Al Kantar (Migration)

[2024] AATA 2404

Al Kantar (Migration) [2024] AATA 2404 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Merheb Al Kantar

VISA APPLICANTS:  Mr Ghazwan El Kantar
Mrs Mouna Abdo

CASE NUMBER:  2306741

HOME AFFAIRS REFERENCE(S):          BCC2023/2655930

MEMBER:Paul Windsor

DATE:20 June 2024

PLACE OF DECISION:  Melbourne

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 20 June 2024 at 8:14 am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting children and grandchildren – genuine temporary entrants and compliance with conditions – incentives to depart or remain – previous compliant travel to Australia and another country – self-employment, assets, funds and two adult children in home country, and four adult children in Australia – country information – political, economic and security conditions – applicants live with or near remaining children in relatively secure area – difficulty and expense for Australian family members to travel – intention not to jeopardise future visits – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 11 May 2023 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 4 May 2023. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the 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 (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.

4. The delegate refused to grant the visas on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied they genuinely intend to stay temporarily in Australia. The delegate indicated they gave consideration to the fact the visa applicants have travelled to Australia previously and their personal circumstances in Lebanon, including that they have 2 adult children, that Mr El Kantar claims to be a self-employed taxi driver and that they had provided evidence of personal funds and ownership of assets. However, the delegate did not consider these factors provided a strong incentive for the visa applicants to return to Lebanon.

5. The delegate noted the visa applicants have strong personal ties to Australia in that they have 4 adults children living here. The delegate also indicated they considered that Lebanon has been undergoing an economic crisis since mid to late 2019. The delegate commented that the economic situation and outlook remain negative, inhibited by volatile geopolitics and regional security conditions. The delegate found these circumstances are of such a nature that they would encourage the applicants to remain in Australia beyond the validity of any visa if granted.

6. The review applicant sought review of these decisions on 15 May 2023. He provided the Tribunal with a copy of the delegate’s decision records.

7. The review applicant appeared before the Tribunal via video conference on 19 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants, Mr Gazwan El Kantar and Mrs Mouna Abdo, in Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicants seek the visas for the purposes of visiting their children and grandchildren in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

11. 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)).

12. The information before the Tribunal indicates that both visa applicants were granted Visitor visas and visited Australia on two previous occasions. Mr El Kantor visited in 2008 and 2013 and Mrs Abdo visited in 2010 and 2016, for three months on each occasion. There is nothing to indicate or suggest that they did not comply with the conditions of their visas. Their only other overseas travel was to Saudi Arabia to undertake the Haj pilgrimage.

13. The Tribunal must also consider whether the visa applicants intend 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 these cases 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.

14. The evidence before the Tribunal indicates that the visa applicants are the 64 year old father and 60 year old mother of the review applicant. They have 6 children, 5 sons aged 30, 34, 36, 38 and 40 years and a daughter aged 32 years. They live with their 30 year old son, his wife and young son in their own home in Mechmech, a town in the Akkar Governate in northern Lebanon (their son and his family live on the upper floor of their residence). Their daughter, who is married and has two children, lives with her husband nearby. Four of their sons, including the review applicant, live in Australia.

15. The review applicant’s father submitted documents in support of his claim to be a self-employed taxi driver in Lebanon. At the hearing he indicated he still drives his taxi. He indicates he has a block of land and a garden in front of his house where he grows apples and vegetables such as cucumber, zucchini, tomatoes and beans.

16. The review applicant, who is 40 years of age, came to Australia in February 2005 on a subclass 300 Prospective marriage visa, after visiting in 2004. He was granted a permanent Partner visa in July 2011 and is now an Australian citizen. At the hearing he indicated he is married, has three children and works as an uber driver. Bank statements were submitted indicating that one of his brothers in Australia has a successful painting and tiling business. He indicated his siblings in Australia also have spouses and children or are soon to have a child (a total of 9 children and, in one case, a child on the way). When asked about how his siblings came to Australia, the review applicant indicated they all came through regular migration channels, sponsored by partners or prospective partners.

17. The Tribunal observed that the decision maker appeared to be concerned that the review applicant’s parents had stronger family ties to Australia than to Lebanon. The review applicant’s father responded that he wishes to visit his children and grandchildren in Australia, as he has done previously, and he had not breached his visas conditions in the past. He said he then wants to return to his son and daughter and their families as well as his home and his land.

18. When asked if he has returned to Lebanon in recent times, the review applicant said has returned there once, in October 2016, when his sister got married.

19. Noting the visa applicants are 64 and 60 years old, the Tribunal is satisfied that, if granted visas for the proposed three month stay, they would not work in Australia in breach of condition 8101 or undertake study or training for more than 3 months in beach of condition 8201. The Tribunal notes that condition 8503 is a bar on making further substantive visa applications while in Australia (other than for a Protection visa) rather than a condition that can be breached. The Tribunal considers that the key issue in this matter is whether the visa applicants would depart Australia within the period of stay authorised by their visas, if granted, or would seek to remain in Australia beyond that time or permanently, in breach of condition 8531.

20. In considering whether the applicants would breach condition 8531, the Tribunal has considered other relevant matters (cl 600.211(c)). In this regard, the Tribunal shared with the review and visa applicants excerpts from the current Department of Foreign Affairs and Trade (DFAT) Country Information Report on Lebanon.[1] The Tribunal observed that the report indicates that Lebanon’s recent history has been characterised by instability and economic and political crises. Among other matters, the report comments that:

    ·Frustration with tax increases, corruption and sectarian rule led to mass protests in 2019.

    ·The civil war in neighbouring Syria that commenced in 2011 drove 1.5 million refugees into Lebanon, which Lebanon has struggled to absorb.

    ·Mass protests broke out following a large-scale chemical explosion in August 2020 which destroyed the Port of Beirut, leaving two-hundred and twenty people dead and more than 6,500 injured, which many Lebanese blamed on political dysfunction.

    ·In October 2022, President Michael Aoun left office at the end of his presidential term and since that time the country’s parliamentarians, divided along sectarian lines, have failed to elect Aoun's successor, despite 10 rounds of voting.

    ·Lebanon is experiencing severe economic depression with a sharp fall in GDP, a severe devaluation in the currency, devaluation of savings, very high inflation, increased poverty rates, unpredictable supply of basic goods, a sharp rise in unemployment and increasing competition for available work between Lebanese and Syrian refugees.

    ·Lebanon’s security situation is uncertain, including due to conflict in neighbouring Syria and tensions between Hezbollah (which is part of the Lebanese Government) and Israel.

    [1] DFAT Country Information Report, Lebanon, 26 June 2023, sections 2.2-2.12, 2.27 and 2.31.

21. DFAT comments that in-country sources told it that the blast at the Port of Beirut and its consequences had been the ‘last straw’ for many Lebanese already dealing with widespread corruption and an economic crisis, causing them to lose hope of prospects for reform and increasing their appetite for migration.

22. The Tribunal observed that, more recently, tensions between Hezbollah and Israel have increased due to the intervention of Hezbollah in the Israeli-Hamas conflict.[2] The Tribunal commented that the current political, economic and security circumstances in Lebanon may provide a reason for some Lebanese not wishing to return there.

    [2] ‘Hezbollah and the Israel-Hamas War: Repercussions for Lebanon’, Sada, 16 November 2023, Hezbollah and the Israel-Hamas War: Repercussions for Lebanon - Carnegie Endowment for International Peace

23. The review applicant’s father commented that they in north Lebanon, far from Beirut, and are not involved in the political issues there, so are not affected by the problems in the south. He reiterated that he works as a taxi driver as well as on his land. He commented that they are doing okay, adding that there have always been problems in Lebanon but they are away from the problems.

24. The review applicant endorsed his father’s comment that Lebanese have had to deal with problems in their country, including with the government, for a long time. He said his parents just want to come and visit to see their four sons in Australia and their grandchildren. He added that it is very difficult and expensive for him and his family members in Australia to travel to Lebanon to see his parents, because of their work commitments and large families.

25. The review applicant’s mother reiterated that they live in Mechmech in north Lebanon, far from Beirut and the south. She said her husband earns money from driving his taxi, she works their land, and her husband helps her when he is not driving his taxi. She said they do not keep their money in a bank. She indicated they just wish to visit their children and grandchildren in Australia and will return to Lebanon.

26. While the visa applicants have four of their six children living in Australia, the Tribunal finds they retain strong ties to Lebanon where they live with one of their sons and his family and their daughter and her family live nearby. The Tribunal also finds that their property holdings provide an incentive for them to return to Lebanon. The Tribunal notes and gives considerable weight to the fact that both visa applicants have travelled to Australia on two previous occasions and complied with the conditions of their visas. The Tribunal also gives weight to the fact that their children came to Australia through regular migration channels. The Tribunal considers that their not wishing to create problems for other family members who may wish to visit Australia in the future provides an added incentive for the visa applicants to comply with the conditions of Visitor visas, if granted. The Tribunal also considers that the visa applicants, who live in Akkar Governate in northern Lebanon, where they have their own residence and a block of land, are less affected by the current political, economic and security circumstances in Lebanon than many other Lebanese.

27. Considering the available evidence and notwithstanding the difficult political, economic and security situation in Lebanon currently, the Tribunal finds that the visa applicants have significant personal and economic ties to Lebanon and is satisfied they will depart Australia prior to the expiry of their visas.

28. 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.

    DECISION

29. 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.

    Paul Windsor
    Member