Haddara (Migration)

[2019] AATA 4264

Haddara (Migration) [2019] AATA 4264 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Haddara

VISA APPLICANT:  Mr Abdallah Haddara

CASE NUMBER:  1808347

HOME AFFAIRS REFERENCE(S):           BCC2018/394312

MEMBER:Brendan Darcy

DATE:31 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2019 at 9:05am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream–genuine temporary stay criterion –no immediate dependants–low paying job in home country – economic and security situation in Akkar – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 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 Immigration on 22 February 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 visa applicant applied for the visa on 23 January 2018. 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 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 the applicant genuinely intended to stay in Australia on a temporary basis.

5. The review applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant who gave evidence via a teleconference facility.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   Background

7. The review applicant was born in Lebanon on 6 November 1989. He first came to Australia on a prospective marriage visa in 2012. He was granted a permanent onshore protection visa on 17 February 2016 and has recently been granted Australian citizenship. The visa applicant, born in Lebanon on 29 May 1987. With his immediate and extended family, the visa applicant currently resides in Zouk Hadara in Akkar governorate in Lebanon.

8. The applicants claim to be biological brothers sharing the same biological mother and father.

9. The visa application was refused on 23 January 2018. When the applicants applied for the refusal decision to be reviewed on 27 March 2018, a copy of the decision record was attached to the review application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his biological brother and his family residing in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. As the visa applicant has never visited Australia, the Tribunal does not place any weight on this matter as relevant to its decision making.

14. 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.

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

16. As discussed in the hearing, the Tribunal does not draw any adverse inference from the review applicant’s migration history as there is no evidence that he has any history of non-compliance with Australia’s migration laws.

17. The Tribunal also notes that the visa applicant has not travelled internationally in the past. It also notes that the review applicant recently visited Lebanon indicating to the Tribunal that the visa applicant did not have any compelling reason to visit Australia due to a long period of estrangement.

18. The visa applicant claimed that he has been married in the past and divorced in 2017. He does not claim to have any dependants arising from this spousal relationship or any other relationship. While he claimed to be in love with a woman in Lebanon, he did not advance that he was engaged to be married. The applicants however elaborated during the hearing that the visa applicant is the eldest son of a large Sunni family and, as such, he has culturally significant expectations to care for his parents and siblings that represents a considerable incentive for him to only remain temporarily in Australia and not to seek to be remain in Australia on an indefinite basis. (The visa applicant also claimed to live separately from his parents, albeit within the Zouk Haddara vicinity).

19. With regard to the visa applicant’s economic situation, the applicants claimed that he earns about 1.2 million Lebanese lira (or about the equivalent to 1200 Australian dollars) from employment as a supervisor within his local municipal government. They also added that his father and uncle earn farm income which contributes to the family’s overall income. As discussed in the hearing, the Tribunal assesses the visa applicant does not earn a significant amount of money, even taking into account the broader family income. Furthermore he resides in one of the poorest parts of Lebanon. These factors appears to be a strong financial incentive for the applicant to either undertake unlawful remuneration in Australia or seek to remain in Australia on an indefinite basis.

20. Country information about the economic and security situation within the northern part of Lebanon, including Akkar, was put to both of the applicants. Specifically the Tribunal outlined that that in the last decade or so there has been no serious violence incidents between the religious Sunni, Christian and Alawite communities. While the Tribunal acknowledged there have been no serious incidents or security deterioration since 2015, the fact remains the underlying tension between the religious communities continues to simmer and is exacerbated by the negative impact of Syrian refugees displaced in northern Lebanon.  Furthermore the Tribunal outlined to the applicants that northern Lebanon, and Akkar governorate in particular, has high levels of poverty compared to the rest of Lebanon. The applicants insisted that the visa applicant belongs to a community in mountainous Akkar where there is no sectarian or religious or political strife and where Christians and Sunnis respect each other and their religious leaders.

21. Even when accounting for those favourable incentives for the visa applicant to depart in a timely manner, including his family responsibilities as the eldest son, the fact remains that the security and economic situation in Akkar governorate remains relative deprived and unpredictable. The visa applicant’s residency in Akkar represents a significant incentive for the visa applicant to remain in Australia at the end of the visitor visa period, if it were granted. This view is further consolidated when considering the applicant does not have any immediate dependants of his own and whereby he does not have any immovable assets of his own.  Furthermore the visa applicant is not highly skilled and only earns a modest income from the municipal government that employs him which increases the incentive for the applicant to breach conditions of his visa.

22. In short, the Tribunal finds that the applicants have insufficiently demonstrated to it that the visa applicant intends to depart Australia within the validity of this visitor visa, if it were to be granted. 

23. While the Tribunal has taken into consideration all the available information, its evaluation is considerably reliant on the current and available country information.  Decision makers should maintain an open mind if the applicants were to make a further visitor visa application in the reasonably foreseeable future as it is possible that security and economic situation in northern Lebanon not only remains stable but notably improves.

24. For the above reasons the Tribunal is not 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 not met.

    DECISION

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

    Brendan Darcy
    Member