Atieh (Migration)

[2020] AATA 5671

Atieh (Migration) [2020] AATA 5671 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ziad Atieh

VISA APPLICANT:  Mr Monzer Atie

CASE NUMBER:  1837743

HOME AFFAIRS REFERENCE(S):          BCC2018/4977544

MEMBER:Angela Cranston

DATE:21 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 21 September 2020 at 10:40am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – genuine temporary stay criterion – economic and security situation in Lebanon– strong incentive to remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Immigration on 17 December 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2.    The Tribunal’s consideration of claims and evidence is at paragraph 14. The claims and evidence are directly below. 

3.    The visa applicant applied for the visa on 9 November 2018. 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.

4. 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.

5.    In his application, the applicant stated that he wished to visit Australia for up to 3 months and to be in Australia on 25 December and 31 December 2018 to celebrate Christmas and new year with his siblings and friends and their families. He stated he was born in 1993, was unmarried, lived in Tripoli and that his parents, 2 sisters and brother would not be accompanying him. He also stated his brother, sister, aunt and nephews were in Australia and he worked at Hozz Mall as a sales worker since 1 July 2016.

6.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 on the following basis:

I have noted that the applicant has declared the presence of family members that will remain in Lebanon during their proposed visit to Australia, namely their parents and siblings. While I acknowledge that these family members may offer some inducement to return to Lebanon I am not satisfied that their presence sufficiently demonstrates that the applicant intends a genuine temporary stay in Australia.

In response to the employment question on the application for a family sponsored visitor short stay visa the applicant indicated that they are currently employed in customer service in Hozz Mall since 1/07/2016. The applicant provided a work certificate to support this claim. The work certificate from the employer states that the applicant has been granted one month paid leave. While the applicant’s employment claims are not doubted, I have concerns that the applicant’s employment may not provide sufficient incentive to induce them to return to Lebanon within the validity of their visa.

Recent reports from the Department of Foreign Affairs and Trade indicate that Lebanon is currently experiencing unpredictable security situations, the threat of terrorist attacks and ongoing political and sectarian tensions. While I accept that the applicant may not be directly affected by the unrest occurring in parts of Lebanon these reports indicate that Lebanon is most affected. Given such information and the unrest in Lebanon where they reside at this time, may encourage the applicant to remain in Australia after the expiry of any visa should it be granted.

I acknowledge that the purpose of the applicant’s intended travel is to visit their family and I have noted the circumstances that have motivated the applicant to lodge an application for an Australian visa. However while the applicant’s purpose of visit is noted, this in itself does not demonstrate that the applicant only intends a genuine temporary stay. The applicant has not provided sufficient evidence to demonstrate that their true intention is only for a genuine temporary stay in Australia.

7.    The review applicant appeared before the Tribunal on 16 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant.  The Tribunal hearing was conducted in English.

8.    The review applicant stated that the applicant was currently engaged and was still employed. He stated in Lebanon, he had family that included his parents and 2 siblings. The review applicant stated that apart from him, the applicant had uncles and one aunt in Australia. He also stated that his parents had visited Australia twice, had complied with visa conditions and had returned. When the Tribunal put to the review applicant the country information that included the DFAT report for Lebanon, he stated that the applicant was coming to Australia for a holiday and it was no one’s intention to break immigration law.  He also stated that he was willing to provide a bond of up to $10 000 and that the applicant would not jeopardise his family’s future visa applications by remaining in Australia.  

9.    Movement records indicate the applicant arrived in Australia on 22 September 2009 on a tourist visa and departed on 15 October 2009. He again arrived on 24 June 2014 on a visitor visa and departed on 1 September 2014.

COUNTRY INFORMATION

1. According to DFAT Country Information Report Lebanon dated 19 March 2019:

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

1. According to an article in Aljazeera, To Rebuild Lebanon and its economy, uproot corruption, 2 September 2020 accessed 17 September 2020:

On August 4, one of the largest non-nuclear explosions in history wreaked havoc in Beirut. Nearly 200 lives were lost, and more than 6000 people were injured. An estimated 300,000 people were instantly left homeless. The blast obliterated homes, schools, medical facilities and the port of Beirut, which supplies nearly 85% of the country’s food. Humanitarian relief efforts are already underway, but the longer term reconstruction will take years. For Lebanon to truly recover, the country and its international partners will need to address something more insidious than the blast: corruption.

Lebanon was already on the verge of humanitarian crisis. In 2019, the country’s economic collapse threw hundreds of thousands into poverty and exacerbated an already spiking unemployment rate, especially among the youth. The COVID-19 pandemic and the subsequent lockdown further deepened the hardship, including for more than 1 million Syrian refugees…

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Initial issue

1. The Tribunal exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by telephone. The hearing was held during the Covid -19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

2. While the Tribunal spoke to the review applicant by telephone, the Tribunal's observations were that the review applicant was given ample opportunity to submit all the evidence that he wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the applicant a fair opportunity before and during the hearing to provide all the evidence and arguments and evidence that he wanted the Tribunal to consider.

Substantive Issue

1. 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.

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

3. 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)).

4. 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.

5. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

6. The Tribunal has considered the personal circumstances of the applicant who was born in 1993 and is nearly 27 and lives in Tripoli, North Lebanon. The applicant has a fiancée and is employed. He also has his parents and siblings in Lebanon.   The Tribunal is satisfied that the applicant has ties to Lebanon.

7. Although the applicant has ties to Lebanon, he also has personal ties to Australia in that his brother, and uncles and aunt are here. While the review applicant has stated that the applicant will return to Lebanon and the Tribunal acknowledges that there is no evidence to suggest that the applicant or his family have not previously complied their Australian visas, the Tribunal considers that the current situation in Lebanon is a significant push factor for external migration. 

8. As stated, even though the applicant has family and employment in Lebanon, country reports suggest Lebanon is facing economic collapse. the Tribunal considers that the current turmoil in Lebanon is a significant push factor for external migration. As stated, even though the applicant has family, employment and property in Lebanon,  country reports suggest that Lebanon is facing economic collapse exacerbated by the COVID 19 pandemic and now one of the largest non-nuclear explosions in history in Beirut.

9. While the review applicant has stated he is willing to lodge a security of up to $10 000 if required and that the review applicant himself would not jeopardise his family’s future visa applications, the Tribunal does not consider that this will serve as an inducement for the applicant to return to Lebanon should the applicant seek to remain.

10. The above means that the Tribunal has significant concerns that the applicant will seek to remain in Australia and that the applicant does not genuinely intend to stay temporarily in Australia.

11. For the above reasons the Tribunal is not satisfied that the 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 not met.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Angela Cranston
Member