El Hage (Migration)

[2019] AATA 5370

El Hage (Migration) [2019] AATA 5370 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamed Walid Mahmoud El Hage

VISA APPLICANT:  Mr Taleb Medhat

CASE NUMBER:  1812344

HOME AFFAIRS REFERENCE(S):         BCC2018/1397634

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  30 July 2019

DATE OF WRITTEN STATEMENT:       1 August 2019

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 01 August 2019 at 4:52pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting sisters and their families – incentive to return to home country – security and economic situation in Lebanon – personal and economic ties to home country – credible witness – 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 Immigration on 12 April 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 23 March 2018, the visa applicant—who is, at the time of this decision, a 25 year old national of Lebanon—applied for the visa. 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 (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 review applicant is the visa applicant’s maternal uncle. He is in his 50s and told the Tribunal at the hearing that he is married with a family and has lived in Australia since 1977. He provided the Tribunal with a copy of the primary decision. 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 for the purpose for which the visa could be granted.

5. On 30 July 2019, the review applicant appeared before the Tribunal to give evidence and present arguments. The review applicant has been unrepresented in this review. 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.

6. The Tribunal gave its decision on the review at the conclusion of the hearing. The Tribunal concluded that the matter should be remitted for reconsideration. The following are the reasons for that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The visa applicant seeks the visa for the purposes of visiting various family members in Australia, particularly his two sisters and their families. The Tribunal notes that one of the visa applicant’s sisters attended the hearing as a support person for the review applicant.

9. The claimed purpose for the visit is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. At the hearing, the Tribunal explained to the review applicant the requirements of cl.600.211 and the matters relevant to its assessment. The Tribunal told the review applicant that the primary issue for consideration was whether the visa applicant genuinely intends to visit Australia temporarily.

11. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s file as well as the oral evidence given at the hearing.

    Clause 600.211(a)

12. 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).

13. Both the review applicant and the visa applicant gave consistent oral evidence that the visa applicant has not travelled to Australia before. The review applicant said that, twice before, the visa applicant had applied and been refused a visitor visa to Australia. In the circumstances, the Tribunal makes no findings with respect to previous compliance with immigration conditions.

14. Both the review applicant and the visa applicant also gave consistent oral evidence that the visa applicant had travelled outside Lebanon only once before, when he travelled to Saudi Arabia a couple of years ago. They both told the Tribunal that the visa applicant had complied with his visa conditions.

15. They both also noted that the visa applicant’s father had travelled to Australia previously and that he had complied with all visa conditions. The review applicant also noted that his parents had travelled to Australia before and complied with their visa conditions. The visa applicant gave oral evidence that he also thought that his sister who lives in Lebanon had travelled to Australia before and had complied with visa conditions.

16. The Tribunal has no reason to doubt the veracity of the applicants’ oral evidence.

    Clause 600.211(b)

17. 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).

18. 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; and

    ·8531 – must not remain in Australia after end of permitted stay.

19. The Tribunal discussed each of these conditions with the review applicant and the visa applicant. The review applicant told the Tribunal that he honestly believed that the visa applicant would comply with all conditions. The Tribunal found the review applicant to be very credible so the Tribunal accepts his oral evidence. The visa applicant gave oral evidence that, if granted the visa, he would comply with all visa conditions. The Tribunal has no reason to doubt the veracity of this evidence. 

    Clause 600.211(c)

20. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

21. In the primary decision, the delegate noted that the visa applicant’s parents and siblings would remain in Lebanon for the duration of the visa applicant’s proposed visit to Australia and that the visa applicant had approved leave from his employer (with whom, at that time, he had been employed for five years) but notwithstanding, the delegate expressed the view that the visa applicant had not provided evidence of sufficient personal, financial, employment and cultural ties to Lebanon to demonstrate that he intends a genuine temporary stay in Australia.

22. The Tribunal asked the review applicant questions to ascertain the factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to Lebanon.

23. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the visa applicant has some family members present in Australia. The review applicant told the Tribunal that the visa applicant had the following family members living in Australia: two sisters; him; another maternal uncle; one maternal aunt; one paternal aunt and a large number of cousins from both the visa applicant’s mother’s side and his father’s side.

24. The delegate raised country information as a general concern in the primary decision, stating, ‘I have concerns that the current instability in Lebanon and the surrounding region may act as a disincentive for the applicant to return to Lebanon within the validity of their visa’.

25. During the hearing, the Tribunal raised with the applicants the information about Lebanon published by the Australian Government Department of Foreign Affairs and Trade (DFAT) on the Smart Traveller website.[1] The travel advisory states that travellers should ‘[e]xercise a high degree of caution in Lebanon overall due to the unpredictable security situation, the threat of terrorist attack and ongoing political and sectarian tensions’. It also states that ‘[h]igher levels apply in some parts of Lebanon’. The Tribunal also raised some information in DFAT’s country information report on Lebanon, specifically the statements that ‘Lebanon continues to face several long-term structural weaknesses …, including political dysfunction, weak infrastructure and poor service delivery’ and that ‘poverty is particularly acute in the north of the country’.[2] 

    1DFAT, Smartraveller, Lebanon, last updated on 16 April 2019, still current as at 30 July 2019.  

    2DFAT, DFAT Country Report Lebanon, 19 March 2019.

26. When asked to comment on or respond to this information, the review applicant told the Tribunal that he did not consider that the security and economic situation in Lebanon would be a reason for the visa applicant to come to Australia and not comply with the visa. He told the Tribunal that, five months ago, he had been to the village where the visa applicant is living and that everything was going well for the people living there. Similarly, the visa applicant said that the country information outlined by the Tribunal would not be a reason why he would not comply with the visa. He gave oral evidence that he was happy living in Lebanon. He said that he was working and earning money. He said that he was aware that tourists come to Lebanon from all parts of the world, including Australia, and that they some of them stay for 2–3 months because the lifestyle in Lebanon is good. He said that the security and economic situation in Lebanon was relatively good. He said that more jobs were becoming available and he said that people in Lebanon did have money but they hide it and enjoy telling others that they are poor.

27. Having had the opportunity of hearing the applicants’ oral evidence, the Tribunal accepts their oral evidence that the visa applicant is not directly affected by the unpredictable security situation in Lebanon and enjoys a comfortable standard of living in Lebanon.

28. Even though the visa applicant is not directly affected by the unpredictable security situation in Lebanon, the Tribunal is mindful that, nevertheless, it may act as a disincentive for him to return there. However, the Tribunal considers that any residual concern about the unpredictability of the security situation is outweighed by other positive aspects of this case.   

29. At the hearing, the review applicant and the visa applicant gave oral evidence about a number of the visa applicant’s personal circumstances which would encourage him to return to Lebanon at the end of the proposed visit.

30. The review applicant told the Tribunal that the visa applicant’s parents, grandparents, his twin brother and three sisters would remain in Lebanon. He also told the Tribunal that the visa applicant has a girlfriend who would remain in Lebanon. He gave oral evidence that he thought that the visa applicant and his girlfriend intended to marry but that they were not engaged yet as the girl’s parents were reluctant for such a commitment until after she had finished her university studies. He told the Tribunal that he believed that the visa applicant had plans to stay in Lebanon, to marry and settle there.

31. The visa applicant gave consistent oral evidence and added further details about some matters. For example, he gave oral evidence that his mother was particularly attached to him and that his father was getting older and needed his support. He said that these were some of the reasons why he had a genuine intention to stay temporarily in Australia. He also told the Tribunal the name of his girlfriend and explained that she was due to finish her university studies this year. He gave oral evidence that he intended to have a family with this particular girl. Further, he explained that he had friends in Lebanon and that he had talked to them and told them that he is committed to life in Lebanon, which he said, was a beautiful country.

32. The two men also gave oral evidence that the visa applicant has two jobs in Lebanon. The review applicant explained that the visa applicant’s main job was working in a travel agency which facilitates travel for pilgrims to Mecca and Medina and he said that the visa applicant had worked there for a number of years. He told the Tribunal that the visa applicant also has a second job, working in valet parking, and he thought that the visa applicant had had this job for around five months. He stated that the visa applicant’s income would be considered to be good for the area in Lebanon where he lives but that it would not be considered so good in Beirut.

33. Again, the visa applicant gave consistent oral evidence and was able to provide further details, including the amount of his salary from each job. He told the Tribunal that his income was very good. He said that he had taken on the second job because he wants to be independent and he wants to finish preparing his apartment.

34. With respect to assets, the review applicant told the Tribunal that the visa applicant has an apartment in the family’s village. When questioned about legal ownership, the review applicant explained that the visa applicant’s father retained the title but that according to their tradition, the visa applicant is considered to own the apartment. He explained that even his own property in the village continues to be registered in his own father’s name. He said that he also thought that the visa applicant probably owns a car. The visa applicant gave consistent oral evidence in respect of these matters, including confirming that he owns a car and that the family owns blocks of land in the village and that these will be bequeathed to him and his brother and sisters.

35. The Tribunal notes that the review applicant submitted some documentary evidence pertaining to the financial status of the visa applicant, including a bank statement dated 15 July 2019 and a ‘to whom it may concern’ letter dated 10 July 2019 confirming the visa applicant’s employment at the travel agency, salary and approval of vacation leave. 

    CONCLUSION

36. After considering all the evidence before it, including the visa applicant’s personal circumstances, on balance the Tribunal considers that the presence of the bulk of the visa applicant’s family members, girlfriend, his assets, livelihood and personal commitment to life in Lebanon form stronger incentives for the him to return to Lebanon than the incentive to remain in Australia with his two sisters, their families and various uncles and aunts and their families.   

37. 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

38. 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.

    Justine Clarke
    Member