Allam (Migration)

[2023] AATA 4474

Allam (Migration) [2023] AATA 4474 (2 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sami Allam

VISA APPLICANT:  Mr Oussama Allam

REPRESENTATIVE:  Mr Jonathon Patrick Trainer

CASE NUMBER:  2215029

HOME AFFAIRS REFERENCE(S):          BCC2022/2429191

MEMBER:Peter Papadopoulos

DATE:2 November 2023

PLACE OF DECISION:  Sydney

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 02 November 2023 at 5:05pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – past compliance with visa conditions – intention to comply with visa conditions – No Work condition – stable financial position – No Study condition – No Further Visa condition – No Further Stay condition – personal and economic ties in Lebanon – other relevant matters – economic, security and political situations in Lebanon – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211; Schedule 8, Conditions 8101, 8201, 8503, 8531

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 21 September 2022 to refuse to grant Mr Oussama Allam (Oussama or 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 29 June 2022.  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 visa 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 (Cth) (the Regulations). Relevantly to this case, they include clause 600.211:

   600.211
   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:  
   (a)  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; and 
   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and 
   (c)  any other relevant matter.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia.

5. On 12 October 2022, Mr Sami Allam (the review applicant or Sami) lodged with the Tribunal an application for review of the delegate’s decision.

6. The review applicant appeared in-person before the Tribunal on 27 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, who appeared by video using the Microsoft teams technology platform. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. The review applicant was represented in relation to the review however the representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Claims and evidence provided to the Department

9. The following documents, in original form along with certified translations where applicable, were provided to the Department in support of Oussama’s visa application:

   ·     Department form (online), ‘Application for a Visitor Short Stay Visa’, submitted 29 June 2022 detailing Oussama Allam as the visa applicant;

   ·     completed Department form 956, ‘Appointment of a registered migration agent, a legal practitioner or exempt person’, detailing the representative’s appointment;

   ·     Bank statement for the visa applicant, from Banque Libano-Francaise, showing a balance of USD 1,533.71 as at 31 May 2022 and no withdrawals for the period between 10 June 2021 and 31 May 2022;

   ·     Bank Statement for the visa applicant, from First National Bank, Tripoli Branch, dated 16 June 2022, showing a balance of USD5,613.13;

   ·     Bank Statement for the visa applicant, from Fransabank, showing a balance of LBP 14,746,325 as at 23 May 2022;

   ·     Bank statement for the review applicant, from NAB, showing a balance of AUD52,500.21 as at 17 June 2022;

   ·     Letter from Marie-Therese Kawal, President, Tripoli Bar Association dated 8 June 2022 confirming the visa applicant’s occupation as an attorney since 1997;

   ·     Contract of sale of real estate dated 17 April 2013 in relation to property located in Kfrachlan, Lebanon for a purchase price of LBP1,000,000 (Vendor: Ishak Bader Nahhas; Purchasers: Sami and Oussama in equal shares);

   ·     Oussama’s Family Register;

   ·     Oussama’s Lebanese National ID card;

   ·     Letters from Sheik Zouheir Kebbe, General Director of the Zakat Fund dated 28 January 2022 and 13 June 2022 in which the author outlines the Fund’s role in ameliorating ‘the conditions of orphans, the poor, the sick, people with special needs, education and People with difficult social situations’, the visa applicant’s assignment to lead the Fund’s Dennieh branch on a voluntary basis and the requirement that he not be absent from Lebanon for any period exceeding a month;

   ·     Oussama’s Lebanese passport issued 16 June 2010, biodata page and various pages showing travel entry/exit stamps;

   ·     Oussama’s Lebanese passport issued 28 March 2015, biodata page and various pages showing travel entry/exit stamps;

   ·     Sami’s Australian passport issued 3 October 2020, biodata page;

   ·     Letter of support from Sami dated 27 June 2022;

   ·     Sami’s NSW Heavy Vehicle Driver’s Licence (expiry date 3 December 2024);

   ·     Representative’s legal submission dated 5 September 2022.

   Claims and evidence provided to the Tribunal

10. On 19 October 2023, the representative provided the Tribunal with a legal submission dated 19 October 2023 (the representative’s submission) along with the following supporting documents:

    ·     Family Registration Statement detailing the siblings and parents of the Oussama and Sami;

    ·     Family Registration Statement detailing the wife and children of Oussama;

    ·     Letter from Oussama to the Tribunal, dated 16 October 2023;

    ·     Letter from Oussama to the Australian Embassy dated 12 October 2023, in which he seeks to clarify his financial position and pledge his commitment to self-fund his proposed travel to Australia;

    ·     Letter from Marie-Therese Kawal, President, Tripoli Bar Association dated 9 October 2023 confirming the visa applicant’s occupation as an attorney since 1997;

    ·     Bank statement for the visa applicant, from Banque Libano-Francaise, showing a balance of USD 1,415.71 as at 29 September 2023 and no withdrawals for the period between 31 January 2022 and 29 September 2023;

    ·     Bank Statement for the visa applicant, from First National Bank, Tripoli Branch, dated 16 October 2023, showing a balance of USD5,613.13;

    ·     Bank Statement for the visa applicant, from Fransabank, showing a balance of LBP 14,746,325 as at 23 May 2022;

    ·     Bank statement for the Review applicant, from NAB, as of 17 October 2023, showing a balance of AUD67,167.40 as at 16 October 2023;

    ·     Contract of sale of real estate dated 17 April 2013 in relation to property located in Kfrachlan, Lebanon for a purchase price of LBP1,000,000 (Vendor: Ishak Bader Nahhas; Purchasers: Sami and Oussama in equal shares);

    ·     Vehicle registrations issued in the name of the visa applicant for a Honda Sedan (dated 20 August 2018) and Jeep Cherokee (dated 26 July 2019);

    ·     Oussama’s current Lebanese passport issued 17 December 2024 and valid until 16 December 2024), biodata page;

    ·     Various travel entry/exit stamps and Italian visa label affixed to the visa applicant’s passport/s;

    ·     Travel itinerary showing tickets booked for the visa applicant to travel to Italy between 24 October 2023 and 31 October 2023 (departing Milan, Italy at 4.50pm on Monday 30 October and arriving in Beirut Lebanon at 12.45am on 31 October).

11. On 1 November 2023, the Tribunal was provided with scanned copied of two pages of the visa applicant’s passport in which a travel stamp had been affixed indicating that the applicant had returned to Lebanon on 31 October 2023.

    Issue for determination

12. 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 he has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

    Purpose of stay

13. In the present case, the visa applicant seeks the visa for the purposes of visiting family over the Christmas/New Year period for up to one month. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

    600.211(a)

14. 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)).

15. Oussama has previously travelled to and remained in Australia as the holder of a visitor visa on four separate occasions.  On each occasion he entered and remained in Australia for the purpose of visiting his family and departed before the expiry date of his visa.  The Tribunal finds that He did not overstay any of his previous visas and there is no evidence before the Tribunal that he failed to comply with any condition imposed upon those visas.

    600.211(b)

16. The Tribunal must also consider whether Oussama 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 relevantly as follows (cl 600.612):

    ·     8101 – The holder must not engage in work in Australia.

    ·     8201 – While in Australia, the holder must not engage, for more than three months, in any studies or training.

    ·     8503 – The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

    ·     8531 – The holder must not remain in Australia after end of the period of stay permitted.

17. In considering whether Oussama intends to comply with condition 8101, the Tribunal discussed with each of Sami and Oussama the nature of Oussama’s proposed activities in Australia and how they would be funded.  Sami explained that his brother is a successful lawyer in Lebanon who did not need to work in Australia and was solely interested in visiting his family as he had done in the past.  Sami further explained that while he was willing and able to fund his brother’s visit to Australia, he understood that this was unnecessary given his brother’s stable financial position. Sami explained that Oussama would be accommodated at the family homes of each brother in Australia and would also spend time with his son Mohssen who had recently married.  Sami further explained the nature of his extensive business enterprises in Australia, which had a turnover exceeding AUD120 million in the previous financial year.  Oussama separately confirmed that he would reside with his brothers while in Australia but indicated that he pay for his own accommodation outside Sydney when undertaking tourist activities including during a proposed visit to Melbourne to see friends. He explained the nature of his legal practice in Lebanon largely involved conveyancing and property management matters, acknowledging that the banking crisis and economic difficulties in Lebanon since 2019 had an adverse impact upon his income as property transactions had slowed in the country given the delay in title transfers as result of fewer employed public sector officials. Asked to explain the source of his income, Oussama told the Tribunal that he still maintained a sufficient number of clients to earn a monthly income of USD3,500. He explained that the large majority of his income was paid in cash by clients and he kept that cash in safes at his family home, noting that this was the only feasible means of securely keeping funds without having to engage with the crippled Lebanese banking system.  He further explained that his wife is a high school-principal and her income supplemented their family’s financial resources.   Given the provision of accommodation to Oussama, along with the persuasive oral evidence in relation to the Oussama’s relatively stable financial position along with the strength of Sami’s willingness and capacity to financially support Oussama’s proposed visit to Australia, the Tribunal is satisfied that Oussama intends to comply with condition 8101.

18. There is no indication before the Tribunal that Oussama would seek to engage in study or training in Australia.  At hearing, Oussama told the Tribunal that he primarily wanted to visit his family in Australia, which would engage him for the most part of his proposed one month visit.  Given this evidence, and the fact that the proposed period of stay sought is for a period of up to three months, the Tribunal is satisfied that Oussama intends to comply with condition 8201. 

19. Condition 8503 does not, on its face, mandate the applicant comply with any particular requirement. The condition operates to restrict the grant of a substantive visa, other than a protection visa, to a visa holder while they are onshore.  Furthermore, unless waived, the condition operates to invalidate the onshore lodgment of any visa application other than a protection visa application while an applicant is onshore. Therefore, there is no basis upon which the Tribunal may assess a visa applicant’s intention to comply with this condition as the condition pertains to a restriction upon the making of a further application by operation of law rather than a requirement for a visa holder to do, or refrain from doing, an act or thing.

20. In considering whether Oussama intends to comply with condition 8531, the Tribunal gives weight to the fact that Oussama did not remain in Australia after end of the period of stay permitted by each of his visitor visas when he visited Australia on four previous occasions.  Asked at hearing about his incentives to return to Lebanon after the end of his proposed visit, Oussama spoke compellingly about his work commitments and the fact that he was needed in Lebanon by his immediate family, particularly his wife and three youngest children.  The Tribunal was particularly persuaded by the strength of his commitment to return in order to continuing caring for his mother who is in her twilight years and living with Alzheimer’s disease.  The Tribunal also notes the oral and documentary evidence in relation to Oussama’s charitable volunteer commitments with the Zakat and is persuaded by his claim at hearing that these commitments were important to him and part of the reason he needed to return to Lebanon given the ongoing economic difficulties faced by vulnerable persons in that country.  At hearing, Sami reiterated on numerous occasions that his brother would not seek to remain beyond the period of stay permitted on the visa because his life was anchored in Lebanon.  Asked to explain why Oussama had not sought to migrate to Australia earlier unlike his brothers, Sami told the Tribunal that Oussama was better educated than his brothers and therefore had greater prospects of success in Lebanon.  He explained that Oussama had remained in Lebanon to pursue his legal career and to care for their elderly parents.  The Tribunal was persuaded by Sami’s oral evidence in this regard.  Oussama further told the Tribunal that he had no intention of remaining in Australia as he was too old to re-train in order to become a lawyer practising in the Australian jurisdiction. Given the spontaneous and free-flowing nature of the evidence given by Oussama in relation to his intention to return to Lebanon at the end of the proposed visit, the Tribunal found his evidence on this issue to be persuasive.  Taking into account these matters, and other relevant matters outlined below, the Tribunal is satisfied that Oussama intends to comply with condition 8531.

    600.211(c)

21. The Tribunal has also considered other relevant matters (cl 600.211(c)). In doing so, the Tribunal discussed with Sami and Oussama the duration and timing of Oussama’s proposed visit to Australia taking into account his personal circumstances.  Oussama explained that he only intended to visit Australia for a period of up to one month as he did not feel comfortable being away from his wider family network in Lebanon for any longer period of time. At the date of hearing Oussama was travelling in Switzerland with his daughter Joudi as she had recently moved to Italy where she had given birth to her first child.  The Tribunal notes that the visa applicant returned to Lebanon as scheduled after this visit.  Furthermore, Sami insisted at hearing that he understood his brother would need to abide by the conditions of his visitor visa and that he would ensure such compliance by arranging the payment of a bond of up to AUD15,000 if required by the Department.  

22. The Tribunal asked Sami how the economic, security and political situations in Lebanon have impacted on Oussama and his family.  Sami explained that his brother was in a financially secure position and had not required any financial support from Australia.  Asked how recent social unrest and conflict in Lebanon affected Oussama and his family, particularly given the escalating tensions in the region since Hamas’ attack on Israel on 7 October 2023, Sami told the Tribunal that his family in Lebanon had become accustomed to instability and security issues in the country and that the present situation was not especially grave as they resided in northern Lebanon in an area that was well-removed from Lebanon’s southern border with Israel.  Oussama also acknowledged the Tribunal’s concern in relation to the security situation in Lebanon but was somewhat pragmatic, telling the Tribunal that northern Lebanon was relatively safe.   

23. Sami was present while Oussama gave his evidence to the Tribunal.  After having heard their oral evidence, the Tribunal raised two concerns with Sami for comment.

24. First, the Tribunal explained that country information recently provided by the Department of Foreign Affairs and Trade (DFAT) indicated that Lebanon’s security situation is uncertain due to conflict in neighbouring Syria, tensions between Hezbollah (which is part of the Lebanese Government) and Israel, terrorist threats from internal and external actors, and, occasionally, communal violence.[1]  The Tribunal also drew to his attention to recent media reports indicating the security situation in the Middle East had deteriorated significantly since Hamas attacked Israel on 7 October 2023, with regional instability and tension having extended to Lebanon whereby Hezbollah and Israel have engaged in skirmishes across Lebanon’s southern border and reports indicating Israel’s concern that Hezbollah risks dragging Lebanon toward war.[2]  The Tribunal also drew his attention to DFAT’s latest Smartraveller Advice as of 23 October 2023 indicating that Lebanese authorities maintain that extremists have taken refuge in northern Lebanon.[3]  Asked to explain how the security situation in Lebanon did not act as an incentive for Oussama to remain in Australia after his visitor visa expired, Sami explained that his brother was in Europe at the date of the hearing  - where he had been visiting his daughter, son-in-law and grandchild in Italy before travelling to Switzerland for a holiday – and intended to return to Lebanon in the coming week despite escalating tensions in the Middle East region.  The veracity of Sami’s claim in this regard is supported by evidence provided to the Tribunal following the hearing which indicates Oussama’s return to Lebanon on 31 October 2023.  Sami further explained that even if Oussama were granted a visa, he would not travel to Australia and leave his immediate family, particularly his vulnerable mother, in the event that war engulfed northern Lebanon. The Tribunal finds that Sami’s response overcomes its concern.

    [1] DFAT Country Information Report – Lebanon (26 June 2023), para 2.31

    [2] Abouzeid, R., ‘The Simmering Lebanese Front in Israel’s War’, The New Yorker, 21 October 2013; Khraiche, D. and Altstein, G., ‘Israel Says Hezbollah Dragging Lebanon Toward War as Towns Empty’, Bloomberg, 22 October 2023

    [3] Smartraveller – Lebanon, <accessed 23 October 2023>

1. Second, the Tribunal explained to Sami key aspects of the following country information from the latest DFAT report pertaining to the economic situation in Lebanon:

   2.7 Lebanon is experiencing severe economic depression. Gross Domestic Product (GDP) peaked in 2019 at USD54.9 billion then fell sharply to USD23.1 billion in 2021, according to World Bank figures. Those using US-dollar denominated accounts have had their savings locked or devalued, alongside a severe devaluation in the Lebanese Pound (LBP). Long-running public debt has become unsustainable.

   …

   2.9 Supply of basic goods including medicines, food and fuel is unpredictable, and they are sometimes rationed. Subsidies that were applied to these goods were mostly lifted as the economic crisis deepened and many Lebanese who relied on subsidies have been left without access to these goods.

   2.10 Poverty rates have doubled since 2019, affecting 82 per cent of the population, according to a UN study, although the World Bank believes this figure is exaggerated and it is now conducting its own study which it believes will show a figure around 50 per cent. There is little in the way of social welfare. The UN has scaled up humanitarian assistance in response to the economic crisis. It is providing limited payments to over 1 million Syrian refugees and 660,000 Lebanese, funded by donor governments and the World Bank. Remittances from the Lebanese diaspora contribute to over 50 per cent of the country’s GDP. However, the great majority of Lebanese living in poverty lack support.

   Asked to explain how the economic situation in Lebanon did not act as an incentive for Oussama to remain in Australia after his visa expired, Sami reiterated that his brother had already told the Tribunal about his capability of earning a sufficient income in Lebanon despite difficult economic circumstances and that his brother was a white-collar professional whose skills would not readily translate into immediate and secure employment in the Australian labor market given the need for him to re-qualify as an Australian legal practitioner.  The Tribunal is persuaded by Sami’s response as it accorded with other evidence before the Tribunal pertaining to Oussama’s employment circumstances in Lebanon, and how he had maintained an adequate lifestyle despite the broader economic difficulties faced by persons living in Lebanon.

2. The review applicant’s migration history is not adverse and suggestive that if Oussama arrived in Australia on a visitor visa, he would seek to remain here permanently. The review applicant came to Australia by way of the prospective marriage visa program, acquired permanent residence through the partner migration scheme and was subsequently granted Australian citizenship. The review applicant’s migration history is not suggestive that Oussama faces any problems in Lebanon. That said, Oussama acknowledged that his son had remained in Australia beyond a period of stay authorised on his visitor visa but insisted that he would not do so as his circumstances were very different to that of Mohssen’s who was younger and wished to remain in Australia for his own reasons.  Oussama further told the Tribunal that he was a Sunni Muslim who was a member of the Future Movement Party and had once held a party secretary role in the area of Dannieh.  The Tribunal finds that there is no information before it indicating that Oussama either intends to seek protection while visiting Australia or has any basis upon which he fears being harmed in Lebanon now or in the reasonably foreseeable future. This is suggestive of a view that Oussama will not come to Australia and refuse to return to Lebanon.

3. In terms of other evidence submitted to demonstrate that Oussama genuinely intends to stay temporarily in Australia, the Tribunal is persuaded that Oussama’s close relationship with his family members living in Lebanon, along with his professional and voluntary obligations, act as a strong incentive for him to return to Lebanon at the end of his proposed visit to Australia. The Tribunal also accepts the contention that Oussama is neither interested nor willing to migrate to Australia at this stage in his life, particularly given the challenges to be faced when migrating at this stage of his life along with his need to remain in Lebanon to care for his mother.

4. In reaching the above finding, the Tribunal has given weight to the candid testimony provided by the Oussama at hearing that while he of course expected to enjoy visiting Australia, he felt an overwhelming need not to leave his life in Lebanon.  The Tribunal found Oussama to be forthright in his evidence and accepts his contention that he is only prepared to remain in Australia on a temporary basis and would return to Lebanon at the end of his proposed visit. 

   Conclusion

5. Having considered all the evidence, the Tribunal finds Sami and Oussama to be credible witnesses and accepts their evidence.

6. The Tribunal accepts that Oussama’s personal and economic ties in Lebanon provide strong incentives for him to return at the end of his permitted stay in Australia. These personal ties include his close family members, professional obligations and volunteer work commitments.  The Tribunal is satisfied that Oussama is well-settled in Lebanon and it is not his intention to come to Australia for the purpose of seeking permanent residence here.

7. The Tribunal is satisfied that it is Oussama’s intention to visit Sami, Mohssen, other family members and some friends in Australia and that he will not remain in Australia after the end of his permitted stay. The Tribunal is satisfied Oussama will comply with his visa conditions. 

8. 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

9. 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.

   Peter Papadopoulos
   Member