El-Mustapha (Migration)

[2020] AATA 5910

El-Mustapha (Migration) [2020] AATA 5910 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kadije El-Mustapha

VISA APPLICANT:  Mrs Samah El-Mustapha

CASE NUMBER:  1826793

HOME AFFAIRS REFERENCE(S):          BCC2018/3775398

MEMBER:Angela Cranston

DATE:18 November 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 18 October 2020 at 10.14am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – strong personal ties to Australia – genuine temporary stay criterion – economic situation in home country–decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 9 July 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 20. The claims and evidence are directly below. 

3.    The visa applicant applied for the visa on 15 June 2018. In her application, the applicant stated that she was born in 1970, was married and in Tripoli North Lebanon, and that her husband would remain in Lebanon. It was also stated that she was unemployed as her husband was in receipt of a government pension for his services to the Lebanese government. 

4.    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.

5. 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.

6.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 and the review applicant applied for review.

7.    Prior to hearing, the Tribunal received a submission dated 13 September 2019 that included a letter from the applicant stating that she did not intend to make a refugee claim onshore and understood that this letter could be used against her should she make a protection visa application onshore.

8.    The review applicant appeared before the Tribunal on 9 November 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.

9.    The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

1. The review applicant stated the applicant had previously visited Australia in 2011 and 2014.  She also stated the applicant’s husband and two sons (who were single) were in Lebanon. She also had two sons, grandchildren and siblings in Australia. When asked what she had or needed to do which would mean that she would return to Lebanon, she stated she would return to her husband, children, home and property in Lebanon. She also stated her doctors were in Lebanon.

2. The Tribunal put to her that DFAT had stated that there was limited economic opportunities in Lebanon and that was a reason why people left. The Tribunal put to her that Lebanon was described as already on the verge of a humanitarian crisis because of the economic collapse and COVID even before one of the biggest known nuclear explosions in history in August in Beirut. The review applicant stated the applicant was not economically affected and was safe in her home, her children in Australia sent spending money and her husband had a pension so they had a good standard of living. They also had property that they rented.

3. The review applicant also stated she was willing to provide a bond of up to $15 000.00. She stated because of the applicant’s age and commitments  she would not stay.

4. The review applicant’s adviser stated that one of the applicant’s sons, Mustapha Rifai had applied for a prospective spouse (subclass 300) visa but that the relationship had fallen apart and his visa application would be withdrawn.

5. After the hearing,  the Tribunal received correspondence stating that Mr Mustapha Rifai had attached a signed form 1446 “Withdrawal of a visa application” to his ImmAccount.   

6. Movement records indicate the applicant arrived in Australia on a 676 on 20 February 2011 and departed on 3 April 2011. She again arrived on 12 December 2013 and departed on 1 March 2014.

1. Movement records also state Mohamad Rifai (born 1993) arrived on 13 June 2014 on a 600 and was granted a 801 spouse visa on 22 January 2020. Ahmad Rifai (born 2001) arrived on 12 December 2013 and departed on 1 March 2004. Bilal Rifai (born 1987) arrived on 22 April 2008 on a 679 and departed on 19 July 2008. He again arrived on a 300 on 20 March 2010 and was granted a 820 spouse visa on 2 June 2011. Mostafa Rifai (born 1987) applied for a prospective spouse visa on 12 June 2020.

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, 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 review applicant a fair opportunity before, during and after the hearing to provide all the evidence and arguments and evidence that she wanted the Tribunal to consider.

3. 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.

4. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister, the review applicant and the applicant’s two sons. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

5. 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)). In this case, the applicant travelled to Australia on a 676 on 20 February 2011 and departed on 3 April 2011. She again arrived on 12 December 2013 on a 600 and departed on 1 March 2014.

6. 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.

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

8. The applicant, who is 50 years old, does not work, is married with 4 adult sons, two of whom are in Lebanon.  The Tribunal is satisfied that the applicant has ties to Lebanon and that these would encourage her to return. However, the applicant also has strong personal ties to Australia in that her two sons, grandchildren and siblings are here. One of her sons in Lebanon also recently applied to come to Australia based on his fiancé relationship however that application is now non-on-going. While the Tribunal acknowledges that there is no evidence to suggest that the applicant has not previously complied with her Australian visas, the applicant previously travelled to Australia before her son, Mohamad Rifai obtained his permanent residence in Australia and before the current turmoil in Lebanon. As stated, even though the applicant has her home, property, car, doctors, husband and two adult sons in Lebanon and states that it is her understanding that her signed declaration about the UN Refugee definition would be treated as adverse information against her, country reports suggest that Lebanon is facing economic collapse now exacerbated by not only the COVID 19 pandemic but now by one-of the largest non-nuclear explosions in history in Beirut. The Tribunal finds it is not satisfied that if the applicant were to come to Australia then she would not seek to remain with her family in Australia, even if a bond were imposed. 

9. 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