Jaber (Migration)

[2017] AATA 1920

Jaber (Migration) [2017] AATA 1920 (10 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zeid Jaber

VISA APPLICANT:  Mr Ali Jaber

CASE NUMBER:  1703570

DIBP REFERENCE(S):  BCC2016/4241558

MEMBER:Tania Flood

DATE:10 October 2017

PLACE OF DECISION:  Sydney

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.

Statement made on 10 October 2017 at 11:20am

CATCHWORDS

Migration – Visitor (Class FA) Visa – Subclass 600 (Visitor) – Genuine intention to stay temporarily – Visiting relatives - No adverse Migration history – Incentive to return – Sectarian violence in home country

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211. 600.212, 600.231, Schedule 8, cl 8101, 8201, 8503, 8531

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 21 January 2017 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 12 December 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 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 she was not satisfied the applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 20 September 2017 to give evidence and present arguments. 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 matter should be remitted for reconsideration.

   BACKGROUND

7. The visa applicant was born on 22 February 1994 in Chiah, Beirut, Lebanon.  He is the youngest of four children.  His parents reside in Lebanon.  All his siblings are living in Australia.  He has worked as an Electrician for four years in the Dibbieh area in South Lebanon.

8. The review applicant is an Australian permanent resident.  He is the visa applicant’s brother.  He is a Motor Mechanic Supervisor.

   TRIBUNAL HEARING

9. The review applicant appeared before the Tribunal on 20 September 2017.  He provided the following information:

10. He is an Australian permanent resident on his second marriage to an Australian citizen.  He has one daughter from his previous marriage and two daughters from his current marriage.  He and his wife are currently awaiting the birth of their third child.

11. He has worked as a Mechanic, on and off with the same employer, BP Granville Workshop, for several years.  His employment has been interrupted at times for various reasons including for health reasons. 

12. His grandparents, two aunts and an uncle, and his sister and brother live in Australia.  His sister is married with four children and his brother is also married with two children.  He also has one brother living in Lebanon.  His mother and father live in Lebanon and his mother is currently on holiday in Australia.  She has visited Australia several times.

13. The visa applicant is his brother.  He lives with his parents in Chiah, Beirut which is a mixed neighbourhood although the majority of the residents are Shia Muslims as are his family.

14. He was last in Lebanon in 2013 and the situation in his neighbourhood was not bad.  Like anywhere else there can be attacks and explosions sometimes.  His brother is not overly affected by the situation.  He is not involved in any political or religious groupings.

15. He cannot afford to travel to Lebanon with his whole family and he would not be permitted to take his daughter from his first marriage out of the country.  His brother wants to visit Australia for one month to see the sights and to spend time with the family.

16. His brother has worked as an electrical contractor for about three or four years. 

17. His brother has not travelled outside Lebanon before and as far as he is aware has never been refused a visa before.

18. He will pay for his brother’s travel to Australia and he will reside with him during the visit.  He will not work or study during the visit.

19. His brother will return to Lebanon after the visit because he is the only remaining child living in Lebanon who is available to take care of their parents.  His parents have no desire to live in Australia.  He previously discussed this option with them but they refused.  Their parents are about 68 and 60 years old respectively and all the extended family live in the same building.  While there are other relatives close by it is the duty of the children to take care of their parents.

20. He is prepared to pay a security bond to facilitate the grant of the visa.

21. The Tribunal made several attempts to take evidence from the visa applicant via telephone however the connection was not successful.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

24. 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)).

25. The Tribunal has considered the migration history of relevant family members.  The review applicant first entered Australia on 20 October 2000 as the holder of a Visitor visa.  He departed Australia before his visa ceased.  He returned to Australia on 11 April 2001 as the holder of a Prospective Marriage visa.  On 21 July 2003 he was granted a Partner visa.  He remains in Australia as the holder of a BB-155 Five Year Resident Return visa.

26. The review applicant’s brother and sister both entered Australia on Prospective Marriage visas.  His brother was granted a Partner visa on 16 November 2006 and he obtained Australian citizenship on 13 October 2009. The review applicant’s sister was granted a UK-820 Partner visa on 4 March 2004 and a BS-801 Partner visa on 6 January 2006.  On 23 November 2012 she was granted a TA-773 visa and remains in Australia lawfully on a BB-155 Five Year Resident Return visa.

27. The review applicant’s mother has visited Australia three times on 9 August 2009; 8 December 2014 and 21 July 2017.  She currently remains in Australia and her visa will cease on 21 October 2017.

28. 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.

29. The review applicant has provided proof of employment and savings and submits he will pay for the travel and living costs for his brother’s proposed visit to Australia and accommodate him for the duration of his stay.  The review applicant indicated his brother would like to visit Australia for one month as does a letter from the visa applicant’s current employer which confirms that leave to travel will be granted for one month.  On the evidence before it, the Tribunal is satisfied the visa applicant will not work while visiting Australia.  Similarly, the Tribunal is also satisfied he will not engage in study or training while visiting Australia for one month.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if the visa is granted.

30. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

31. The Tribunal acknowledges the visa applicant is a young, unmarried man without any dependents.  The Tribunal also acknowledges the Delegates concerns that the balance of the visa applicant’s immediate family members are residing in Australia as opposed to his parents who reside in Lebanon.  That said, the Tribunal accepts the visa applicant is the only remaining child living in Lebanon and the only member of the immediate family who can provide care and support to his parents.  While the Tribunal notes the visa applicant’s mother is currently in Australia her visa will soon cease and there is nothing before the Tribunal to support she will remain in the country beyond the end of her visa.  This is supported by her previous migration history which is outlined above.  The Tribunal is satisfied that the visa applicant’s parents provide an incentive for him to return to Lebanon at the end of his visit. 

32. The Tribunal notes the visa applicant is a Shia Muslim and has therefore had regard to country information regarding the risk of individuals being caught up in sectarian violence in Lebanon.  According to a DFAT Thematic Information Report on Sectarian Violence in Lebanon (18 December 2013) such risk is dependent on geographic location and confession.  DFAT reports that Lebanon’s capital, Beirut, has a population of approximately 1.9 million, including substantial populations of Christians, Sunnis and Shias.  The city has both sectarian enclaves and mixed suburbs.  These mixed suburbs and the demarcation lines between sectarian enclaves are occasionally subject to sectarian fighting.  Lebanese security forces, supported by political and community leaders, have generally been able to contain sectarian violence in mixed suburbs and along demarcation lines of Beirut in 2013.  Beirut’s southern suburbs, in which the visa applicant lives, are primarily inhabited by Lebanese Shias.  Security in the area is dominated by Hizballah.  Given Hizballah’s effective security apparatus, levels of crime tend to be lower than elsewhere in Beirut.  Violence has been recorded in Chiah in 2013 and Sunni extremist groups are generally blamed for the attacks.  DFAT assesses that Shias living in the southern suburbs of Beirut are at a medium risk of sectarian violence from bomb and rocket attacks.

33. According to the review applicant Chiah is a mixed suburb although the majority of the population are Shia. This accords with the above information.  While occasional violence in the area is acknowledged the review applicant has stated that his brother has not been personally affected by it and he is not involved with any political or religious groups.    In considering whether the security situation in the applicant’s local area is a disincentive for him to return home at the end of his visa the Tribunal finds it significant that the available evidence, including a copy of a letter from his employer, shows that the visa applicant has been in stable employment as an Electrician for four years earning USD900 per month.  The evidence shows that the applicant’s place of work is in Southern Beirut and the fact he has been able to maintain uninterrupted employment suggests a level of stability despite the propensity for violence in the area.  The Tribunal finds the visa applicant’s lack of political or religious involvement is likely to lower his risk of being caught up in acts of sectarian violence.  The Tribunal has also placed weight on the fact the visa applicant’s mother has travelled to and from Lebanon on several occasions and has always returned to the local area.  On balance, the Tribunal is satisfied that the security conditions in the visa applicant’s local area will not cause him to seek to remain in Australia permanently.

34. The Tribunal considers it reasonable the visa applicant would want to travel to Australia for one month to visit his siblings and to meet their children. As can be seen from the information outlined above, there is no adverse family migration history to consider and the Tribunal has no reason to conclude that the visa applicant will not comply with the conditions of his visa. 

35. The Tribunal has also placed weight on the review applicant’s willingness to pay a security bond in order to facilitate the grant of the visa.

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

37. 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

38. 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.

    Tania Flood
    Member