that the applicant’s mother also recently returned to Minaa after a visit to Australia. The visa applicant himself returned after recent trips to China and Vietnam. This travel history supports the claim that the visa applicant’s home area has been relatively unaffected by recent violence in the region.

29. The Tribunal is also prepared to accept that the visa applicant’s position as a Palestinian can be distinguished from that of other Palestinians residing in Lebanon on the basis of his mother’s Lebanese citizenship and his father’s business ownership.

30. The Tribunal accepts that the visa applicant is employed and lives in relatively affluent circumstances with his parents. The Tribunal is also prepared to accept that the visa applicant has some familial obligations towards his parents as the only son in the family remaining in Lebanon. The evidence before the Tribunal indicates that the visa applicant has made future plans to study in Lebanon following his visit to Australia.

31. Whilst the visa applicant has a large number of siblings who have migrated to Australia in recent years, the Department’s records show that each of his siblings who has travelled to Australia as the holder of a visitor visa, and his mother, have complied with the conditions attached to their visas.

32. The Tribunal accepts that the review applicant is willing and capable of paying a security bond to guarantee the visa applicant’s compliance with his visa conditions. Whilst the Tribunal is unable to discount the possibility that the visa applicant may seek to migrate to Australia at some future time, the immigration history of his relatives generally supports his claimed intention of visiting Australia temporarily at the present time.

33. The Tribunal accepts that there is a high non-return rate for visitors from Lebanon, however, the Tribunal is required to consider the individual circumstances of the applicant before it. The visa applicant’s family has a strong history of compliance with their visa conditions, some of them in circumstances not dissimilar to the visa applicant’s present circumstances. Whilst the present security situation is unfavourable, Lebanon is a country which has been beset by violence for decades. Despite having strong personal and economic incentives to remain in Australia, the Tribunal accepts that the presence of the visa applicant’s parents in Lebanon, and his established lifestyle there provide sufficient inducements for him to return to Lebanon at the end of his permitted stay.

34. Having weighed the evidence before it, 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

35. 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