Ammouche (Migration)

[2024] AATA 140

Ammouche (Migration) [2024] AATA 140 (9 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Samira Ammouche

VISA APPLICANT:  Mr Mohamad Kheir

CASE NUMBER:  2216000

HOME AFFAIRS REFERENCE(S):          BCC2022/2552631

MEMBER:Paul Windsor

DATE:9 January 2024

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 09 January 2024 at 3:51 pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – incentives to depart or remain – long-term employment, business, property assets and multiple compliant travel to third country – frank and heartfelt evidence – offer of security bond – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 12 October 2022 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 6 July 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 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 (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. In her decision record, the delegate indicated she refused to grant the visa because she was not satisfied the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted. In reaching this conclusion, the delegate commented that she did not consider that the applicant has strong employment or economic incentives to return to his home country at the end of his proposed stay, because he did not show he had strong financial, employment and/or personal ties to Lebanon.

5. The review applicant sought review of this decision on 1 November 2022. She provided the Tribunal with a copy of the delegate’s decision record.

6. The review applicant appeared before the Tribunal on 8 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. An Australian citizen sister of the review applicant also appeared at the hearing as a witness, along with a sister of the visa applicant, who came to Australia in December 2018 on a Student visa and is currently on a bridging visa, having made an application in Australia for a Carer visa.

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 purpose of visiting family members in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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)).

11. As the visa applicant has never previously held an Australia visa, this factor is not relevant in his case.

12. 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.

13. The visa applicant is a 26 year old single man from Al Minieh, which is located near the city of Tripoli in northern Lebanon. The review applicant, who sponsored him for the visa, is his 59 year old aunt. The review applicant is an Australian citizen, having arrived in Australia in 1983 on a Partner visa. She indicated she is one of five sisters who have migrated to Australia.

14. The visa applicant provided written evidence (from his employer) indicating that he has been in long term employment at Tripoli Port as a truck driver. He earns USD1,000 per month plus overtime. He provided a letter from his employer indicating that he is able to take two months off work.

15. The visa applicant provided written and oral evidence indicating that he has also opened a clothing business jointly his brother, with financial and material support from their father who has transferred property assets into the visa applicant’s name as well as given him USD15,000 to enable him to start the business. At the hearing, the visa applicant’s sister showed the Tribunal video footage from the visa applicant’s Instagram page of the visa applicant at his business and modelling some of the menswear he is selling. The visa applicant indicated that the business, which is a modern and well-appointed store, is located on the ground floor of the premises which his father has transferred into his name. The visa applicant indicated that he travels to Turkiye 3-4 times each year to buy clothes for the store. The visa applicant and his sister indicated that their father, who is now 64 years old, previously ran a business in the auto trade as well as a wedding reception business. They indicated their father is now building an apartment block on family land.

16. The visa applicant indicated that while he is still single he is ‘in love’ with someone in Lebanon and hopes to be in a position to become engaged in the near future when he has completed renovations on his house.

17. The visa applicant indicated he first applied to come to Australia to visit family members in 2018, when he was still a student, but this application also was refused. When asked, the visa applicant said he wishes to visit Australia because he has five aunties living here who all have children who are around his age. He added that he also has a sister and her children living in Australia whom he has not seen in a long time. He commented that they have spoken a lot to him about Australia and he wishes to see it first-hand. He confirmed that he does not have a set date for when he wishes to travel but his employer has undertaken to grant him leave for two months when he is able to travel.

18. The review applicant and witnesses advised that another sister of the visa applicant and his brother have both visited Australia on two occasions and complied with the conditions of their visas and that his mother and father have also both visited Australia in the past.

19. Considering the available evidence, the Tribunal finds that the visa applicant is well established in Lebanon, where he has had long term paid employment and has now established a clothing business with his brother, supported by his father. The Tribunal is satisfied that the visa applicant would not work in breach of condition 8101 or undertake study or training in breach of condition 8201, if granted the visa.

20. Condition 8503 is a restriction on the making of further visa applications rather than a condition that can be breached.

21. The Tribunal considers that the key consideration in this matter is whether the visa applicant would remain in Australia after the end of the permitted stay period. In considering this factor, the Tribunal has also had regard to all other relevant matters (cl 600.211(c)), as discussed below.

22. At the hearing the Tribunal discussed with the visa and review applicants excerpts from the current Department of Foreign Affairs and Trade (DFAT) Country Information Report on Lebanon.[1] The Tribunal noted that the report indicates that Lebanon’s recent history has been characterised by instability and economic and political crises. Inter-alia, 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. 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. The Tribunal observed that the current political and economic circumstances in Lebanon may provide a reason for not wishing to return there.

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

23. The visa applicant acknowledged that Lebanon was going through a very hard time and that that many were suffering economic problems. He added that the explosion at the port caused a lot of sadness for many people. The visa applicant commented that his circumstances, however, were much better than those of many Lebanese and his work situation is better than it was previously. He added that those in north Lebanon are not so focused on or affected by politics and what is happening in the south of Lebanon but are focused on their work.

24. The Tribunal found the evidence of the review and visa applicants and their witnesses to be frank and heartfelt. Considering the available evidence and notwithstanding the difficult political and economic situation in Lebanon currently, the Tribunal finds that the visa applicant has significant financial, employment and personal ties to Lebanon and is satisfied he will abide by condition 8531 and depart Australia prior to the expiry of the visa.

25. The review applicant indicated in her sponsorship application that she was prepared to lodge a security bond if requested to do so. She confirmed at the hearing that no security bond was requested. The Tribunal also gives some weight to the review applicant’s preparedness to lodge a security bond in finding that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

26. 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

27. 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