Hawli (Migration)

[2023] AATA 2714

Hawli (Migration) [2023] AATA 2714 (9 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Hawli

VISA APPLICANT 1:  Mr Ali El Hawli

CASE NUMBER:  2308015

HOME AFFAIRS REFERENCE:               BCC2023/3055541

VISA APPLICANT 2:  Mrs Fatima El Hawli

CASE NUMBER:  2308017

HOME AFFAIRS REFERENCE:               BCC2023/3055549

MEMBER:Paul Windsor

DATE:9 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that each 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 09 August 2023 at 12:12 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – political and security situation in Lebanon – support during review applicant’s family illness – balance of family in Lebanon – offer to provide a security bond – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

STATEMENT OF DECISIONS AND REASONS

APPLICATIONS FOR REVIEW

1. This is a joint statement of decisions and reasons for two review applications in relation to decisions made by a delegate of the Minister for Home Affairs on 7 June 2023 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 1 June 2023. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 (Cth) (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 visas on the basis that the visa applicants did not meet cl 600.211. In her decision records, the delegate indicated that, having considered the personal circumstances of the applicants against the current economic, political and security situation in Lebanon, she was not satisfied the applicants had provided evidence of financial, employment and/or personal ties which would demonstrate their incentive to abide by the conditions of the visa, if granted, and depart Australia at the end of their authorised temporary stay period.

5. The review applicant, who is the son of the visa applicants, sought review of these decisions on 7 June 2023.  He provided the Tribunal with copies of the delegate’s decision records.

6. With the consent of the review applicant, the review applicant appeared before the Tribunal on 8 August 2023 in a combined hearing to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants by telephone from Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. The review applicant’s authorised recipient also attended the hearing.

8. For the following reasons, the Tribunal has concluded that the matters should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that a 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.

10. In the present case, the visa applicants sought the visas for the purposes of visiting their son, the review applicant, his wife and their children. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

11. Significantly in this case, the review applicant wants his parents to visit Australia for three months as soon as possible to provide support to him, his wife and their four children aged 3, 7, 10 and 13 years.  This is because his wife is suffering a psychological illness following the death of her mother from COVID-19.  Letters of support from the General Practitioner and Consultant Psychiatrist treating the review applicant’s wife indicate that she began to suffer symptoms of anxiety and depression in October 2021 following her mother’s death.  She has been diagnosed as suffering Generalised Anxiety Disorder and Major Depressive Disorder and experiences excessive or constant worry that interferes with her functioning, becomes easily fatigued, has trouble concentrating, has crying spells and experiences heavy sadness.  She is taking anti-depressant medication and seeing a psychologist as well as the Consultant Psychiatrist. The General Practitioner comments that her symptoms worsened recently when her son underwent an operation.

12. The review applicant runs his own small business selling children’s toys and has indicated, and the Tribunal accepts, that he is finding it extremely difficult to manage his business, care for his four children and support his wife to assist her recovery from the severe mental health condition she is suffering and which is impacting their children. While he has indicated that he also has three brothers living in Victoria, he states they have their own work responsibilities and families and are not able to provide the support he needs.  He is desperate to have his parents come to support him and his family at this time.

13. 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)).

14. The review applicant’s father has travelled to Australia on one previous occasion.  He arrived on 17 October 2001 on a Class TN Tourist visa (subclass 686) valid for a stay of three months.  When asked at the hearing if he departed Australia within the stay period authorised by this visa, the review applicant’s father indicated that he overstayed the visa for a period because he had thought it was for a stay of six rather than three months.  Departmental records indicate that he departed Australia on 30 March 2002, approximately one and a half months after the visa ceased on 17 January 2002.  The Tribunal accepts the visa applicant’s explanation for departing after the expiry period of this visa and does not give significant weight to this factor in considering whether he now intends to remain in Australia temporarily, if granted the visa.

15. As the visa applicant’s mother has not travelled to Australia previously, cl 600.211(a) is not relevant in her case.

16. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas 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.

17. The review applicant’s father and mother are aged 73 and 69 years respectively.  The Tribunal does not consider that either of them has any interest in working or engaging in study or training in Australia.  The Tribunal is satisfied that they wish to visit Australia to assist and support their son, his wife and their four children at this very difficult time.

18. The Tribunal discussed with the review applicant and the visa applicants the implications of conditions 8503 and 8531 - that they would not be able to extend their stays in Australia.  The review applicant and the visa applicants assured the Tribunal that they understood the implications of conditions 8503 and 8531 and would not breach these conditions.

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  The Tribunal discussed with the review applicant and the visa applicants advice drawn from the current Department of Foreign Affairs and Trade (DFAT) Country Information Report on Lebanon in relation to the extremely challenging economic, political and security environment in Lebanon at the moment.[1]

    [1] DFAT Country Information Report, Lebanon, 26 June 2023.

20. The DFAT report indicates that, since 2020, Lebanon has experienced a severe economic crisis and states that the country is experiencing severe economic depression. Gross Domestic Product (GDP) peaked in 2019 at USD54.9 billion then fell sharply to USD23.1 billion in 2021, according to World Bank figures.  Those using US-dollar denominated accounts have had their savings locked or devalued, alongside a severe devaluation in the Lebanese Pound (LBP).  Long-running public debt has become unsustainable. International media reports estimate that about a third of the labour force is unemployed.  In-country sources told DFAT that significant competition between Lebanese and Syrian refugees, even for unskilled jobs, has heightened tensions between the two communities. Poverty rates have doubled since 2019, affecting 82 per cent of the population, according to a UN study,  although the World Bank believes this figure is exaggerated and it is now conducting its own study which it believes will show a figure around 50 per cent.  There is little in the way of social welfare.

21. In relation to the political situation, the DFAT report indicates that, on 31 October 2022, President Michael Aoun completed his presidential term. As at publication, the country’s parliamentarians, divided along sectarian lines, had failed to elect Aoun's successor, despite 10 rounds of voting (as at January 2023).  The most recent parliamentary election was held in May 2022.  Former Prime Minister Najib Mikati was reappointed as Prime Minister-designate in June 2022 and tasked to form a Cabinet, which required the President’s approval. This did not occur before the end of President Aoun’s term, and as at publication, Lebanon remains under a caretaker government.  The August 2020 port explosion has had lasting social and political consequences. Many Lebanese saw the apparent negligence in allowing the unsafe storage of massive amounts of dangerous chemicals as symptomatic of Lebanon’s corrupt and fractious political settlement.  Immediately after the blast, the government promised that those responsible would be swiftly brought to justice, however the investigation remains stalled.  In-country sources told DFAT that the blast and its consequences had been the ‘last straw’ for many Lebanese already dealing with widespread corruption and an economic crisis, causing them to lose hope of prospects for reform and increasing their appetite for migration.

22. In relation to the security situation, DFAT comments 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.

23. The Tribunal commented that the economic, political and security situation in Lebanon appears to be dire and invited the review applicant and the visa applicants to comment on why the Tribunal should be satisfied that they would return to Lebanon within the period of stay authorised by the visas, if granted.

24. The review applicant assured the Tribunal that his parents would return to Lebanon, commenting that his father is elderly and has spent all his life in Lebanon, has land and property there that mean a lot to him, and is well-off by Lebanese standards and does not need to stay in Australia.  He assured the Tribunal that his parents only wish to come to Australia to help him with his wife and children because of his wife’s mental health condition.

25. The review applicant’s father and mother commented that they have money, land, and property in Lebanon and are not seeking the visas because they wish to remain in Australia but because they wish to support their son and his family.  The review applicant’s father indicated they have five married daughters and 12 grandchildren who live in their village (Mechmech) who are part of their lives in Lebanon.

26. The review applicant commented that he indicated to the Department that he was willing to provide a security if necessary to secure the visas and understood he would lose that money if his parents overstayed the visas, if granted.  He commented that he is prepared to do this because he is sure his parents will comply with the conditions of the visas and will depart within the allowed stay period.  He also commented that he wants them to comply with the conditions of the visas so that they might be able to come to Australia again in the future.

27. The Tribunal has also considered that the visa applicants are both elderly. The documentary evidence provided supports a finding that they are retirees who support themselves through their assets, which consist of properties including orchards, residential apartments and a trading store, in Mechmech and in Tripoli, that return income.  They have foreign cash assets that are not held in a bank in Lebanon due to the fragility of the banking system there.  Notwithstanding the very difficult economic situation in Lebanon currently, the Tribunal finds that the visa applicants are relatively well insulated against the hardship many are facing in Lebanon. The Tribunal accepts that, while the visa applicants have four sons and grandchildren in Australia, their five daughters and grandchildren in Mechmech Lebanon provide a strong personal tie to that country.

28. After carefully considering all the available evidence, and noting the compassionate circumstances present in this matter, the Tribunal is satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted, and finds that the requirements of cl 600.211 are met in their cases.

29. Given the circumstances in this matter, the Tribunal recommends that consideration be given to granting the visa applicants stay periods of six rather than three months.

    DECISION

30. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that each visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Paul Windsor
    Member