KHALED (Migration)

[2020] AATA 5667

KHALED (Migration) [2020] AATA 5667 (18 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Karam KHALED

VISA APPLICANT:  Mr Karim Khaled

CASE NUMBER:  1818888

HOME AFFAIRS REFERENCE(S):          CLD2018/34289531 CLF2018/34289531

MEMBER:Angela Cranston

DATE:18 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2020 at 13:54pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – tourist stream – genuine temporary stay criterion – economic and security situation in Lebanon– personal ties to Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 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 8 June 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 Tribunal’s consideration of claims and evidence is at paragraph 15. The claims and evidence are directly below.

3.    The visa applicant applied for the visa on 7 June 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 Tourist stream.

4. 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.

5.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 on the following basis:

In coming to my decision I gave weight to your personal and economic circumstances, your international travel and immigration history, the economic and environmental factors in your country of usual residence and how these may induce you not to return as well as factors in Australia and how they may act as an incentive for you not to depart Australia if granted a visa.
You are a 25-year-old engaged Lebanese citizen residing in Bebnine, Akkar, North Lebanon. You requested a visa for one month to visit your stepmother, aunt and three brothers and for tourism visit purposes. You declared you will be leaving behind your fiancée, parents and 11 siblings in Lebanon.
You declared that you are employed as an account for two years for Al Boden General Trade Establishment. While your employment claims are not doubted, I place little weight on this employment as incentive to return to Lebanon. Your incentive to return to your home country to resume your work is therefore weak and consequently I have concerns about your intention to depart Australia within the validity of your visa.
I have considered the general conditions in your home country that might encourage you to remain in Australia. It is well documented that Lebanon has suffered political and civil unrest over many years and that the situation remains unpredictable. Departmental information shows that it is not uncommon for Lebanese nationals to overstay their visa or change their status after their arrival in Australia. I find that these circumstances are of such a nature that they would act as an incentive for you to remain in Australia beyond the validity of the visa. From the information supplied in your application I cannot be satisfied you intend a genuine visit to Australia.

6.    The review applicant appeared before the Tribunal on 15 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7.    The review applicant stated that the applicant had not previously been to Australia, but his father, brother and sister had entered Australia and returned within the validity of their visas and had not breached visa conditions. He stated the applicant intended to visit Australia and would return since he worked in a finance company, had a fiancée and had family in Lebanon that included his mother, father and 12 siblings. He stated he had three siblings in Australia and his stepmother. The review applicant also stated that he himself had property in Lebanon which the applicant managed including collecting the rent.

8.    The review applicant stated that the applicant lived like a prince in Lebanon. He said his salary was $1500 US a month, he had a new car and was very comfortable. The review applicant also stated that his own children had visited the applicant and were very attached to him.

9.    The Tribunal talked about DFAT’s March 2019 Lebanon Country assessment that said that limited economic opportunity was a push factor for external migration and that the current country reports referred to economic collapse and a large humanitarian crisis. The review applicant stated that Lebanon was rich but that the politicians stole. He also stated that the applicant was in North Lebanon where it was safe and that the applicant could only leave his work for a short time. He also stated that he and his brothers were willing to pay a bond if one were requested.

COUNTRY INFORMATION

1. According to DFAT Country Information Report Lebanon dated 19 March 2019:

DFAT assesses that limited economic opportunity, exacerbated by the influx of displaced Syrians, is a push factor for external migration.

1. According to an article in Aljazeera, To Rebuild Lebanon and its economy, uproot corruption, 2 September 2020 accessed 17 September 2020:

On August 4, one of the largest non-nuclear explosions in history wreaked havoc in Beirut. Nearly 200 lives were lost, and more than 6000 people were injured. An estimated 300,000 people were instantly left homeless. The blast obliterated homes, schools, medical facilities and the port of Beirut, which supplies nearly 85% of the country’s food. Humanitarian relief efforts are already underway, but the longer term reconstruction will take years. For Lebanon to truly recover, the country and its international partners will need to address something more insidious than the blast: corruption.

Lebanon was already on the verge of humanitarian crisis. In 2019, the country’s economic collapse threw hundreds of thousands into poverty and exacerbated an already spiking unemployment rate, especially among the youth. The COVID-19 pandemic and the subsequent lockdown further deepened the hardship, including for more than 1 million Syrian refugees…

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Initial issue

1. The Tribunal exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by telephone. The hearing was held during the Covid -19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

2. While the Tribunal spoke to the review applicant by telephone, the Tribunal's observations were that the review applicant was given ample opportunity to submit all the evidence that he wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the applicant a fair opportunity before and during the hearing to provide all the evidence and arguments and evidence that he wanted the Tribunal to consider.

Substantive Issue

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant, his brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

3. 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)). Since the applicant has not previously Australia, this is not relevant.

4. 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.600.611(3)):

   ·8101 – must not work in Australia

   ·8201 – must not engage in study or training in Australia for more than 3 months.

5. Condition 8501 - adequate arrangements for health insurance, 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia and 8558 - cannot stay more than 12 months in any 18 month period may also be imposed. In this case, the Tribunal considers condition 8503 and 8558 should be imposed.

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

7. The Tribunal has considered the personal circumstances of the applicant who was born in 1993 and is therefore 27 and lives in Bebnine/Akkar, North Lebanon. The applicant has a fiancée and is employed. He also has his parents and siblings in Lebanon.   The Tribunal is satisfied that the applicant has ties to Lebanon.

8. Although the applicant has ties to Lebanon, he also has considerable personal ties to Australia in that his brother, two other siblings and his step-mother are here. While the review applicant has stated that the applicant will return to Lebanon and the Tribunal acknowledges that there is no evidence to suggest that the applicant or his family have not previously complied their Australian visas, the Tribunal considers that the applicant’s ties in Australia are a significant pull factor for him to remain in Australia and the current situation in Lebanon is a significant push factor for his external migration. 

9. As stated, even though the applicant has family and employment in Lebanon, country reports suggest Lebanon is facing economic collapse exacerbated by COVID 19 pandemic and now one of the largest non-nuclear explosions in history in Beirut. The Tribunal considers that the turmoil in Lebanon is a significant push factor for external migration.

10. The above concerns mean that the Tribunal has significant concerns that the applicant will seek to remain in Australia and that the applicant does not genuinely intend to stay temporarily in Australia.

11. The Tribunal has some sympathy for the review applicant who clearly wants to see the applicant. If the visa applicant had applied for a sponsored family visitor visa, then the Tribunal could have considered whether the lodgment of a security bond (which the review applicant suggested) would have provided added assurance that the visa applicant would abide by visa conditions and depart before the visa expires. The Subclass 600 sponsored family visa allows some Australian citizens and permanent residents to sponsor certain family members for a visit to Australia. The review applicant may wish to consider this option.

12. For the above reasons the Tribunal is not satisfied that the 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

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

Angela Cranston
Member