Elbeden (Migration)

[2017] AATA 631

Elbeden (Migration) [2017] AATA 631 (27 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohmoud Elbeden

VISA APPLICANT:  Mr Houssam Elbodon

CASE NUMBER:  1701217

DIBP REFERENCE(S):  BCC2016/3868234

MEMBER:Di Hubble

DATE OF DECISION:  27 April 2017

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; and

·cl.600.224(1) of Schedule 2 to the Regulations.

Statement made on 27 April 2017 at 6:43pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Only 19 days approved leave – Offer of security bond – Family members departed Australia within time – Sponsorship requirement – Political, security and economic conditions in Lebanon – Easing of sectarian conflict – Family incentives to return

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 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 14 December 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 November 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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). 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 his expressed intention to merely visit Australia is genuine.

4. The review applicant, who is the visa applicant’s brother, sought review of the delegate’s decision on 24 January 2017.

5. The review applicant appeared before the Tribunal on 27 April 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. In answer to the Tribunal’s questions the review applicant stated that:

   • He and his family are Sunnis and come from Al Qalamoun, a town on the Lebanese coast in between Tripoli and Beirut;

   ·His dad passed away last year but his mum is alive and living in Tripoli, along with his 2 brothers and 3 sisters, all of whom are married and have, between them, 18 children, including Houssam who is married with 3 children aged 3, 4 and 5;

   ·He also has 2 uncles on his father’s side, who both live in Tripoli.  He has 2 uncles on his mother’s side, 1 of whom lives in Tripoli, whilst the other has been living in Sydney with his wife for over 25 years;

   ·Houssam has previously travelled to Cyprus and Turkey.  He had a holiday in Turkey last year and the year before that he holidayed in Cyprus. As he has 3 small children, Houssam’s wife and children stayed at home and he travelled with a cousin;

   ·His (the review applicant’s) wife was born in Australia and she brought him here on a partner visa around 20 years ago.  They have 5 children;

   ·His father and mother came to Australia on visitor visas in 2011.  Another brother, Bilal, also came on a visitor visa in 2010.  Bilal’s wife and children remained in Lebanon during his visit.  His grandmother also visited Australia 9 to 10 years ago;

   ·Since his dad passed away Houssam has been working 15 hours per day and he needs a holiday.  As he (the review applicant) is the eldest son and Houssam is the youngest, Houssam looks at him as his father and he wants to come and see his family;

   ·Houssam works for Pepsi in Tripoli as a Customer Sales Representative.  He earns 1,600,000 Lebanese pounds per month, which is around $1,500 AUD per month.  He has $15,000 USD in savings;

   ·Houssam applied for 3 months leave but Pepsi only approved 19 days;

   ·He (the review applicant) has his own panel beating business, Perfect Smash Repairs, and last year he earned approximately $80,000.  He owns his own home in Altona North, where Houssam will stay during his visit, as well as a farm.  He has more than $100,000 in savings;

   • He would be willing to sponsor Houssam’s visa application and is prepared to offer a security bond of $10,000 to guarantee that Houssam will comply with his visa conditions and return to Lebanon at the end of his stay.

7. The Tribunal then put the following country information to the review applicant for his comment:

   ·The most recent DFAT “Smart Traveller” report, issued in April 2017, strongly advises Australians not to travel to Tripoli and northern Lebanon, north of a line from Tripoli to Sir Ed Dinniyeh and Arsal due to ongoing clashes between Lebanese security forces and militants in the region.  Lebanese authorities assess that a number of the extremists have sought refuge in northern Lebanon including throughout the Akkar district.

   ·As an example of this, according to the Daily Star in December 2016 the Lebanese Army arrested members of a sleeper-cell in north Lebanon that had been planning a shootout followed by a suicide attack during the holiday season…  The army had obtained information on a militant cell operating in the northern city of Tripoli at the behest of fugitive extremist suspect Shadi Mawlawi.  The cell's plan was allegedly to target a gathering, first with rocket-propelled grenades, hand grenades followed by heavy gunfire.  A suicide bomber had planned to then detonate himself when bystanders and medics gathered to aid the wounded.  [Shadi Mawlai] … is wanted for his alleged links to the perpetrators of a Jan. 10 double suicide bombing in the Jabal Mohsen district of Tripoli that killed at least 9 people and wounded more than 30.  “Lebanese Army averts mass holiday attack”, The Daily Star, 31 December 2016.

8. Invited to comment, the review applicant said that it was really unfortunate what is happening in Tripoli.  However, none of his family is involved in politics.  Houssam has children and is busy with his family’s life.

9. The Tribunal noted that in addition to security risks in Lebanon, there is an economic overlay because the north of Lebanon is impoverished.  For example, in July 2016 it was claimed in the Daily Star (July 5 2016) by a professor of political science and international affairs at the Lebanese American University, Imad Salamey, that the government is largely absent from many Sunni-populated areas in the north, and the Sunni population in those areas is affected by underdevelopment and is largely ignored. 

10. Invited to comment, the review applicant agreed that the Tribunal was right; Lebanese people have been affected by this.  However, Houssam has social security insurance for his wife and children and Pepsi is paying him 2 million Lebanese pounds for the children’s education; so he’s well-established.  His family are all doing fine. 

11. During the hearing, the Tribunal obtained the departmental movement records for the review applicant’s mother, Hiam Mallouhi, and his late father, Ahmad El Boden, which indicate that they were granted Subclass 676 Tourist visas on 1 September 2011, valid until 10 December 2011.  They both arrived in Australia on 10 September 2011 and they departed on 10 December 2011.

12. The Tribunal also obtained the departmental movement records for the review applicant’s brother, Bilal El Bodon, which indicates that he was granted a Subclass 679 Sponsored Family visa on 11 March 2010, valid until 28 July 2010.  He arrived in Australia on 28 April 2010 and he departed on 15 June 2010, prior to the cessation of his visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 he has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by him was subject (cl.600.211(a)); whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)); and any other relevant matter (cl.600.211(c)). 

14. The visa applicant seeks the visa for the purpose of a short family visit.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Discretionary sponsorship requirement in Tourist stream: cl 600.224

15. The sponsorship requirement in the Tourist stream applies only if the applicant intends to visit certain kinds of relatives, and if the Minister has required the applicant (and each other applicant who is a member of the applicant’s family unit, or in relation to whom the applicant is a member of the family unit) to be sponsored by a specified Australian relative under cl.600.224(1). This capacity of the Minister to request sponsorship is intended to provide additional flexibility in relation to applicants who may otherwise not meet the visa criteria (see Explanatory Statement to SLI 2013, No. 32, p.18).  One effect of requiring sponsorship is to engage the security requirement criterion in cl.600.225.

16. Although the delegate has not required a sponsorship under cl.600.224 in this instance, the review applicant indicated to the Tribunal that he is willing to sponsor the visa applicant and to provide a $10,000 security bond in order to ensure his brother’s compliance with the conditions attaching to his visa.  The Tribunal has discretion to require a sponsorship in accordance with cl.600.224(1) and, in the circumstances of this case, considers it appropriate to do so.  On that basis, the Tribunal finds that the visa applicant meets cl.600.224(1). 

17. The Tribunal will leave it to the review applicant to make arrangements to provide the sponsorship, as required to meet cl.600.224(2), and the Department upon remittal to consider whether to approve the sponsorship as made (cl.600.224(3)). 

18. Having determined to require the visa applicant to be sponsored, the Tribunal must now consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

19. However, as the visa applicant has never previously held an Australian visa cl.600.211(a) is not relevant. 

20. 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:

    ·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.

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

22. In assessing cl.600.211(b) and (c), the Tribunal acknowledges the adverse DFAT country information referred to by the delegate, and the country information the Tribunal put to the review applicant for his comment, which suggests that prevailing political, security and economic conditions in Lebanon constitute very strong disincentives to return.  

23. The visa applicant lives in Al-Qalamoun, which Wikipedia describes as, “A Mediterranean seaside town of the North Governorate of Lebanon in the Tripoli District.  The town is 5 km south of Tripoli and is also the first town south of Tripoli”.  The Tribunal was unable to locate any adverse country information particular to Al-Qalamoun.

24. Relevant country information suggests that the security situation in nearby Tripoli has improved significantly since 2014.  Specifically, the Department’s Issues Paper on the Security Situation in Northern Lebanon (Country of Origin Information Services Section, 9 November 2016) indicates that although there is a long history of sectarian conflict in Tripoli between Alawites living in Jabal Mohsen and Sunnis living in Bab al-Tabbaneh, in 2014 the Lebanese government successfully implemented a security plan involving the deployment of around 1,800 Lebanese army and security forces in Tripoli which resulted in approximately 40 raids and the arrest of 43 local militia leaders and fighters.  Furthermore, although there was a suicide bomb attack in Jabal Mohsen in January 2015, the security situation in Tripoli has since largely stabilised.  Accordingly, the Tribunal is unaware of any current adverse country information that is specific to the general area that the visa applicant lives in.

25. The Tribunal acknowledges that the presence of the review applicant and his family in Australia would provide some incentive for the visa applicant to overstay his visa.  However, the Tribunal considers there are many other factors, that will increase the visa applicant’s incentive to return to Lebanon in a timely fashion after visiting Australia, including the fact that his wife and 3 young children will remain in Al-Qalamoun during his visit to Australia, as will his recently widowed mother, 2 brothers, 3 sisters, their many children and a large extended family comprised of several uncles and many cousins.  The Tribunal also places weight on the fact that the visa applicant has been employed by Pepsi as a Customer Sales Representative since September 2014 and earns, by local standards, a decent wage.

26. Although the visa applicant has never been to Australia, he recently holidayed in both Cyprus and Turkey.  The Tribunal also places significant weight on the fact that the visa applicant’s brother, Bilal, had a compliant visit to Australia in 2010 and his parents subsequently had a compliant visit in 2011.

27. Finally, the review applicant is a successful self-employed panel beater with a good income who will host the visa applicant at his family home.  In the circumstances, the Tribunal places significant weight upon the fact that the review applicant has agreed to sponsor his brother and has offered to provide a $10,000 security to guarantee his compliance with his visa conditions.

28. 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

29. 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; and

    ·cl.600.224(1) of Schedule 2 to the Regulations.

    Di Hubble
    Member