El Rahi (Migration)

[2023] AATA 4342

El Rahi (Migration) [2023] AATA 4342 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Ahmad El Rahi

VISA APPLICANT:  Ms Yasmin Al Rai

REPRESENTATIVE:  Dr Fadi Kotob

CASE NUMBER:  2319569

HOME AFFAIRS REFERENCE(S):          BCC2023/6360552

MEMBER:Member Nathan Goetz

DATE:18 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision made on 17 November 2023 refusing to grant the visa applicant a Visitor (Class FA) visa, and remits the visa back to the delegate for reconsideration with the direction that the visa applicant meets the following criteria:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 18 December 2023 at 1:42pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family support during medical operation – family medical issues – previous compliant family visits – offer of a security deposit – security situation in Lebanon – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.224, 600.611; r 4.21

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.

2. The applicant was represented in the review by registered migration agent 2217748.

   BACKGROUND

3. On 5 November 2023 the visa applicant applied for the visitor visa. She was offshore at the time the visa application was made.

4. On 17 November 2023 the delegate refused to grant the visa applicant the visitor visa on the basis that the visa applicant did not satisfy cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. On 30 November 2023 the review applicant applied to the Tribunal for review of the decision.

6. On 13 December 2023 the review was constituted to the Tribunal Member.

7. On 13 December 2023 Tribunal staff wrote to the review applicant and advised that the Tribunal could conduct the Tribunal hearing on 18 December 2023. The review applicant’s consent was required to hold the Tribunal hearing that day because it was earlier than the prescribed statutory period required for a hearing invitation: s 360A(4) of the Act, reg 4.21(4) of the Regulations. The review applicant subsequently consented to the Tribunal hearing being held as suggested by the Tribunal.

8. On 14 December 2023 the Tribunal wrote to the review applicant under s 360(1) of the Act and invited him to appear at a Tribunal hearing scheduled for 17 December 2023.

9. On 17 December 2023 the review applicant and visa applicant appeared at the Tribunal hearing. The representative also attended the Tribunal hearing. The Tribunal hearing was conducted via MS Teams which the Tribunal determined was appropriate in all the circumstances of the review. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Arabic languages.

   CRITERIA FOR THE GRANT OF THE VISA

10. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor). The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

11. The visa has several different streams. In the visa application form, the visa applicant identified that the visa applicant was seeking to satisfy the primary criteria in the tourist stream.

12. The delegate refused to grant the visa applicant the visa on the basis that the visa applicant did not satisfy cl 600.211 of Schedule 2 to the Regulations which provides the following:

    600.211 

    The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a)  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; and

    (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

    (c)  any other relevant matter.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The evidence consists of the contents of the visa applicant’s Department file, the review applicant’s Tribunal file, as well as the oral evidence provided at the Tribunal hearing.

14. According to the visa application form, the visa applicant is Ms Yasmin Al Rai, a female citizen of Lebanon who was born in EL Mina, Tripoli, Lebanon on 22 August 1984. She is presently located in Lebanon and identified that she resided in Bebnine, Aakkar, Lebanon. She provided a passport issued in her name under the authority of Lebanon on 25 November 2021 and valid for 10 years. At the Tribunal hearing, the visa applicant confirmed that she remained living at that address.  The review applicant told the Tribunal that he previously travelled to Lebanon in 2019 and stayed at the family home where his sister resides.

15. In the visa application form, the visa applicant declared that she would not undertake a course of study in Australia. She also declared that she would not undertake study or training for more than three months, indicated her understanding that if Condition 8503 was imposed on the visitor visa, it would limit her ability to remain in Australia beyond the authorised period of the stay of the visitor visa, agreed to leave Australia on or before the period of stay of the visa, and indicated her understanding that the visitor visa did not permit her to work in Australia.

16. She identified that she wished to stay in Australia for up to 3 months, with a planned arrival date of 1 December 2023 and departure date of 28 February 2024. She indicated that the reason for visiting Australia was a family visit. She declared that she is a Lebanese woman who has lived in that country all her life, and lives in that country with her siblings and their children. The visa applicant’s brother was identified as inviting her to Australia to spend time with him and his children and help with her brother’s daughter who is having surgery.

17. At the Tribunal hearing, the review applicant told the Tribunal that he would like the visa to be granted for the visa applicant to be in Australia from 15 January 2024 until 31 March 2024, which would coincide with a scheduled medical operation.

18. In the visa application form, the visa applicant identified that following family in Australia:

    ·     Her brother, Mr Mohamad Ahmad El Rahi, who was born on 8 January 1978 and was identified as an Australian citizen. Department records show that he was granted a provisional partner visa on 8 August 2015 and arrived in Australia holding that visa on 27 August 2005. He was subsequently granted a partner (migrant) visa on 27 March 2008 before becoming an Australian citizen on 28 August 2013. A copy of his Australian passport was provided. He is the review applicant.

    ·     Her nephew, Master Sulayman El Rahi, who was born on 9 November 2005 and was identified as an Australian citizen. He is the review applicant’s son.

    ·     Her niece, Miss Aesha El Rahi, who was born on 4 June 2008 and was identified as an Australian citizen. She is the review applicant’s daughter.

    ·     Her niece, Miss Fatime El Rahi, who was born on 11 August 2010 and was identified as an Australian citizen. She is the review applicant’s daughter.

    ·     Her nephew, Master Omar El Rahi, who was born on 4 September 2012 and was identified as an Australian citizen. He is the review applicant’s son.

    ·     Her nephew, Master Ahmad El Rahi, who was born on 11 August 2015 and was identified as an Australian citizen. He is the review applicant’s son.

    ·     Her nephew, Master Jibreel El Rahi, who was born on 11 August 2015 and was identified as an Australian citizen. He is the review applicant’s son.

19. In support of the purpose of the visa application, the delegate was provided with a psychological report of Kasim Abaie, who is a psychologist from Today Psychological and Consultancy Services dated 9 January 2023. The report indicated that the review applicant attended 12 appointments for psychotherapy and counselling from 30 August 2023. The report detailed that the review applicant has been the sole carer for his six children and had demonstrated symptoms of anxiety and depression due to previous marriage abuse, lack of support, the reliance of the children on him and the rejection of the visa applicant’s visa application. The report also noted the following, among other things:

    ·     The review applicant’s daughter, Aesha, suffers from severe scoliosis requiring urgent surgery and critical aftercare. The review applicant is concerned that if he is required to take this daughter into surgery, he has no family support to care for the five remaining children at home. She requires posterior spinal fusion surgery and requires multiple rods to be placed in her spine, which is a 5-to-6-hour surgery followed by ten nights post-operative stay in hospital and four weeks rest at home afterwards. She will require assistance to bathe and go to the toilet, and the review applicant would prefer a female to be able to assist her with the more intimate issues. A report of the Sydney Children’s Hospital dated 3 August 2023 was provided to support the content of the psychological report.

    ·     The review applicant’s daughter, Fatime, suffers from severe psoriasis affecting areas of her stomach, arms, back and scalp. Although the review applicant assists with many applications, he would rather a female assist his daughter with the application of creams.

    ·     The review applicant and the mother of their children met in 2004 and were together for 12 years before the relationship broke down. The review applicant was subjected to an Apprehended Violence Order (AVO) taken out by the mother of the children, which prevented him from seeing his children. It was suggested that during the time the AVO was in place, the children were neglected by their mother.

    ·     The report detailed that the review applicant has chest pains caused by stress, post-traumatic stress disorder and a major depressive order. He is experiencing back pain and recently underwent knee arthroscopy. As well as psychical problems of two of the children, the rest of the children had symptoms of depression and anxiety.

20. The delegate was provided a copy of Order 21/9/2022 made by the Federal Circuit Court and Family Division of Australia on 21 September 2022 between the review applicant and the mother of the children.

21. The order granted the review applicant sole parental responsibility for the children, required the children to live with the review applicant, ordering that the children spend no time with their mother, restraining the mother from removing the children from the care of their father or removing the children from school or removing them outside of the Sydney metropolitan area.

22. The order also dispensed with any requirement for the mother of the children to consent to any change of name with the Registry of Birth, Deaths and Marriages and dispensed with the requirement for the mother to consent to any new application by any of the children for a passport, as well as permitted the review applicant to sign or authorise any document concerning the children without the consent of their mother.

23. At the time of the Tribunal hearing, the surgery for Miss Aesha El Rahi was booked in for Friday 2 February 2024. A letter from the Sydney Children’s Hospital dated 9 November 2023 was provided confirming that the surgery was T4-T2 Posterior Spinal Fusion and Possible Thoracoplasty under the care of Dr Angus Gray.

24. In the visa application form, the visa applicant identified that she was employed from 8 December 2021 as a labourer at land owned by her brother. She identified the land as being located in Jwehra, next to Mustapha Hashem Area, next to said Market, Bebnine, Aakkar, Lebanon. At the Tribunal hearing, the visa applicant was asked how long she had been employed in this job and she said that it was a ‘long time.’ The Tribunal found this curious because two years is not what the Tribunal would assess as a long time. The letter from the Mayor of Bebnine which was provided in support of the visa application did not detail when the visa applicant had started this work and was dated 4 September 2023. At the Tribunal hearing, the Tribunal was told that the visa applicant had started work with her brother in 2016 and that the date 8 December 2021 had come from an earlier letter from the Mayor which was dated 8 December 2021 and provided in support of an earlier visa application.

25. The visa applicant told the Tribunal hearing that she was a Muslim, did not engage in any political activity, and had never experienced any harm in Lebanon due to her race, religion, nationality, membership of any group, or political opinion. She told the Tribunal that she was not seeking to use the visitor visa to come to Australia and not return to Lebanon.

26. The visa applicant declared that funding for her stay in Australia would be provided by her brother in Australia, who had over $20,000 in his bank account. The psychological report noted that the review applicant was unemployed. At the Tribunal hearing, the review applicant told the Tribunal that he had previously been a spray painter but now receiving government welfare as he was a homemaker who looked after his six children.

27. In the visa application form, the visa applicant identified that she was unmarried. She indicated that she did not have any members of their family unit not travelling with her to Australia who were not either Australian citizens or Australian permanent residents. This appeared at odds with what was written in the visa application form about the visa applicant having siblings and their children to return to in Lebanon. At the Tribunal hearing, the Tribunal was told that the visa applicant was not presently in a relationship and had not previously been married, and that the review applicant had not arranged for her to come to Australia to meet someone for the purpose of forming a relationship.

28. In the visa application form, it was identified that there were no ‘non-accompanying members of the family unit’ who were not travelling to Australia with the visa applicant (who were not Australian citizens or permanent residents). It therefore appeared to the Tribunal that the visa applicant and the review applicant were the only two siblings of their parents’ relationship. However, attached to the visa application form a family registration certificate which shows various siblings. It was submitted at the Tribunal hearing that the reason the siblings were not identified as members of the family unit was because they did not meet the definition of a family unit as provided by the Regulations.

29. The family registration statement showed that the review applicant and visa applicant are two of seven children. The remaining siblings (from eldest to youngest) are:

    ·     Ms Mariam Al Rai, who was born on 1 November 1972

    ·     Mr Ali Al Rai, who was born on 17 March 1975

    ·     Ms Hassna Al Rai, who was born on 8 January 1978

    ·     Mr Omar Al Rai, who was born on 27 July 1982

    ·     Ms Hanan Al Rai, who was born on 12 June 1988

    ·     Ms Achwak Al Rai, who was born on 16 April 1994

30. At the Tribunal hearing, the Tribunal was told all the siblings were citizens of Lebanon and reside in that country. The Tribunal was also told that Omar Al Rai had visited Australia twice and had not overstayed his visas or applied for visas to remain in Australia once he arrived in Australia. There is no evidence to contradict that claim.

31. In the visa application form, the visa applicant indicated that she had previously travelled to Australia and had applied for a visa to Australia. She declared that she had not previously overstayed a visa in Australia (or any country) and had never been removed, deported or excluded from Australia (or any country). She declared that she had a visa for Australia previously refused/cancelled.

32. According to Department records, the visa applicant was granted a visitor visa on 31 August 2012 and arrived in Australia on 21 September 2012 holding this visa which was valid until 21 December 2012. The conditions attached to that visa were Condition 8101, 8201, 8503 and 8531. The records show that the applicant departed Australia holding this visa on 16 December 2012. At the Tribunal hearing, the Tribunal was told that the visa applicant came to Australia to see the review applicant’s family and that she did not lodge any visa applications to remain in Australia during the period of this stay, and that she did not breach any visa conditions. There is no evidence on the Department’s records to suggest otherwise.

33. The delegate decision record does not detail the conditions that would be imposed on the visitor visa if it was granted. As the Tribunal understands it, the conditions that would be impose on the visitor visa is governed by cl 600.611(3) of Schedule 2 to the Regulations because the visa applicant was not sponsored for the visa in accordance with cl 600.224, and cl 600.611(4) does not apply. This provides that Condition 8101 and 8201 must be imposed, and conditions 8501, 8503 and 8558 may be imposed.

34. These conditions are as follows:

    8101    The holder must not engage in work in Australia.

    8201While in Australia, the holder must not engage, for more than 3 months, in any studies or training.

    8501The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

    8503The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

    8531The holder must not remain in Australia after the end of the period of stay permitted by the visa.

    8558The holder must not stay in Australia for more than 12 months in any period of 18 months.

    At the Tribunal hearing, the review applicant said he understood the conditions that would be imposed on the visa applicant as detailed above. This was consistent with the written submission provided by the representative on 15 December 2023, where the above conditions were specifically addressed. At the Tribunal hearing, the visa applicant was taken through those conditions and agreed to abide by them.

35. The visa application is not a sponsored visa. The review applicant told the Tribunal that in the event sponsorship was required by the delegate, he was prepared to do so. He told the Tribunal that he had not previously sponsored a person to come to Australia where that visa was granted. The review applicant indicated that in the event of sponsorship, and a security deposit was required to be provided by him, he would be prepared to do so for $15,000.00.

36. The Tribunal also considered the DFAT Country Information Report on Lebanon dated 23 June 2023, which provides that Lebanon’s security situation is uncertain due to conflict in neighbouring Syria, tensions between Hezbollah (which is part of the Lebanese Government) and Israel, terrorist threats from internal and external actors, and, occasionally, communal violence. The ability of authorities to provide state protection depends to a large degree on geographic area: several areas of Lebanon are not under the complete control of the state.

37. Lebanon acceded to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1997 but maintains reservations on several articles relating to personal status issues. Human Rights Watch reports that women continue to face discrimination under 15 distinct religion-based personal status laws. Discrimination in this fashion includes inequality in access to divorce, child custody, inheritance, and property rights.

38. DFAT assesses that Lebanese women face a moderate risk of official discrimination as the lack of a civil code for personal status issues means that women from of all religions are forced to abide by personal status codes that discriminate against them. Women also face a moderate risk of official discrimination in that inadequate legislation, lack of enforcement, and long-standing traditional values and gender roles continue to restrict their full participation in the workforce and community, particularly for women from rural and socially conservative communities. DFAT further assesses that women in Lebanon face a moderate risk of family and sexual violence; this risk increases for members of vulnerable communities including those in rural areas, conservative religious groups and in Syrian refugee communities.

    FINDINGS AND REASONS

1. The issue in the review is whether the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations.

2. If the Tribunal is satisfied that the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations, the correct or preferable decision is to set aside the decision of the delegate dated 17 November 2023 and remit the visa application back to the delegate for reconsideration, with a direction that the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations.

3. If the Tribunal is not satisfied that the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations, the correct or preferable decision is to affirm the decision under review.

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

5. 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

6. The evidence is that the visa applicant has previously travelled to Australia. The evidence is that the visa applicant departed Australia prior to her visitor visa expiring. There is no evidence that the visa applicant failed to comply with the conditions that attached to that visitor visa.

7. This demonstrated compliance with the past visa conditions is a factor that the Tribunal takes into account in favour of finding that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa would be issued.

   Whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject

8. The visa applicant declared in the visa application that she would not work, acknowledged that she may be required to pay for health insurance, acknowledged the effect of the imposition of a condition that would limit her ability to apply for further visas once in Australia, and indicated that she would not be engaging in any studies or training.

9. At the Tribunal hearing, the visa applicant was taken through the conditions that would be imposed on the visitor visa if granted and indicated her willingness to comply with those conditions.

10. The visa applicant’s willingness to comply with visa conditions is a factor that the Tribunal takes into account in favour of finding that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa would be issued.

    Any other relevant matter.

11. The Tribunal considered the review applicant’s migration history as well as that of his brother who came to Australia twice. This was relevant because if the review applicant came to Australia temporarily and remained in Australia because of safety concerns in Lebanon, this may raise questions about whether the visa applicant would do the same. Similarly, if the review applicant’s brother came to Australia on a visitor visa and sought to remain in Australia, it may suggest that the visa applicant would do the same. There is also no evidence to suggest that the remaining family in Lebanon have any concerns for their safety, as they all remain in that country.

12. The evidence is that the review applicant came to Australia on a spouse visa and that the review applicant’s brother came to Australia and departed. There is no evidence to suggest any family members have concerns for their safety in Lebanon as evidenced by the fact that family members have returned to that country after being in Australia. The lack of safety concerns is supported by the fact that the review applicant returned to Lebanon in 2019. The visa applicant gave oral evidence concerning whether she experienced any past harm in Lebanon and confirmed that she had not. She also confirmed that she was not using the visitor visa as a means to escape from Lebanon and not return to that country. The Tribunal is persuaded that there is no adverse migration history and that there is no evidence to suggest that the visa applicant is coming to Australia for any reason other than assisting her brother with the care of his six children and providing particular support to the child who will soon enter hospital.

13. Although the review applicant’s financial circumstances appear to be far from ideal because his only source of income is government support as a single parent with children, the Tribunal is not persuaded that the review applicant’s financial circumstances means that the visa applicant will be unable to support herself while in Australia. The evidence is that she will be living with the review applicant and his family and as the purpose of the visit is to provide support to the review applicant, the Tribunal’s assessment is that the visa applicant’s living expenses in Australia will be minimal and subsumed into the review applicant’s household expenses.

14. The DFAT Country Information report makes it clear that there are security concerns in Lebanon. However, the visa applicant’s oral evidence did not suggest that she had experienced any harm in that country. Further, the DFAT Country Information Report does not support a proposition that the security situation is so grave in that country that no person would return there.

15. The Tribunal’s assessment is that the visa applicant has significant ties to Lebanon, including involvement in a family business. While the Tribunal was initially sceptical about the visa applicant’s employment situation given the issue about when she started working at her brother’s business, the Tribunal was persuaded that there was no dishonesty in the start date for the employment being provided as 8 December 2021. The Tribunal accepts that the visa applicant has been employed by her brother for a long time as she described in her oral evidence.

16. While the visa applicant is not married and does not have children of her own, that does not mean that she will not return to Lebanon at the conclusion of her visit in Australia. The balance of her family are there and the visa applicant has demonstrated a past desire to return to them as evidenced by the fact that she has previously come to Australia and returned to Lebanon.

    CONCLUSION

17. Considering all the evidence that has been provided in support of the visa applicant’s intention to stay temporarily in Australia, the Tribunal is satisfied that the visa applicant’s purpose in coming to Australia is to provide support to her brother who is a single father of six children, one of whom will be receiving surgery in February 2024. There is no evidence to suggest that the visa applicant will do anything other than come to Australia and provide the support suggested and then return to Lebanon at the conclusion of her visit.

18. Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

19. Therefore, the visa applicant satisfies cl 600.611 of Schedule 2 to the Regulations.

20. Any residual concerns that the delegate may have can be adequately addressed by requiring the review applicant to sponsor his sister for the visa and impose a security deposit in the amount identified by the review applicant at the Tribunal hearing.

    DECISION

21. The Tribunal sets aside the decision made on 17 November 2023 refusing to grant the visa applicant a Visitor (Class FA) visa, and remits the visa back to the delegate for reconsideration with the direction that the visa applicant meets the following criteria:

    · cl 600.211 of Schedule 2 to the Regulations.

    Nathan Goetz

    
    

    Member