1901927 (Migration)

[2020] AATA 6118

1901927 (Migration) [2020] AATA 6118 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901927

MEMBER:Angela Cranston

DATE:17 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 17 December 2020 at 15.46pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – sponsored family visitor – family links to Australia – civil unrest in North Lebanon – genuine temporary stay criterion–decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 338, 347

Migration Regulations 1994, r 4.12, Schedule 2, cls 600.211, 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 10 December 2018 to refuse to grant the visa applicants visas under s.65 of the Migration Act 1958 (the Act). There are, however potentially two review applications to consider. These are discussed below.

2.    On 29 January 2019 the review applicant ([Ms A]’s sister) lodged an application for review form in relation to a visitor (tourist) visa refusal decision dated 18 January 2019 in relation to the first named applicant ([Ms A]) which also indicated her spouse (the second named applicant, [Mr B]) was a visa applicant.  She also provided a departmental decision dated 18 January 2019 relating to [Ms A]’s visitor tourist visa however there was no such decision provided in relation to [Mr B]. She also paid $1764.

3.    The Tribunal received a further application for review form from the review applicant on 15 February 2019 referring to a sponsored family stream visa refusal decision dated 10 December 2018 for [Ms A] which also indicated that her spouse [Mr B] was a visa applicant. She also provided a departmental decision dated 10 December 2018 relating to [Ms A]’s sponsored family visa application on 1 November 2018 and a departmental decision dated 10 December 2018 relating to [Mr B]’s sponsored family visa application also dated 1 November 2018.  

4.    In relation to [Ms A]’s visitor tourist visa application, the applicant said that she was born in [year], was married and living in Beirut, that she wanted to come to Australia for up to three months that in Australia were her sister and brother in law and parents and that she had been employed at [Company 1] since 1 November 2017.

5.    In relation to [Ms A]’s visitor tourist visa application, the Department said the following:

you are a [age]-year-old married Lebanese citizen residing in Lebanon. You requested a visa with your spouse to visit your parents and sister. You declared you have been employed at the [Company 1] group since November 2017 and you will be leaving behind no one.

I consider your personal circumstance that would encourage you to return home at the end of the proposed visit. I note that you intend to travel to Australia with your spouse. I further note that you have not declared any dependent family members remaining behind. Therefore, I give limited weight to your family ties as an incentive to return to Lebanon within the validity of your visa.

Departmental records indicate that your parents arrived in Australia on temporary visas and subsequently lodged applications for permanent change of status in 2014. In light of this I have concerns that you may also seek to remain in Australia indefinitely if the visa is granted.

You have an invitation letter from your family member in Australia and I have considered this information in the application. Generally offers of support or guarantees given by family and friends in Australia are not sufficient evidence of a genuine temporary stay. Therefore, I am placing little weight on this invitation letter to satisfy me that you intend to depart Australia within the validity of your visa.

Departmental records also show that you have travelled to Australia on one occasion and that you complied with the condition of that visa and departed on time. While I note your previous compliance with your visa conditions your current personal circumstances do not persuade me that you will comply with the visa conditions on this occasion.

6.    In relation to the sponsored family stream visas, [Ms A] repeated the same information as in her visitor (tourist visa application) and [Mr B] stated that he was born in [year], was married, lived in Beirut, that his father, mother and brother lived in Lebanon and that his in-laws were in Australia. He also stated that he had been the owner of [Company 2] for 2 years and 9 months.

7.    The delegate refused to grant the sponsored family visas in separate decisions, on the basis that the visa applicants did not meet cl.600.211.  In relation to [Ms A], the Department said the following:

The applicant has not indicated the presence of any family members in Lebanon that will induce her to return within the validity of her visa. I therefore place no weight on the applicant’s family as incentive to return and consider her family ties to Lebanon to be outweighed by the presence of parents and one sister in Australia. On balance therefore the applicant’s family ties are not sufficient to demonstrate that the applicant has the means and intention to return to Lebanon.

In response to the employment status of the applicant on form 1418, the applicant declared that she has been employed [at] [Company 1] group for one year. While I acknowledge that the applicant’s employment may provide some incentive to return, it is not sufficient to demonstrate that the applicant intends to depart Australia within the validity of their visa.

Recent reports from the Department of Foreign Affairs and Trade indicate that 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. While I accept that the applicant may not be directly affected by the civil unrest occurring in parts of Lebanon these reports indicate that the North of Lebanon is most affected. Given such information the civil unrest in North Lebanon at this stage may encourage the applicant to remain in Australia after the expiry of any visa should it be granted. I acknowledge the applicant has travelled and complied in 2017 however the applicant’s personal circumstances have changed since our previous travel.

I note the applicant’s family links to Australia and the circumstances surrounding their arrival and ongoing residence. On this basis I consider it necessary to apply a higher degree of scrutiny to your application including your personal circumstances that would encourage you to return to your home country and your personal circumstances in your home country or general conditions in your home country which would encourage you to stay in Australia.

After considering the information provided,I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

8.    In relation to [Mr B], the Department said the following:

I have noted that the applicant has indicated the presence of family members that will remain in Lebanon during their proposed visit to Australia, namely parents and one brother. While I acknowledge that these family members may offer some inducement to return to Lebanon, I am not satisfied that their presence sufficiently demonstrates that the applicant intends that a genuine temporary stay in Australia.

In response to the employment status of the applicant on form 1418 the applicant declared that he has been self-employed as owner at [Company 2]. While I acknowledge that the applicant’s employment may provide some incentive to return it is not sufficient to demonstrate that the applicant intends to depart Australia within the validity of their visa.

Recent reports from the Department of Foreign Affairs and Trade indicate that 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. While I accept that the applicant may not be directly affected by the civil unrest occurring in parts of Lebanon these reports indicate that the North of Lebanon is most affected. Given such information, the civil unrest in North Lebanon at this time may encourage the applicant to remain in Australia after the expiry of any visa should it be granted.

I note the applicant’s family links to Australia and the circumstances surrounding their arrival and ongoing residence. On this basis I consider it necessary to apply a high degree of scrutiny to your application including your personal circumstances that would encourage you to return to your home country and your personal circumstances in your home country or general conditions in your home country which would encourage you to stay in Australia.

After considering the information provided, I am not satisfied the applicant generally intends to stay temporarily in Australia for the purposes set out above.

9.   The review applicant also provided the following letter dated 26 January 2019:

I am writing to the Tribunal hoping that the registrar will consider the review as soon as possible because I strongly believe that my daughter [Ms A] came to Australia before and enjoyed a wonderful holiday. We took her to beautiful places and she returned back [in] June 2017. She spent less than one month in Australia and it was great to have her here with us. I want my son-in-law also to enjoy a good holiday with his wife and my daughter [applied] for another visa which was refused on 10 December 2018. I became aware that the review will take a long time. Then my daughter applied again and the application was refused on 18 January 2019.

The main issue is that the department said that I personally came to Australia and applied for permanent change of status in 2014. I agree that I applied for refugee because I am a Jehovah’s witness and the Department accepted my evidence as credible and recognised me as refugee.

This time the decision-maker failed to grant the visitor visa even though the officer had evidence that my daughter honoured her visa conditions. I confirm that the department misunderstood that my daughter and her husband are well committed in Lebanon and there is no way that they will apply to change their status because my daughter [Ms A] and her husband [Mr B] do not have any religious or political commitments. Both are working and my daughter provided to better job with better payments and I think the officer failed to look at the evidence provided.

My son-in-law [Mr B] is committed to his work and his family and this is strong evidence that when he comes to Australia he will return to Lebanon to his job and his family. It is unreasonable that the department failed to approve the visitor visa. My daughter and her family live in Beirut and not in Tripoli. If the situation is bad in North Lebanon that should not affect our request for visitor visa because they reside in Beirut. They have a well-established job, excellent income and savings and there is no adverse information to stop the grant of a visitor visa. I attach a letter from Archbishop [and] a letter from my son-in-law in support of the application.

1. Also enclosed was a letter stating it was from Archbishop [stating] that [Mr B] was the breadwinner of his parents, and another letter from [Mr B] stating that in his absence while on holiday, he would hand over his clients to the engineer [who] he could depend upon in the short period.

2. The review applicant appeared before the Tribunal on 10 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese), Arabic and English languages.

3. The review applicant indicated that it was her intention for [Ms A] and [Mr B]’s sponsored family visitor visa application decisions to be reviewed.

4. In response to the department’s decision about the sponsored family visitor visa refusals, the review applicant stated she and her parents were in Australia however [Ms A] was married and as [Mr B]’s wife, needed to be with [Mr B] and reside in the country where he lived.  She also stated that [Ms A] had worked since 1 November 2016 for her current employer [Company 1] Group and had always been working. She was not sure why the Department only thought that [Ms A] had been working for one year. When the Tribunal put to her that the department had said that North Lebanon was experiencing ongoing political and sectarian tensions she stated instability was everywhere around the world and not just in Lebanon. She also stated instability in Lebanon had been going on for a very long time and [Ms A]’s life was in Lebanon. The Tribunal talked about [Ms A]’s parent’s protection visa application in Australia and the review applicant stated their circumstances were not similar to [Ms A]’s because [Ms A] was Catholic Christian and not Jehovah witness. The Tribunal also talked about the department’s decision in relation to [Mr B] where it had referred to his self- employment and his family members, namely his parents and one brother. The review applicant stated [Mr B] was still running his own business and stated that in Australia, he had no one but in Lebanon he had his parents and brother who he supported financially. He also looked after his sick mother who had kidney problems. The review applicant stated that [Ms A] had aunties and in-laws in Lebanon. The review applicant also stated that [Ms A] and [Mr B] owned their own home in Beirut which they were still repaying and were not allowed to lease to a third party.

5. The Tribunal put to the review applicant that the situation in Lebanon was difficult and that the Department of Foreign Affairs and Trade had said that the limited economic opportunities plus the influx of Syrians were reasons why people were leaving. The Tribunal also said that country reports indicated that Lebanon was on the verge of a humanitarian crisis. Country Reports also said that in 2019 the country’s economic collapse had thrown hundreds of thousands into poverty and since then there had been COVID and in August 2020 one of the largest non-nuclear explosions in history which had caused havoc in Beirut. The review applicant indicated that the applicants would still return to Lebanon because they had established lives in Lebanon which they would not leave.

6. The Tribunal talked about a bond in relation to the sponsored visitor visa and the review applicant stated she was prepared to provide up to 1$0,000. She also stated that [Ms A] had entered and departed Australia previously.

7. The Tribunal then talked about [Ms A]’s tourist visa and stated that there was no facility to provide a bond.

8. The Tribunal then spoke to [Ms A] who said she would return to Lebanon after any visit because [Mr B] had his own business and she had a job. She also stated [Mr B]’s parents were ill and had medical issues (his mother had kidney problems and his father had eye problems) and [Mr B] supported them financially and emotionally. She also stated they had a stable life in Lebanon and had their work. When asked what it was like living in Beirut she stated it was similar to other places with Covid. When asked about the explosion in August she stated they had not been personally affected.

Country Information

1. According to DFAT Country Information Report Lebanon dated 19 March 2019:DFAT assesses that limited economic opportunity, exacerbated by the influx of displaced Syrians, is a push factor for external migration.

2. According to an article in Aljazeera, To Rebuild Lebanon and its economy, uproot corruption, 2 September 2020 accessed 17 September 2020:

   On August 4, one of the largest non-nuclear explosions in history wreaked havoc in Beirut. Nearly 200 lives were lost, and more than 6000 people were injured. An estimated 300,000 people were instantly left homeless.

   The blast obliterated homes, schools, medical facilities and the port of Beirut, which supplies nearly 85% of the country's food. Humanitarian relief efforts are already underway, but the longer term reconstruction will take years. For Lebanon to truly recover, the country and its international partners will need to address something more insidious than the blast: corruption.

   Lebanon was already on the verge of humanitarian crisis. In 2019, the country's economic collapse threw hundreds of thousands into poverty and exacerbated an already spiking unemployment rate, especially among the youth. The COVID-19 pandemic and the subsequent lockdown further deepened the hardship, including for more than 1 million Syrian refugees… For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Initial issue

1. The Tribunal exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by telephone. The hearing was held during the Covid -19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

2. While the Tribunal spoke to the review applicant by telephone, the Tribunal's observations were that the review applicant was given ample opportunity to submit all the evidence that she wanted the Tribunal to consider. The Tribunal also spoke to [Ms A]. The Tribunal considers that in these circumstances, it has given the applicant a fair opportunity before and during the hearing to provide all the evidence and arguments and evidence that she wanted the Tribunal to consider.

Jurisdiction

1. On 29 January 2019 the review applicant lodged an application for review form in relation to a visitor (tourist) visa refusal decision dated 18 January 2019 in relation to [Ms A] which also indicated her spouse, [Mr B] was a visa applicant.  She also paid $1764. She also provided a departmental decision dated 18 January 2019 relating to [Ms A]’s visitor tourist visa however there was no such decision provided for [Mr B].

2. While the review application appears to be validly made, the Tribunal received a further application for review form from the review applicant on 15 February 2019 referring to the sponsored family stream visa refusal decision dated 10 December 2018 for [Ms A] which also indicated that her spouse [Mr B] was a visa applicant. She also provided a departmental decision dated 10 December 2018 relating to [Ms A]’s sponsored family visa application on 1 November 2018 and a departmental decision dated 10 December 2018 relating to [Mr B]’s sponsored family visa application also dated 1 November 2018.  

1. The Tribunal finds that once the review applicant was notified of the issue, the review applicant claimed she intended to lodge reviews for the delegate’s decision to refuse the visitor visas in the sponsored family stream. Accordingly, the Tribunal finds that the review applicant intended for a valid review application to be lodged for both [Ms A] and her husband [Mr B] and that the further application for review was lodged within the prescribed period (see regulation 347(1)(b)(ii). Given that the review applicant sponsored [Ms A] and [Mr B] for separate sponsored family visas that were rejected, then both decisions are reviewable under 338(5) and even though only one application fee was paid since Regulation 4.12 allows the review applicant to combine her application for review because the review applicant sponsored two members of the same family unit.

1. In the event that the Tribunal is wrong, then the Tribunal will review the review applicant’s earlier review lodgement of [Ms A]’s visitor (tourist) visa decision which is reviewable under 338(7) since [Ms A] intended to visit the review applicant, her sister, who is an Australian citizen, or an Australian permanent resident, and paid one application fee. However because that visa application was not and could not be combined with [Mr B]’s visa application then any visa refusal that is his cannot be combined at review.

Substantive issue

Sponsored visitor visa

1. 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.

2. In the present case, the visa applicants seek the visas for the purposes of visiting [Ms A]’s sister and her parents. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

3. 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)).

4. 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.

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

6. The Tribunal has considered the personal circumstances of the applicants who are married and live in Beruit. They are both employed and own their own home.  [Ms A] has extended family and [Mr B] has his parents who he states are ill and who he states are financially and emotionally dependent upon him. He also has a brother in Lebanon. The Tribunal is satisfied that the applicants have ties to Lebanon that would encourage them to return to Lebanon where they say, their life is well established.

7. Although the applicants have ties to Lebanon, [Ms A] has considerable personal ties to Australia in that her parents and only sibling are here. While the Tribunal acknowledges that there is no evidence to suggest that [Ms A] did not previously comply with her Australian tourist visa in 2017, the Tribunal considers that [Ms A]’s ties in Australia are a significant pull factor for both applicants to remain in Australia. While the Tribunal acknowledges that [Mr B] has his ill parents in Lebanon, he also has his brother who could administer care in his absence.

1. The Tribunal considers that the current situation in Lebanon and in Beirut in particular is a significant push factor for their external migration.

2. As stated, even though the applicants have family and employment in Lebanon, country reports suggest Lebanon is facing economic collapse exacerbated by the COVID 19 pandemic and now one of the largest non-nuclear explosions in history in Beirut. While it has been suggested that the applicants have not been directly affected by the explosion, the Tribunal considers that the turmoil in Beirut and Lebanon is a significant push factor for their external migration.

3. The above concerns mean that the Tribunal has significant concerns that the applicants will seek to remain in Australia with [Ms A]’s family and that they do not genuinely intend to stay temporarily in Australia and will either seek to work and/or remain in Australia even if a bond were to be imposed. While the review applicant has suggested the applicants will not attempt to change their status onshore, the Tribunal is not persuaded this is the case.

4. For the above reasons the Tribunal is not satisfied that the applicants genuinely intend 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.

[Ms A]’s visitor visa

1. 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.

2. 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)).

3. 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.600.611(3)):

   8101 – must not work in Australia

   8201 – must not engage in study or training in Australia for more than 3 months.

   Condition 8501 - adequate arrangements for health insurance, 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia and 8558 - cannot stay more than 12 months in any 18 month period may also be imposed.

4. In this case, the Tribunal considers condition 8503 and 8558 should be imposed.

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

6. The Tribunal has considered [Ms A]’s personal circumstances in Lebanon where she is married and lives in Beruit. She is employed and owns her own home.  She has extended family in Lebanon and has stated that her husband’s parents are ill and financially and emotionally dependent on him. The Tribunal is satisfied that [Ms A] has ties to Lebanon that would encourage her to return.

7. She also has considerable personal ties to Australia in that her parents and only sibling are here. While the Tribunal acknowledges that there is no evidence to suggest that [Ms A] did not previously comply with her Australian tourist visa in 2017, the Tribunal considers that her ties in Australia are a significant pull factor for her to remain in Australia. The Tribunal also considers that the current situation in Lebanon and in Beruit in particular is a significant push factor for external migration.

8. As stated, even though the applicant has family and employment in Lebanon, country reports suggest Lebanon is facing economic collapse exacerbated by the COVID 19 pandemic and now one of the largest non-nuclear explosions in history in Beirut. The Tribunal considers that the turmoil in Lebanon is a significant push factor for external migration. While the Tribunal has considered whether [Mr B]’s presence in Lebanon would provide a strong incentive for her to return, the Tribunal is not satisfied that any separation from [Mr B] would be permanent if she were to successfully change her status onshore, as her parents have done and subsequently sponsor him. In reaching this conclusion, the Tribunal acknowledges that [Mr B] has his ill parents in Lebanon, however he also has his brother who could administer care in his absence.

9. While the review applicant has suggested [Ms A] will not attempt to change her status onshore, the Tribunal is not persuaded this is the case.

1. The above concerns mean that the Tribunal has significant concerns that [Ms A] will seek to remain in Australia and that she does not genuinely intend to stay temporarily in Australia.

2. .For the above reasons the Tribunal is not satisfied that [Ms A] 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 applicants visitor (Class FA) visas.

Angela Cranston
Member