1921415 (Migration)

[2021] AATA 4266

1921415 (Migration) [2021] AATA 4266 (29 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921415

MEMBER:Angela Cranston

DATE:29 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 29 August 2021 at 11:05am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – intention to comply with visa conditions – significant push factor for external migration – economic crisis in Lebanon – family links in Australia – migration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211; Schedule 8, Conditions 8503, 8558

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 Home Affairs on 20 June 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The visa applicant applied for the visa on 10 June 2019. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3.    In his application, the applicant stated that he was born in [year], lived in [City 1] North Lebanon and was married with three children born between [year] and [year]. He also stated that he had a sister in Australia and was employed as a manager at a [specified] store since 2017.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

5.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 and the review applicant applied for review.

6.    The review applicant appeared before the Tribunal on 23 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7.    The review applicant stated that the Department had rejected the visa application because the applicant had previously been to Australia and contravened his visa, that is he had applied for a protection visa because he had been told that it was a way that he could lawfully remain in Australia. She stated he was now coming to Australia for a visit and would abide by conditions because the review applicant was going to sponsor him and he also was now married with 3 children. She also stated he was employed, had other relatives in Lebanon including his mother who lived with him as well as other siblings.

8.    The review applicant stated that in Australia, the applicant had two siblings including herself.

9.    When country information was put to her that stated that Lebanon's Prime Minister-designate had given up trying to form a new government , that Lebanon's severe economic depression had worsened and a currency collapse had caused inflation to skyrocket and left people unable to buy food, while supplies of fuel, electricity and medicine were running short, she agreed but stated that the applicant was going to return.

1. Movement records indicate the applicant arrived in Australia on a visitor visa in September 2004 and departed within the terms of that visa on December 2004. He again arrived in Australia in June 2006 and departed within the terms of his visa in December 2006. He again arrived in Australia in March 2009 on a visitor visa that ceased on 14 June 2009. He remained and applied for a protection visa and did not depart until February 2011. 

COUNTRY INFORMATION

1. According to BBC Lebanon crisis deepens as PM-designate quits over cabinet deadlock Lebanon crisis deepens as PM-designate quits over cabinet deadlock - BBC News accessed 10 August 2021:

Lebanon's Prime Minister-designate Saad Hariri has given up trying to form a new government after nine months of deadlock over its make-up, pushing the country deeper into crisis.
Mr Hariri said it was clear that he would not be able to agree on cabinet positions with President Michel Aoun.
The last government resigned in the wake of the massive explosion in Beirut in August that killed 200 people.
Since then, Lebanon's severe economic depression has got worse.
A currency collapse has caused inflation to skyrocket and left people unable to buy food, while supplies of fuel, electricity and medicine are running short.
The World Bank has blamed the situation on Lebanese politicians being unable to agree on a way forward.
Other countries have refused to provide billions dollars of aid until they form a new government that can implement reforms and tackle corruption.

1. 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 they wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the review 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.

Substantive issue

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 applicant seeks the visa for the purposes of visiting the review applicant, his sister. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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 600.611(3)):

   ·8101 – must not work in Australia

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

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

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

7. The Tribunal has considered the personal circumstances of the applicant who was born in [year] and lives in [City 1], North Lebanon.

8. The applicant currently has family in Lebanon including his wife, children and mother, and he is employed. The Tribunal is satisfied that the applicant has ties to Lebanon.

9. Although the applicant has his wife and three children and mother and siblings in Lebanon, he also has ties to Australia in that two of his siblings, including the review applicant are here.

10. In addition, when the applicant was previously in Australia on a tourist visa in 2009, he applied for a permanent protection visa and did not depart until 2011.

11. The Tribunal considers that the more recent events in Lebanon are a significant push factor for external migration and the applicant's family links in Australia constitute a strong incentive for him to remain in Australia. As stated, even though the applicant has family and employment in Lebanon, country reports suggest Lebanon is facing economic collapse. The Tribunal considers that the current turmoil in Lebanon is a significant push factor for external migration. Accordingly, despite the review applicant's protestations to the contrary, the Tribunal is not satisfied that if the applicant were to come to Australia then he would not seek to work and or remain.  Neither does the Tribunal consider any separation from his wife and children permanent if he should seek to change his visa status onshore and subsequently sponsor them.

12. In reaching this conclusion, the Tribunal has considered the fact that the applicant previously arrived in Australia on a three month tourist visa in 2009 and applied for a permanent protection visa before returning to Lebanon in 2011.

13. The Tribunal has some sympathy for the review applicant who clearly wants to see the applicant. However, 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.

Angela Cranston
Member