Derbass (Migration)

[2021] AATA 233

Derbass (Migration) [2021] AATA 233 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wael Mustapha Derbass

VISA APPLICANT:  Mr Ghassan Derbass

CASE NUMBER:  1902708

HOME AFFAIRS REFERENCE(S):          BCC2018/5414652

MEMBER:Angela Cranston

DATE:2 February 2021

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 2 February 2021 at 11.50am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – parents, wife, children, other family and employment in home country – previous compliant travel by applicant and other family members – country information – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 29 January 2019 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 3 December 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.

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 his application, the applicant stated that he wished to visit the review applicant his brother for 2 months from 15 January 2019 to 15 March 2019, that he was born in 1967, lived in Sir in North Lebanon, was married and that his spouse and 4 children born between 2000 and 2011 would remain. He also stated he was self-employed as a panel beater. 

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

The applicant indicated that he is leaving his spouse and four children in Lebanon for two months during the proposed visit. While I acknowledge that the applicant’s family may provide some incentive to return the presence of these family members are not sufficient to demonstrate that the applicant intends a genuine temporary stay in Australia.
In response to the employment status questions the applicant declared that he has been self-employed as a panel beater since 2003. In support of this claim the applicant provided the document dated 17/09/2018 which stated that he was in the panel beater profession for more than 15 years. While I note that the applicant’s employment may offer some incentive to return to Lebanon, I am not satisfied that the applicant’s employment ties offer sufficient incentive to induce the applicant to depart Australia within the validity of his visa.
I note that the applicant has travelled to Australia previously and departed within the validity of the visa. However the situation in Lebanon has changed significantly since this travel. Recent reports from the Department of Foreign Affairs and Trade indicate that Lebanon is currently experiencing an unpredictable security situation due to the threat of terrorist attack and ongoing political and sectarian tensions. While I accept the applicant may not be directly affected by the unpredictable security situation occurring in parts of Lebanon the unpredictable security situation may encourage the applicant remain astray after the expiry of any visa.

6.    The review applicant appeared before the Tribunal on 11 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7.    The review applicant stated the applicant had visited Australia three times and left within the terms of his visa.

8.    In response to the Department’s decision, the review applicant stated that Lebanon always had problems, that the applicant was not coming to work and the only reason the applicant was coming because the review applicant could not go to Lebanon.

9.    When asked who was in Australia, the review applicant stated the applicant had three brothers (including himself) all of whom who had obtained their permanent visas through marriage. In Lebanon, the review applicant had his parents, 4 brothers and 2 sisters all of whom were married except one sister. When asked who had been to Australia, he stated all except his eldest brother Waddah, and his sisters Fatma and Fadia.

1. The review applicant stated the applicant was still working in his own business as a panel beater. He had also opened a car wash business.

2. The review applicant stated the applicant would not work and would return to Lebanon because he had his family, his own business, father and mother who he also looked after. He stated the review applicant’s wife was a teacher and his family was the main reason he would return.

3. The Tribunal talked about the country information that suggested that even before 2020, Lebanon was on the verge of economic collapse, and since then, covid had deepened the problems. The Tribunal also put to the review applicant that an explosion had occurred in Beirut which may be reason why people may not return to Lebanon. The review applicant stated when the applicant lodged the visa application, things were going well and in the current situation, he would not have lodged a visa application. He said although the applicant came from the North, nothing had happened in the applicant’s immediate area.

4. The review applicant also stated he was willing to provide a bond of up to $50 000.

5. Movement records indicate the applicant arrived in Australia on 2 April 2007 on a tourist visa and departed on 28 June 2007. He again arrived on 6 November 2008 and departed on 4 February 2009. He again arrived on 8 July 2010 and departed on 6 October 2010.

6. Movement records indicate the review applicant arrived in Australia on 13 December 2002 on a prospective marriage visa and obtained permanent residence based on marriage on 17 September 2007. Mohamad Mustapha Derbass arrived in Australia on a spouse visa and obtained permanent residence based on marriage on 4 September 2006. Marwan Mustapha Derbass entered Australia on 2 April 2000 on a spouse visa and obtained permanent residence based on marriage on 22 October 2001.

7. The review applicant’s parents arrived in Australia on a tourist visa on 20 November 2007 and departed on 25 February 2008.

8. Zaid, the applicant’s brother arrived in Australia on 2 May 2005 on a tourist visa and departed on 30 July 2005. His brother Zouhair arrived on a tourist visa on 16 December 209 and departed on 13 March 2010.

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.

2. According to an article in Aljazeera, To Rebuild Lebanon and its economy, uproot corruption, 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…

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

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 they wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the review 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 app.licant 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 visitng the review applicant who is 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.

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

1. The Tribunal has considered the applicant's incentives to return to Lebanon. The applicant is 53 years old, married with children aged above and below 18. In addition, he also has his parents, siblings and his own business where he has worked for a long time.  The Tribunal is satisfied that the applicant has strong personal ties to Lebanon and these are reasons why, in the Tribunal view, the applicant would return to Lebanon after any period of authorised stay.

2. Having listened to the review applicant, the Tribunal accepts that it is the applicant's and review applicant's intention for the applicant to temporarily visit Australia. In reaching this conclusion, the Tribunal notes that not only the applicant, but many members of his family have visited and departed Australia within the period of their tourist visa. Accordingly, in the Tribunal's view, this family's compliance with migration laws is impressive and there is nothing in the applicant's or review applicant's past migration history or in the past migration history of any of their family to suggest that they have done anything other than what they say they will do.

3. While the delegate was concerned about the general security situation in North Lebanon, and the Tribunal finds that the economic situation in Lebanon has changed significantly in recent years, the Tribunal accepts that the applicant resides in Lebanon where his entire family (except for the review applicant and two siblings) also live. The Tribunal is of the view that the applicant has stronger ties to Lebanon than he does to Australia. The Tribunal has considered the personal factors unique to the applicant including his family in Lebanon as well as his previous migration history and considers that these indicate the applicant is settled in Lebanon and will return there at the end of his visit. In reaching this conclusion the Tribunal has also considered the review applicant’s understanding of the potential adverse consequences on future visa applications for the applicant or his family if the applicant does not comply with any of the visa conditions including remaining after the end of any permitted stay. The potential loss of any security bond if one is imposed by the Department would also provide additional incentives for her compliance.

4. The Tribunal therefore finds that the applicant genuinely intends to visit Australia and will comply with visa conditions.

5. 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

1. 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.

Angela Cranston
Member