1725655 (Migration)

[2018] AATA 3521

1725655 (Migration) [2018] AATA 3521 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725655

MEMBER:Frances Simmons

DATE:16 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 16 August 2018 at 11:02am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored family stream – Visit to help brother and sister -in-law care for her children – Incentives to remain in Australia – Instable political situation in Northern Lebanon – Brother sought protection in Australia – Decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.212, 600.231

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 October 2017 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 11 September 2017. 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 1 August 2018 to give evidence and present arguments. The Tribunal attempted to contact the visa applicant, who is currently resident in Syria, but was unable to do so. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Visa application and delegate’s decision

7. The visa applicant is a [age] old married woman from Tripoli in Lebanon. Her husband and  [children] reside in Lebanon. Her youngest child was born on [date]. She describes herself as a housewife.  She wants to travel to Australia for three months to visit her brother, the review applicant, and his family. She explains that she wants to assist her brother’s family as her sister-in-law is shortly due to give birth and she wants to help her care for her children. She states she has some savings and her brother is going to provide her with financial support. She provides documentation corroborating the information she has provided about her family composition and identity. She and her family are Alawites.

8. The delegate was not satisfied that the visa applicant met cl. 600.211.  The delegate referred to recent reports from the Department of Foreign Affairs and Trade (DFAT) that indicate North Lebanon is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and ongoing violence due to the ongoing civil war in Syria. The delegate accepted that the purpose of the visa applicant’s intended travel was to visit her family but found that this did not of itself demonstrate she only intended a genuine temporary visit. The delegate expressed concern that the visa applicant’s background as an Alawite might encourage her to remain in Australia after the expiry of any visitor visa.

   Evidence before the Tribunal

9. This is a summary of the evidence the review applicant provided to the Tribunal. The review applicant travelled to Australia holding a carer visa (he was a carer for his wife’s nephew) and acquired Australian citizenship in 2015. His wife, who was born in Syria, is also an Australian citizen and together they have [several] children, the youngest of whom is [an infant]. An aunt and brother also reside in Australia. The brother travelled to Australia in 2016 holding a visitor visa and then applied for, and was granted, a protection visa.[1]   

   [1] This is consistent with departmental movement records available to the Tribunal.

10. The review applicant told the Tribunal that the situation in Lebanon was bad when his brother travelled to Australia. His brother is an Alawite and he was targeted: his house and car was bombed and he showed the proof of this to the Department. He subsequently brought his wife and children to Australia. Asked whether his brother lived near his sister in Lebanon, he said his sister had two houses, one in Tripoli in Lebanon and one in Tartus in Syria. He gave evidence the house in Tartus was very safe despite the conflict in Syria. Asked to clarify where his sister is living now he said she is living in both Syria and Lebanon (it is a short drive between the two houses).

11. The review applicant confirmed his sister was a [age] old married woman from North Lebanon. At the time of the hearing she was residing in Tartus, Syria. He explained that she often moved between her residence in north Tripoli, where her husband works as [occupation deleted], and a residence in Tartus in Syria, where his parents live. Other than her travel to Syria, she has not travelled outside of Lebanon. His sister is married and has [several] children, three of whom are now adults. Her youngest child, who is [age], still attends school. He usually lives with the visa applicant but, at the time of the hearing, he was resident in Lebanon while the visa applicant was in Tartus, Syria. The visa applicant is of the Alawite faith.

12. The review applicant told the Tribunal his sister applied to visit Australia for three months because he has a sick child and his wife was pregnant at that time. His sister wants to visit his family and help his wife care for his [young] children, including a son who has medical issues and needs additional care.  He said his sister couldn’t come to Australia so he sent his wife and their children to Lebanon. His wife and children are now in Tartus in Syria with his sister. He told the Tribunal that if his sister was granted to a visitor visa she would travel to Australia in the company of his wife and children and remain in Australia for three months. He said his sister would go back.

13. The Tribunal asked what his wife and children would do after his sister departed Australia. The review applicant said his wife would have to manage: her baby would be a bit older, his son suffered from two conditions, but medical tests said one condition had been cured and this was good news. Later in the hearing, the review applicant told the Tribunal doctors had said that his son needed a carer and an application for a carer visa would probably be successful. He told the Tribunal that the applying for a carer visa was not as costly as applying for a visitor visa, particularly if he were required to pay a bond in relation to the visitor visa. He said that he would lose the bond if his sister did not comply with the conditions of her visitor visa. He stated that his sister did not want to remain in Australia because she has her own family; this is why they did not apply for a carer visa.

14. The review applicant gave evidence that he does not have concerns about returning to Lebanon and pointed to his record of frequent travel from Australia to Lebanon, mostly recently between December 2017 and January 2018. [2]  He noted his brother travelled to Australia in 2009 and complied with the conditions of his visitor visa; he told the Tribunal was his brother applied for a protection visa because of the targeted attack on his house and car.[3]  He told the Tribunal that his mother, who usually resides in Tartus Syria, travelled to Australia in 2011 and complied with the conditions of her visitor visa.[4]

    [2] This is consistent with departmental movement records available to the Tribunal.

    [3] This is consistent with departmental movement records available to the Tribunal.

    [4] This is consistent with departmental movement records available to the Tribunal.

15. The Tribunal attempted to contact the visa applicant by telephone three times (twice on a landline and once on a mobile number), but was unable to do so. A further attempt to contact to visa applicant later in the hearing was also unsuccessful. At that point the Tribunal indicated to the review applicant that it accepted that he had given a truthful account of where she was living, that the visa applicant would give evidence that was consistent with his evidence, and that she would inform the Tribunal that she would comply with the conditions of any visa that was granted to her. The review applicant did not identify he additional evidence the visa applicant could provide to the Tribunal.

16. The Tribunal discussed with the review applicant its concerns that, in light of country information about the situation in North Lebanon and in Syria, and his family’s recent immigration history, his sister might seek to remain in Australia beyond the period of permitted stay provided by any visitor visa that was granted to her. Where relevant this country information and the review applicant’s evidence is discussed further below.

    Issue on review

17. 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.

18. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother, the review applicant, and his family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

19. 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 visa applicant has not travelled to Australia before. There is no relevant record of compliance or non-compliance.

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 has also considered all other relevant matters (cl.600.211(c)).

22. As the Tribunal discussed with the review applicant, it holds concerns that having regard to the immigration history of the applicant’s brother (who travelled to Australia in 2016 holding a visitor visa and applied for a protection visa), the unpredictable security situation and ongoing sectarian violence in North Lebanon might encourage his sister to remain in Australia after the end of her permitted stay. As the Tribunal discussed with the review applicant, the security situation in North Lebanon has been volatile and remains unpredictable.[5] Furthermore, as discussed with the review applicant, his sister is an Alawite and DFAT assesses that Alawites currently face a low risk of violence or discrimination and that the situation within Tripoli is susceptible to escalation at short notice.[6]

    [5] "DFAT Country Information Report Lebanon", 23 October 2017, CISEDB50AD6014; "DFAT Country Information Report Lebanon", 23 October 2017, CISEDB50AD6014, p.14.

23. The Tribunal has considered the evidence that his sister is able to reside in Lebanon and Syria. The Tribunal was told the visa applicant is currently residing in Tartus, an Alawite dominated, government controlled area of Syria where her parents live. No evidence has been presented in relation to his sister’s right to reside in Syria and, even assuming such a right exists, the Tribunal does not accept that such a right would encourage the review applicant to depart Australia at the end of her permitted stay. DFAT Smart Traveller advice states the security situation in Syria is extremely dangerous.[7] While the situation in Tartus is comparatively less dangerous than other parts of Syria, the security situation resulting from the ongoing civil war in Syria is dangerous and volatile and all areas of the country have been affected to some extent.[8] Accordingly, as the Tribunal put to the review applicant, the Tribunal is concerned that the ongoing conflict in Syria might also encourage his sister to remain in Australia after the end of permitted stay.

    [7]

    [8] "DFAT Thematic Report on Conditions in Syria", 23 October 2017, CISEDB50AD6015, p.25 

24. The Tribunal accepts that the review applicant and his wife would benefit from the support of the visa applicant in caring for their children. The review applicant indicated his son suffers from medical conditions and that it had been suggested to him by doctors that his son needs a carer.  While the review applicant did not detail his son’s medical conditions, the Tribunal is willing to accept his evidence about this issue. The Tribunal accepts the review applicant’s evidence that his wife recently travelled to Lebanon and then onto Syria with their children so she can have the benefit of family support as she cares for [her] children. The Tribunal has sympathy for the difficult circumstances facing the review applicant and his family.

25. However, as discussed with the review applicant, it would appear that his family’s need for additional assistance caring for their children is not limited to a three month time period.  As the Tribunal put to the review applicant, and he conceded, it would be beneficial for him if his sister remained in Australia and assisted with the demands of caring for [the] children. The Tribunal notes that the review applicant indicated thought had been given to applying for a carer visa and he suggested such an application would probably be successful. The review applicant said this avenue was not pursued because his sister only wants to travel to Australia for three months and was not interested in applying for a carer visa because she has her own children.

26. The Tribunal accepts that the visa applicant’s family ties in Lebanon, including her husband and children [as] well as other extended family members, would provide some incentive for her to return to Lebanon. The Tribunal accepts that if it been able to contact the visa applicant she would have given evidence that was consistent with the evidence of the review applicant and that she would have stated that she would comply with the conditions of any visitor visa.  However, the Tribunal remains concerned that the incentives for the visa applicant to remain in Australia beyond the end of permitted stay outweigh the incentives for her to return to Lebanon.

27. The Tribunal is concerned that the security situation in Lebanon would encourage the visa applicant to remain in Australia beyond the period of permitted stay provided for by any visitor visa that was granted to her. The Tribunal acknowledges that two of the review applicant’s family members (his brother and mother) travelled to Australia in compliance with the conditions of her visitor visa in 2009 and 2011 and that the review applicant and his family members have travelled in and out of Lebanon. However, the Tribunal is concerned that when the review applicant’s brother returned to Australia in 2016 holding a visitor visa he then applied for a protection visa. While the Tribunal appreciates that the visa applicant’s circumstances may well be distinguishable from those of her brother (the review applicant said that his brother’s house and car were bombed), it is not in dispute the visa applicant is a woman of Alawite faith from Tripoli in Lebanon, where DFAT assesses Alawites face a low risk of violence and a volatile security situation is susceptible to escalation at short notice.  

28. Having considered the circumstances of the visa applicant and the country information about the treatment of Alawites and the ongoing sectarian violence in Tripoli, the Tribunal holds significant concerns that she may seek to remain in Australia after the end of her permitted stay. These concerns are deepened by the fact that her brother, who is also from Tripoli, recently travelled to Australia on a visitor visa and applied for a protection visa. The Tribunal notes that the review applicant also gave evidence that after his brother was granted a protection visa he sponsored his wife and children to migrate to Australia. While the Tribunal accepts that the visa applicant has significant family ties in Lebanon and that as well as [her] children in Lebanon, the Tribunal remains concerned that she would seek to remain in Australia after the end of her permitted stay.

29. Furthermore, the Tribunal considers that it would be of significant benefit to the review applicant if the visa applicant remained in Australia after the end of her permitted stay to provide ongoing support caring for his [young] children, one of whom has a medical condition. The Tribunal’s concerns that the visa applicant does not genuinely intend to stay temporarily for the purpose for which the visa are granted are not overcome by the review applicant’s assertions that he would not permit his sister to remain in Australia after the end of her permitted stay, that he does not wish to have poor immigration record, that he is prepared to pay a security bond, and that ‘even if Lebanon explodes’ his sister will return.

30. After considering all the evidence, the Tribunal remains concerned that, weighing up all relevant matters and having regard to the visa applicant’s personal circumstances and the country information, there are significant factors encouraging her to remain in Australia if she is granted a visitor visa, which outweigh the factors that might influence her to return. Accordingly, on the evidence before it, the Tribunal cannot be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa is granted, even if the Department were to impose a bond security, as offered by the review applicant.

31. Having considered the evidence before it, the Tribunal is not 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 not met.

    CONCLUSIONS

32. For the above reasons the Tribunal is not 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 not met.

    DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Frances Simmons
   Member