El Achkar (Migration)

[2021] AATA 3783

El Achkar (Migration) [2021] AATA 3783 (20 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Youssef El Achkar

VISA APPLICANT:  Mr Ziad El Achhkar

CASE NUMBER:  1935123

HOME AFFAIRS REFERENCE(S):          BCC2019/5406861

MEMBER:Mark Bishop

DATE:20 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2021 at 4:31pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – not satisfied that visa applicant genuinely intends to stay temporarily in Australia –  immigration history of the applicant and family – significant deterioration of the economic, social, and security situation in Lebanon –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 Home Affairs on 19 November 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 17 October 2019. 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. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211.

5. The Review Applicant (RA) appeared before the Tribunal on 20 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the Visa Applicant (VA).

6. The review applicant was represented in relation to the review by his Migration Agent (MA).

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

   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 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. 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.

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

13. The delegate made the following findings:

    ·“I have noted that the applicant has indicated the presence of family members that will remain in Lebanon during their proposed visit to Australia, namely wife and 4 dependent aged children, ages 16, 13, 9 and 7. While I acknowledge that these family members may offer some inducement to return to Lebanon , I am no satisfied that their presence sufficiently demonstrates that the applicant intends a genuine temporary stay in Australia.

    ·In response to the employment status of the applicant on form 1418, the applicant declared that he has been self-employed as a taxi driver. While I acknowledge that the applicant's employment may provide some incentive to return, it is not sufficient to demonstrate that the applicant intends to depart Australia within the validity of their visa.

    ·Recent reports from the Department of Foreign Affairs and Trade (DFAT) indicate that North Lebanon is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and ongoing violence. While I accept that the applicant may not be directly affected by the civil unrest occurring in parts of Lebanon, these reports indicate that the north of Lebanon is most affected. Given such information, the civil unrest in North Lebanon at this time may encourage the applicant to remain in Australia after the expiry of any visa should it be granted.

    ·The applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in Australia or other countries. I therefore place no weight on previous international travel as evidence that the applicant will comply with his visa conditions and depart Australia within the validity of his visa.

    ·In assessing the applicant's intentions for their intended visit to Australia, I have taken both the reason and duration of the applicant's intended travel into account. The applicant indicated that they intend to travel to Australia for up to 3 months and that their reason for travel is to spend time with nieces and nephews, spend time with brothers and their families during their summer holidays. I note that the applicant's personal circumstances is inconsistent with the length of stay requested, and therefore have concerns that the applicant may intend to travel to Australia for reasons other than a genuine temporary stay.

    ·To meet the genuine visitor requirement for this visa, visa applicant must demonstrate that their current circumstances support their claims that they intend a genuine visit to Australia and that there is sufficient incentive for them to return to their country of usual residence at the end of the proposed period of the visit. The applicant wishes to visit family. I have considered the support rendered by the family, documents provided in support of this application, and the immigration history of the applicant and family. I am not satisfied that the applicant would abide by the conditions subject to which a Sponsored Family Visitor Visa is granted or that the applicant would depart Australia at the end of the requested period of stay.

    ·On balance, I believe that the applicant has more incentives to remain in Australia than to return to home country. Individually, these factors may not appear significant. However, on balance, I find that the combination of these factors leads me to the conclusion that the applicant's expressed intention to visit Australia temporarily is not genuine.”

14. In evidence the RA advised the Tribunal as follows:

    ·He lived in Hatfield, Melbourne, was unemployed and separated from his wife and family of 5 children.

    ·The VA is his older brother.

    ·He understands the VA wishes to visit Australia to meet and spend time with an extended family that lives in Melbourne of over 100 people.

    ·He advised he understood government services and offices in the village of Golden Eye population 7000 to 10,000 were beginning to re-open but only for limited hours. The VA later confirmed this fact.

    ·He advised water and electricity were still on restricted supply and it was common to have recourse to private generators to access services. He further advised that banks were open sometimes.

    ·He advised the VA owned a taxi licence that gave an income and apparently entitled him to preferred access to hospital services. He also owned an olive grove.

    ·His brother had not travelled outside Lebanon.

    ·His brother was married with 4 children under the age of 18.

15. In evidence the VA advised the Tribunal as follows:

    ·He wished to visit Australia to meet and spend time with family. It was easier for him to visit Australia rather than large numbers of people doing the reverse from Australia.

    ·He advised the economy was not in a good state with unemployment at between 20% and 30%. Gradually power was being restored but people still relied on private generators. Government offices were starting to open for a few hours a day.

    ·He worked as a taxi driver.

    ·He advised inflation and prices more generally had gone to the maximum. The exchange rate had plummeted from around 1500 units of the local currency per $US two years  ago to about 20,000 although it had improved somewhat recently to around 14,000.

    ·His family were not coming to Australia.

16. The Tribunal has considered this evidence very carefully. However, the Tribunal after careful consideration finds that this evidence going to GTE considerations is outweighed by other factors including the recent significant deterioration of the economic, social, and security situation in Lebanon noted in the evidence as summarised above. The Tribunal notes the VA’s current circumstances including the fact he is self-employed as a taxi driver, has immediate family in his village and has other assets in his village. It is also noted by the Tribunal that the VA has extensive family in Australia (and Lebanon for that matter) and this family is now quite large, widespread and multi-generational in Australia. The Tribunal is not persuaded these matters either individually or taken together are sufficient to confirm applicant's expressed intention to visit Australia temporarily is genuine. Notwithstanding the existence of assets income from self-employment as a taxi driver and family in his village the Tribunal is not satisfied that the applicant would abide by the conditions subject to which a Sponsored Family Visitor Visa is granted or that the applicant would depart Australia at the end of the requested period of stay.

17. As stated, the Tribunal has also considered the recent country information reports from the Department of Foreign Affairs and Trade, and notes that the security, political, and economic situation in Lebanon at the present time is particularly bad. The VA advised the Tribunal that generally economic matters were starting to improve but was sufficiently honest in his evidence to acknowledge there were serious ongoing economic, finance and financial difficulties as evidenced by his remarks as to inflation, unemployment, the value of the currency, restricted access to electricity and limited government services. The Tribunal notes the recent humanitarian crisis and how it has evolved for the worse over the last few years. As noted above the RA and VA were aware of the suffering that was now occurring in the home country. As noted the Tribunal has considered this matter very carefully and finds that the situation back in the VA’s home country is quite poor and that this does lend weight to the contention that the VA does not genuinely intend to visit Australia temporarily for the purpose for which the visa is granted.

18. Having taken all these factors into consideration the Tribunal finds that should the VA now be successful in coming here as a visitor taking into contention the changed circumstances in Lebanon (the ongoing breakdown and only gradual differentiated improvements in government, community, social, restricted medical and hospital services (although the VA apparently has preferred access to hospital services deriving from the fact he owns a taxi licence), banking services  since the date of lodgement of the visa application in the home country as set out above that the VA may seek to stay here in some form on a long-term basis and that he does not genuinely intend to stay in Australia temporarily.

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

20. For the above reasons the Tribunal is not satisfied that the VA 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

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

    Mark Bishop

    Member