KHALED (Migration)

[2024] AATA 3643

KHALED (Migration) [2024] AATA 3643 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr ZIAD KHALED

VISA APPLICANT:  Mr AHMAD KHALED

CASE NUMBER:  2308634

HOME AFFAIRS REFERENCE(S):          BCC2023/1930797

MEMBER:Anne Grant

DATE:1 October 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2024 at 2:00pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant getting married in Lebanon – employment and property in home country – security situation in Lebanon – decision under review affirmed          

LEGISLATION

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

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 Home Affairs on 12 April 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 24 March 2023. 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 (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 visa on the basis that the visa applicant did not meet cl 600.211 because they were not satisfied that the visa applicant was a genuine temporary visitor to Australia.

5. The review applicant appeared before the Tribunal on 20 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant  who participated by telephone, and briefly from the sponsor’s brother and sister, (the visa applicant’s Aunt and Uncle) who also attended the hearing. 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 affirmed.    

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

9. 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)).

10. The visa applicant has never held a visa to visit Australia or travelled to the country.  He gave evidence that he travelled on holiday to Türkiye once in October 2022, and no visa was needed.  He complied with Turkish law in that visit and returned home at the end of his holiday. 

11. The sponsor gave evidence that he has not previously sponsored any visitors to Australia.  He himself first came to Australia on a sponsored visitor visa and applied for a protection visa onshore. 

12. In the circumstances of this case, very little weight can be given to the limited travel experience of the visa applicant or his compliance with country requirements on his visit to Türkiye.

13. I do give some positive weight can be given to the review applicant’s history of compliance and the fact that he is now an Australian citizen.  There is no suggestion in this case that he has failed to comply with the conditions of any visa held.  The review applicant’s brother attended the hearing and advised that he is a long time Australian resident, having arrived on a sponsored partner visa and has complied with the conditions of his visas.  He had actually previously sponsored the review applicant who complied with the conditions of that visa.  I give the family members’ history of compliance with visas a little weight in this case as suggesting that the visa applicant will comply with the conditions of a visa, if granted.   

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 visa applicant gave evidence that he has no intention of working or studying in Australia, or of applying for any substantive visa.  He stated that he has no intention or desire to live permanently in Australia.  He wants to visit his uncle, who he is close to, and other family.   He has sufficient savings to support himself throughout his stay and will be assisted by the provision of accommodation by his uncle.  The review applicant confirmed that the visa applicant will be self-supporting on his visit, but will stay with him.  The visa applicant also noted that he is getting married in Lebanon on 1 February 2025 and so has to return and would do so before the wedding.  The review applicant had provided a receipt for the wedding food and a wedding invitation demonstrating that the visa applicant and his fiancée will marry in Lebanon on 1 February 2025.

16. The visa applicant gave evidence that his fiancée is a Lebanese citizen who also lives in Akkar.  When they marry, they will live in the home that the visa applicant owns.  She is a student, currently studying Arabic Language and intends to become a teacher when she completes her study.   She has never travelled outside of Lebanon. 

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

18. The visa applicant confirmed (as described in documents submitted with his application) that he has full time employment as a salesperson and has held that job since 2020, despite the economic conditions in Lebanon.  He owns two properties, one of which is a home and the other a block of land.  The home is currently untenanted and he lives with his family. He stated that when he marries, he and his wife will live in his property and start their family.  He advised that his properties do not have mortgages.  The visa applicant gave evidence that he also has savings of around USD $35,000. I noted that this was substantial savings and enquired as to its’ source, given that it was close to three years’ declared annual income of $13,200.  The applicant responded that he receives his salary regularly (as demonstrated by the employment letter he sent in) and also receives increments, and saves a lot. 

19. The visa applicant said his father still works (in agriculture on his own land) and the applicant’s income is used for his own purposes and not to support his family.  One of his brothers works in a Pastry shop, and the other is a student.  Some of his sisters are married, some are still young.  His family members’ health is good, and he gave evidence that he has no caring or financial responsibilities in Lebanon.

20. It was noted that the security and economic situation in Lebanon is extremely troubled, with recent attacks raising fears of an escalation of the conflict in the south of the country with Israel.  The visa applicant responded that there are no problems in the north of the country where he lives.  The review applicant also observed that there are ‘always’ problems in Lebanon, but people still travel to and from the country and always have done.  The visa applicant claimed that his employment has continued without interruption and that the conflict and other matters do not affect him at all in Akkar.   

21. The review applicant gave evidence that he lives with his partner and children and is currently not working due to illness. Nonetheless he will accommodate his nephew when he comes to Australia.

22. In the days prior to the hearing, the security situation in Lebanon had worsened with multiple deaths and injuries caused by explosions of Hezbollah communication devices.  I noted that the Australian Government had issued a ‘do not travel’ directive to Lebanon and had advised Australian citizens visiting the country to depart, warning that departures may be restricted over the coming period.  I discussed this with the parties and neither the visa applicant nor the review applicant agreed with my assessment of an unstable and worsening security situation in Lebanon.   They downplayed the conflict, saying it was only affecting the south of the country and denied that it had an impact on the north of the country at all.  Although I noted that the country information suggests that the economic situation affects the whole of the country, the visa applicant said that he has always had stable employment and has not been affected. Both the review and visa applicant suggested that there were ‘no problems at all’ in Akkar.

23. At the time of writing this decision, I note that world media reports demonstrate that the feared escalation of Israel attacks on Lebanon has been occurring with multiple casualties.

24. For example, Al Jazeera reports that 72 people have been killed in the latest wave of Israeli bombings with the death toll from Israel’s bombings surpassing 620;[1]  SBS and ABC report that some Australians stuck in Lebanon are trying to flee the country but cannot, including some waiting for visas to be issued by the Australian government;[2] and the Lebanese Prime Minister has recently addressed the UN Security Council asking for the council to act as Israel’s bombardment of the country has killed 620 people in three days.[3]

    [1] Israel attacks Lebanon live: 72 killed in latest wave of Israeli bombings:  Israel attacks Lebanon live: 72 killed in latest wave of Israeli bombings | Israel-Lebanon attacks News | Al Jazeera 26 September 2024

    [2] 'I want to leave but I can't': The Australians stuck in Lebanon as bombs rain down | SBS News  26 September 2024

    [3] Israel ‘spreading terror’, Lebanon’s PM tells UN Security Council | Israel-Lebanon attacks News | Al Jazeera  26 September 2024.

25. Whilst I give some weight to the fact that the visa applicant has employment and significant assets in Lebanon, I also note that he has a substantial cash savings which could easily be transferred to Australia and could not be considered to be an incentive for him to return to Lebanon at the end of his permitted stay.  I also give some weight to his upcoming marriage as providing some incentive for him to return to Lebanon.  

26. However the applicant has no caring responsibilities in Lebanon, is still a single man, and is self supporting – he gave evidence that he does not support his parents and siblings from his wages. I consider that he would have significant family support if he travels to Australia in the form of uncles, aunts and cousins, which would provide him with a strong incentive to remain at the end of the permitted stay, particularly given the volatile economic and security crises in Lebanon. Apart from his fiancée, because of his financial independence and lack of caring responsibilities, I do not give his family members remaining in Lebanon much weight as an incentive for the applicant to return in accordance with the visa conditions. 

27. As discussed with the applicants at hearing, the general country information I have considered does not support their claim that ‘everything is fine’ in the North of Lebanon – even before the recent escalation of Israeli attacks.  Whilst the North of the country may not have experienced open warfare and bombings as has the South, the volatility of the economic and security situation over recent years, and continuing, has led to shortages in produce, high inflation, and crippled health and financial sectors, throughout the country[4].  

    [4] DFAT Country Information Report, Lebanon 26 June 2023 at 2.7 – 2.9 reports:

28. I consider that the visa and review applicants were minimising the severity of the crises facing Lebanon and the impact on day to day life there, even in the North of the country.  Whilst I accept that the visa applicant has significant financial and property assets and may have some insulation from economic hardship as a consequence, I do not accept that he is unaffected by the reported economic conditions in the country, or that he can reliably claim to be unaffected by the security crisis currently occurring and, by all reports, escalating in the country.

29. I consider that the economic and security situation in Lebanon provides the applicant with a very strong incentive to remain in Australia at the end of a permitted stay, even taking into account his personal circumstances and those factors that might provide him with an incentive to return to Lebanon at the end of his visit. I do not consider that the properties he owns require his ongoing attention, (because they could be sold if necessary to support him if he left Lebanon) and he could take his savings with him on departing the country.  I consider that his employment earnings are not at a level that, compared with what he could earn outside Lebanon, they would give him a strong incentive to return to Lebanon.

30. Having weighed the evidence carefully, because I give substantial weight to the economic and security crisis in Lebanon as  providing an incentive for the visa applicant to remain in Australia at the end of a permitted stay, I consider that the incentives for the applicant to remain in Australia at the end of a permitted stay period outweigh those which he gives as his reasons for returning to Lebanon. I am not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and find that the requirements of cl 600.211 are not met.

    DECISION

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

    Anne Grant

    
    

    Member

    
    

2.7 Lebanon 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.
2.8 Some analysts have claimed that the cause of the debt is overly generous and unsustainable interest payments from the central bank to foreign investors, which, according to the New York Times, amounted to a form of ‘Ponzi scheme’. The currency has been sharply devalued, inflation is very high (over 150 per cent in 2021) and some people have been unable to access savings or afford basic goods and services.
2.9 Supply of basic goods including medicines, food and fuel is unpredictable, and they are sometimes rationed. Subsidies that were applied to these goods were mostly lifted as the economic crisis deepened and many Lebanese who relied on subsidies have been left without access to these goods.