Al Kurdi (Migration)

[2019] AATA 252

Al Kurdi (Migration) [2019] AATA 252 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hafez Al Kurdi

VISA APPLICANT:  Mr Talal Al Kerdi

CASE NUMBER:  1717251

HOME AFFAIRS REFERENCE(S):           BCC2017/1959392

MEMBER:Paul Windsor

DATE:24 January 2019

PLACE OF DECISION:  Melbourne

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 24 January 2019 at 10:25am

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – genuine temporary entrant – sponsored family stream – trip to visit siblings – review applicant to fund trip – applicant well settled in Lebanon – security situation relatively stable – family’s immigration history – willing to offer security – decision remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), cls 600.211, 600.231, 600.612 Schedule 4 PIC 4011

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 29 June 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 1 June 2017. 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 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, after considering the visa applicant’s personal circumstances, commitments and incentive to return home (including family remaining in Lebanon and his course of study), as well as the current instability in Lebanon, the delegate was not satisfied that applicant genuinely intends to visit Australia temporarily.  In reaching this conclusion the delegate indicates that they were conscious of the visa applicant’s family links to Australia and the circumstances regarding their immigration history.  The delegate commented that, combined with the visa applicant’s limited ties to Lebanon they had serious concerns that the visa applicant may be induced to remain in Australia beyond the validity of their visa.

5. The review applicant appeared before the Tribunal on 22 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from the review applicant’s friend, Mr Salah Ah Abdo.  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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

9. 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)).

10. As the visa applicant has not held an Australian visa previously, this criterion is not relevant to his circumstances.

11. 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.

12. At the hearing the review applicant indicated that he came to Australia on a temporary Partner visa in 2005 and was granted a permanent Partner visa in 2008.  He indicated that he has two brothers and three sisters living in Melbourne and his parents, four brothers and a sister living in Lebanon.  When queried regarding the delegate’s comment that they were conscious of the visa applicant’s family links to Australia and the circumstances regarding their immigration history, the review applicant indicated that he had a brother who came to Australia on a Visitor visa, sponsored by his sister, who changed his status after arrival.  He explained that this brother had special circumstances that set him apart from other family members.  Based on the review applicant’s comments at the hearing the Tribunal accepts that this is the case and that his circumstances do not apply to the visa applicant.

13. The review applicant indicated that his brother wishes to come to Australia for a four week visit to see his brothers and sisters and his 22 nieces and nephews.  The review applicant said he would provide everything for his brother during his stay.  He indicated that it is proposed that his brother spend time staying with each of his brothers in Melbourne.  The Tribunal queried the review applicant that in the initial visa application it was indicated that his brother wished to come to Australia for three months.  The review applicant explained that at the time of the application his brother was studying to be an electrician and it was proposed that he visit Australia during his long summer study break.  His brother has now completed his course and is working as an electrician.  The review applicant said that last time they spoke his brother said he could come for four weeks due to his work commitments.

14. Noting the statement of 7 February 2017 by the visa applicant’s father at folio 33 of the Departmental file which, inter alia, states the visa applicant ‘is still under my care since he resumed his university studies’ and that ‘We applied for immigration to Australia more than a year ago’, the Tribunal asked the review applicant whether his brother was included in this application and what category of visa was sought.  He said it was a ‘worker’s visa’ and that his brother was included.  He indicated that the visa application had been refused.  The Tribunal notes that the delegate did not raise consideration of cl.600.213 relating to Public Interest Criteria in his decision record, but discussed with the review applicant that as this permanent visa application was made within 5 years before the Visitor visa application, the visa applicant is affected by a risk factor under Public Interest Criterion 4011 which requires that decision makers be satisfied that there is ‘very little likelihood that the applicant will remain’ after the expiry of any period of authorised stay in Australia.

15. The review applicant indicated that he is prepared to pay a security if that is necessary for his brother to be able to visit.  The Tribunal commented that the issue of a security was not raised in the delegate’s decision record and asked if this had been raised with him.  He indicated that it had not.

16. When the Tribunal spoke with the visa applicant he said he now wished to visit Australia after 10 February 2019, for four weeks, because he has work commitments.  He indicated that he is working as an electrician doing home electrical installation.  He said he commenced his own business in July 2018 and is seeking to secure a big, long term contract through ‘Work-Link’.

17. The visa applicant indicated that he is living with his parents.  He said his father is a businessman involved in the distribution of fruit and vegetables.  He said he is not married or engaged but has a good relationship with a girl he was introduced to in Lebanon and they may become engaged within the next five months or so.  He indicated that he has no assets under his name.

18. The Tribunal discussed with the review and visa applicants and has considered the following country information, drawn from the 2017 Department of Foreign Affairs and Trade (DFAT) Country Information Report on Lebanon and other sources as indicated, regarding the political, security and economic situation in Lebanon:[1]

    [1] DFAT Country Information report, Lebanon, 23 October 2017, sections 2.6, 2.15, 2.33-2.37 and 3.20-3.24.

    ·Since the conclusion of the civil war from the mid-1970s to late-1980s, violence between non-state actors has continued sporadically.

    ·Since 2011, the conflict in Syria has increasingly affected Lebanon, including through the presence of Lebanese nationals in Syria fighting on opposing sides and the significant influx of displaced Syrians into Lebanon. The activities in Lebanon of predominantly Sunni-linked extremist groups such as ISIL (Islamic State in Iraq and the Levant) and Jabhat Fatah al-Sham (formerly Jabhat al-Nusra) have added another layer of complexity to instability within Lebanon.

    ·Since late 2013, incidents of violence influenced by longstanding sectarian tensions have decreased, ostensibly in response to successful interventions by authorities and cooperation between traditionally opposing actors (including Hizballah, which has played a role in safeguarding some areas of Lebanon). Security plans implemented in a number of areas by the Lebanese Armed Forces and dialogue between the Sunni-dominated Future Movement and the Shi’a Hizballah have contributed to a more stable security situation in many areas.

    ·Despite this, the conflict in neighbouring Syria continues to challenge Lebanon’s stability. ISIL has a presence in Lebanon, and is intent on perpetrating violence and agitating pre-existing sectarian tensions within Lebanon. Although areas in Syria under ISIL control are diminishing, sporadic attacks by ISIL continue to occur in areas that border Syria. ISIL maintains a presence in and around Arsal and the mountainous region of Baalbek, although at the time of publication, military operations against ISIL were continuing. In-country contacts suggest that the Lebanese Armed Forces and Hizballah have been successful in subduing ISIL’s further attempts to carry out attacks in Lebanon. Hizballah has also successfully expelled militants from Jabhat Fatah al-Sham from an area near the border.

    ·Overall, DFAT assesses that the security situation in Lebanon remains largely stable, but unpredictable. Instability is greatest in areas where ISIL and Jabhat Fatah al-Sham are located, particularly around the north-eastern border, although local authorities largely contain these groups.

    ·Overall, DFAT considers that limited economic opportunity, exacerbated by the influx of displaced Syrians, is a push factor for external migration.

    ·The stability of Akkar Province in the North governorate is complicated by its extensive border with Syria, which is largely defined but poorly controlled and has long been a conduit for smuggling into Syria.

    ·In 2016 The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) stated that the conflict in neighbouring Syria has had a strong spillover effect on northern Lebanon, including Akkar[2] and the United Nations High Commissioner for Refugees (UNHCR) reported that as of 31 January 2018, there were 105,798 Syrian refugees residing in Akkar governorate who had registered with UNHCR.[3]

    ·In September 2017 a World Bank report regarding employment in Northern Lebanon (which includes Akkar and North governorates), found that 36 per cent of the population in this region are poor, compared to the national average of 27 per cent.[4]  In 2016, the OCHA reported that Northern Lebanon, which includes Akkar, is ‘one of the country’s most deprived regions, with severe poverty levels’ and ‘some of the worst unemployment rates in the country.  According to OCHA, out of a total population of 1.1 million people, 708,000 live under the poverty line: 341,000 deprived Lebanese, over 266,000 Syrian refugees, 88,000 Palestine refugees and almost 12,000 Lebanese returnees.[5]

    [2] ‘North and Akkar Governorate Profiles’, OCHA, 4 August 2016, CIS38A80128136 

    [3] ‘Syria refugee response’, UNHCR, 31 January 2018, CIS7B83941671 

    [4] ‘Jobs for North Lebanon’, The World Bank, September 2017, p.15, CISEDB50AD8328 

    [5] ‘North and Akkar Governorate Profiles’, OCHA, 4 August 2016, CIS38A80128136  

19. The review applicant indicated that he has been in Australia for the last 14 years and can’t comment on the country information as he only knows what he reads in the news.  The visa applicant said his situation in Lebanon is very good and he is not intending to stay in Australia after his four week visit.  He said he is happy in Lebanon and has money to live there and just wants to come to Australia for a holiday and to visit his brothers.  He commented that while there were some problems before the security situation is much better at the moment, they are living happily, and the refugees have started to return to Syria.

20. The review applicant’s friend clarified that the review applicant’s father made an application for an Investment visa to come to Australia permanently.  He said the Department had asked for additional information but the agent did not communicate this to the family but simply resubmitted information that had already been provided, and consequently the application was refused.  He reiterated that the visa applicant had initially sought a three month stay but this was at a time when he was still studying and could have an extended break during the summer vacation, but is now only seeking a stay of four weeks to fit in with his current work commitments. 

21. Considering all the evidence, including that provided by the review and visa applicant and the review applicant’s friend at the hearing, and noting DFAT’s assessment that the security situation in Lebanon remains largely stable and that the visa applicant has good employment in Lebanon, the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.

22. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  In this regard the Tribunal has taken into account the review applicant’s comments that he is willing to provide a security to ensure his brother abides by the visa conditions.  As noted at the hearing, the Tribunal has no power to request a security from the review applicant.  The Tribunal accepts, however, that the review applicant’s willingness to provide security is indicative of his commitment to ensuring his brother abides by any future visa conditions. 

23. For the above reasons 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.  In relation to cl.600.213 the Tribunal also considers there is very little likelihood that the applicant will remain after the expiry of any period of authorised stay in Australia.

    DECISION

24. 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.

    Paul Windsor
    Member