Al Sayed (Migration)

[2019] AATA 1913

Al Sayed (Migration) [2019] AATA 1913 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Issmate Al Sayed

VISA APPLICANT:  Miss Marwa Alsayed

CASE NUMBER:  1729561

HOME AFFAIRS REFERENCE(S):           BCC2017/3827172

MEMBER:Paul Windsor

DATE:1 April 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 01 April 2019 at 3:25pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuinely intends to stay temporarily in Australia – visa to visit sister – incentives to return home – study – marriage – family – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, 600.611, conditions 8101, 8201

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 23 October 2017 to refuse to grant the visa applicant, Miss Marwa Alsayed, a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 October 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 Tourist 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 noting that she is a young single woman student who had not declared any dependent family members remaining in Lebanon. The delegate found that the political and security situation in Lebanon would act as an incentive for the visa applicant to remain in Australia beyond the validity of any visa granted to her, noting that ‘Departmental information shows that it is not uncommon for Lebanese nationals to overstay their visa or change their status after their arrival in Australia’.

5. The review applicant, Ms Issmate Al Sayed, who is the half-sister of the visa applicant, appeared before the Tribunal on 1 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from the review applicant’s representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her half-sister in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).  As Miss Alsayed has never held an Australian visa, this criterion in not relevant in her case.

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.600.611(3)):

    ·8101 – must not work in Australia

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

12. Having taken evidence from both the review applicant and the visa applicant at the hearing, the Tribunal is satisfied that Miss Alsayed will comply with these conditions if granted the visa.  The Tribunal is satisfied with the evidence indicating that Miss Alsayed is studying in Lebanon and wishes to visit her sister in Australia during Ramadhan, which commences on 5 May 2019, but needs to be back in Lebanon later in June 2019 when she has her final exams.  The Tribunal is also satisfied with the evidence provided that Miss Alsayed is engaged to be married in August 2019 after which time it will be very difficult for her to travel to Australia.  The Tribunal finds there is nothing in the evidence to indicate or suggest that Miss Alsayed wishes to work or study in Australia in breach of conditions 8101 or 8201.

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  In this regard the Tribunal has given significant weight to the evidence provided by the Ms Al Sayed regarding the significance of her relationship with her half-sister because Ms Al Sayed had not lived with her mother after she was born because her father passed away and her mother remarried, and she was raised by her grandparents.  Miss Alsayed detailed how she had wished to sponsor her mother to visit her in Australia when she was pregnant with her fifth child and had hoped to be able to forge a deep bond with her mother at that time, but her mother passed away suddenly before she was able to do this.  The Tribunal considered it was clear from her evidence at the hearing that Ms Al Sayed was significantly affected by this loss and the loss of the opportunity to bond deeply with her mother.  Ms Al Sayed indicated that she had visited Lebanon two years ago and had bonded strongly with Miss Alsayed, who she found resembled her mother in many respects including the way she talks and how she treats people.  Miss Alsayed indicated that she invited Miss Alsayed to visit her in Australia because she wants to spend more time with her sharing recollections of their mother.  Ms Al Sayed indicated that she is not in a position to travel to Lebanon again in the immediate future because of her caring responsibilities towards her five children, and once her sister is married in August she will no longer be in a position to visit Ms Al Sayed in Australia.  The Tribunal found this evidence to be genuine and heartfelt.

14. In light of the delegate’s expressed concerns regarding the political and security situation in North Lebanon the Tribunal also discussed with the review and visa applicants relevant country information drawn from the most recent DFAT Country Information Report as follows:[1]

    [1] DFAT Country Information Report, Lebanon, 19 March 2019, sections 2.8-2.13 and 2.43-2.49.

    • Lebanon is host to large numbers of refugees. Up to 1.5 million Syrians have taken refuge in Lebanon since the Syrian civil war commenced in March 2011. The government suspended the registration of Syrian refugees by the Office of the United Nations High Commissioner for Refugees (UNHCR) in 2015, so the true number is unknown.
    • The Syrian civil war has had a major impact on the Lebanese economy. The conflict cut off one of Lebanon’s major markets and a transport corridor to the Gulf, while the influx of Syrian refugees has heightened competition for low-skilled jobs and public services.
    • Lebanon continues to face several long-term structural weaknesses that predate the Syrian crisis, including political dysfunction, weak infrastructure and poor service delivery. Chronic fiscal deficits have increased Lebanon’s debt to GDP ratio, which is the third highest in the world. These factors combined to slow economic growth to the one to two per cent range between 2011 and 2017, after four years of averaging 8 per cent growth. Weak economic growth limits tax revenues, while the largest government expenditures remain debt servicing, public sector salaries, and transfers to the electricity sector.
    • GDP per capita was last recorded at USD7191 in 2017.
    • Wealth and income are, however, not evenly distributed: Lebanon has some of the highest levels of wealth and income inequality in the world. The World Bank estimates that some 200,000 additional Lebanese have been pushed into poverty as a result of the Syrian crisis, adding to the previous one million poor (defined as living below USD3.84 per capita per day).
    • Densely populated cities have limited housing stock, and the price of shelter and food has risen considerably. Social protection, government support, and access to employment is far more limited in mountainous rural areas than the coastal belt, and poverty is particularly acute in the north of the country and in the Beka’a Valley.
    • Unemployment is a major problem in Lebanon, particularly for the young.  In August 2017, the labour minister estimated that the overall unemployment rate was 25 per cent, with unemployment among those under 25 years of age at 37 per cent. The influx of Syrian refugees has led to increased competition for low-skilled jobs, particularly in the informal sector and in areas of high refugee concentration such as the north of the country and the Beka’a Valley.
    • DFAT assesses that limited economic opportunity, exacerbated by the influx of displaced Syrians, is a push factor for external migration.
    • Lebanon faces a range of security challenges. These include external threats related both to the conflict in neighbouring Syria and to tensions between Hezbollah and Israel; threats of terrorist attack from internal and external actors; politically-motivated violence due to civil unrest; and occasional incidents of communal violence. The government maintains security checkpoints, primarily in military and other restricted areas.
    • The conflict in Syria has increased tensions between communities in a number of areas. An unclear number of Lebanese supporters and opponents of the Syrian government have travelled to Syria to fight in the civil war.
    • Clashes have occurred between Lebanese security forces and Islamic State militants in the north-eastern Beka’a valley region (including the Hermel-Baalbek region and the towns of Arsal, el Qaa and Ras Baalbek). DFAT understands that security operations conducted against Islamic State have succeeded in reducing the threat the organisation poses, although ‘lone wolf’ attacks cannot be ruled out.

15. While the Tribunal considers that the matters raised in the country information cited above might be cause for some Lebanese nationals to seek external migration (particularly young unemployed or those in areas experiencing active conflict), the Tribunal finds that economic and security conditions are not ‘push factors’ factors for Miss Alsayed given she is to be married in August 2019 to a local man who is employed as a Chef, and she has a large number of siblings (sixteen) remaining in the Denbo area of Akkar Governorate in North Lebanon.  The Tribunal also gives weight to the evidence provided by the review and visa applicants and their representative that Miss Alsayed’s home area is not close to the Syrian border or a conflict affected area, or an area that is supporting a refugee population, and is peaceful and safe.

16. The representative stressed that not all young people from Lebanon wish to migrate and in Miss Alsayed’s case her future is in Lebanon with her soon to be husband and her siblings.  The representative also stressed that it is important to Ms Al Sayed that her sister visits Australia and returns to Lebanon as she has many other siblings and wishes to have the opportunity to sponsor some of them for visits to Australia in the future.

17. 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.

    DECISION

18. 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