Mahmoud (Migration)

[2023] AATA 4475

Mahmoud (Migration) [2023] AATA 4475 (1 November 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Mahmoud

VISA APPLICANTS:  Mrs Mona Hassan

Mr Mahmoud Mahmoud

CASE NUMBER:  2215294

HOME AFFAIRS REFERENCE(S):           BCC2022/2565858

MEMBER:  Peter Papadopoulos

DATE:  1 November 2023

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal:

·affirms the decision not to grant the second named visa applicant a Visitor (Class FA) visa; and

·remits the first named visa applicant’s application for a Visitor (Class FA) visa for reconsideration with the direction that the first named visa applicant meets cl

600.211 in Part 600 of Schedule 2 to the

Migration Regulations 1994.

Statement made on 01 November 2023 at 12:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – second named visa applicant passed away – past compliance with visa conditions – intention to comply with visa conditions – No Work condition – No Study condition – No Further Visa condition – No Further Stay condition – returned to home country on four previous occasions – personal and economic ties in Lebanon – other relevant matters – economic, security and political situations in Lebanon – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211; Schedule 8, Conditions 8101, 8201, 8503, 8531

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 30 September 2022 to refuse to grant each applicant a Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

1. Mrs Mona Hassan (Mona or the first named visa applicant) and her husband Mr Mahmoud Mahmoud (Mahmoud or the second named visa applicant) applied for the visas on 7 July 2022. 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, having been sponsored by the review applicant, Mr Mohamad Mahmoud (Mohamad).

1. 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.

   600.211

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)   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; and

   (b)   whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)   any other relevant matter.

1. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied that they genuinely intended to stay temporarily in Australia.

1. On 17 October 2022, Mohamad lodged with the Tribunal an application for review of the delegate’s decisions.

1. Mohamad appeared before the Tribunal on 26 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mohamad’s wife, Ms Ebony Bennett, and Mona. The Tribunal hearing was conducted by video using the Microsoft Teams technology platform with Mohamad and Ebony in Melbourne as well as over the telephone with Mona in Lebanon. The hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

1. For the following reasons, the Tribunal has concluded that the decision in relation to Mahmoud should be affirmed and the matter in relation to Mona should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Claims and evidence provided to the Department

1. The following documents were provided to the Department in support of the visa applications:

·     Department form (online), ‘Application for a Visitor Short Stay Visa’, submitted 7 July 2022 detailing Mona as the visa applicant, and Mahmoud as her husband and travelling companion;

·     Department form (online), ‘Application for a Visitor Short Stay Visa’, submitted 7 July 2022 detailing Mahmoud as the visa applicant, and Mona as his wife and travelling companion;

·     Department form 1149 – Application for sponsorship for Sponsored Family Visitors;

·     Submission dated 7 July 2022 from Ms Olia Kamereddine (MARN 1574752), Bardo Lawyers;

·     Mohamad’s Australian passport (issue date 30 November 2016), biodata page only;

·     ABN registration for On Spot Bin Hire and Demolition Pty Ltd;

·     Confirmation of CBA Bank Balance for Mohamad showing a balance of AUD18,870.62 as at 7 July 2022;

·     Statutory Declaration made by Mohamad on 7 July 2022;

·     copies, and authorised translations where applicable, of the following in relation to Mona:

o   Family Book register, showing Mahmoud married to Mona and details of the ten children from the relationship;

o   Bank statement issued by Society Generale de Banque in Lebanon for Mona Ali Mohamad Hassan showing a balance of USD2,947.80 as at 8 August 2019;

o   National ID card for Mona Hassan;

o   Army Benefit card for Mona (issued 20 December 2020, on the basis of her being the mother of Sergeant Omar Mahmoud);

o   Mona’s Visa Grant Notice for a Subclass 600 Visitor visa issued to her on 31 March 2016;

o   Mona’s Lebanese passport (issued 9 May 2016) including biodata page and various pages showing entry and exit stamps;

o   Mona’s Lebanese passport (issued 3 December 2021), biodata page;

o   Relationship register for the parents of Mona, showing she is one of 11 children from the relationship of Mr Ali Hassan and Mrs Alia Mohtadi;

·     copies, and authorised translations where applicable, of the following in relation to Mahmoud:

o   Family Book register, showing Mahmoud married to Mona and details of the ten children from the relationship;

o   Title Deed in the name of Mahmoud, in the region of Halba, district of Akkar, in which it specifies the land type as ‘unbuilt land’ that ‘is composed of Unirrigated flat land afforested grains’;

o   Photographs of a property depicting greenhouses and some plant cultivation;

o   Army Benefit card for Mahmoud (issued 20 December 2020, on the basis of him being the father of Sergeant Omar Mahmoud);

o   Mahmoud’s Lebanese passport (issued 26 February 2013) including biodata page and various pages showing entry and exit stamps.

1. Notably, in her legal submission dated 7 July 2022, the representative acknowledged that the visa applicants have two sons who had applied for permanent visas whilst onshore. The representative submitted that the visa applicants had previously visited Australia and did not avail themselves of the opportunity to apply for permanent visas during those stays and argued that this evinced their commitment to enter and remain in Australia on a temporary basis and return to Lebanon at the end of their proposed period of stay.

Claims and evidence provided to the Tribunal

1. On 18 October 2022, the Tribunal received copies of most of the documents provided to the Department, as well as a copy of the delegate’s decision in relation to each visa applicant.

1. No further submissions or documents were provided to the Tribunal after the hearing.

Issue for determination

1. The issue in this case is whether cl 600.211 is met by each visa applicant, which requires the Tribunal to be satisfied in the case of each visa applicant that they genuinely intend to stay temporarily in Australia for the purpose for which their visa is granted, having regard to whether they have complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by them was subject; whether they intend to comply with the conditions to which their Subclass 600 visa would be subject; and any other relevant matter.

1. On 23 October 2023, Mohamad informed a Tribunal officer that his father, Mahmoud, had passed away within the previous few weeks. At hearing, Mohamad told the Tribunal that Mahmoud had died in a car accident in Lebanon on 12 August 2023. The Tribunal accepts this evidence and finds that the second named visa applicant is deceased. Based upon this finding, the Tribunal is not in a position to satisfy itself that Mahmoud is capable of meeting cl

   600.211 and therefore affirms the delegate’s decision.

1. Accordingly, the Tribunal now turns to consider the claims and evidence as they relate to Mona’s ability to meet cl 600.211.

Purpose of stay

1. In the present case, Mona seeks the visa for the purpose of visiting her relatives in Australia including her son Mohamad, her other sons Khodr and Abdallah, her daughter-in-law Ebony and her grandchildren. Mohamad and Ebony explained that Mona was a religious woman who was currently in her period of mourning confinement for the required period of four months and ten days1 following her husband’s death on 12 August 2023. They explained that they would like Mona to visit in December 2023, soon after her period of confinement

1 The period of confinement, or Iddah, is specified in the Quran in the following terms: ‘For those men who die amongst you and leave behind wives, they (the wives) must confine themselves (spend iddah) for four months and ten days.’ (V 234 - Chapter 2: Al Baqarah)

would end. The Tribunal finds that Mona’s purpose of stay in Australia is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

600.211(a)

1. 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)).

1. Mona has previously travelled to and remained in Australia as the holder of a visitor visa on four separate occasions. On each occasion she remained in Australia for the purpose of visiting her family and departed before the expiry date of her visa. The Tribunal finds that Mona did not overstay any of her previous visas and there is no evidence before the Tribunal that she failed to comply with any condition imposed upon those visas.

600.211(b)

1. The Tribunal must also consider whether Mona 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 relevantly as follows (cl 600.612):

   ·     8101 – The holder must not engage in work in Australia.

·     8201 – While in Australia, the holder must not engage, for more than three months, in any studies or training.

·     8503 – The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

·     8531 – The holder must not remain in Australia after end of the period of stay permitted.

1. In considering whether Mona intends to comply with condition 8101, the Tribunal discussed with each of Mohamad and Ebony the nature of Mona’s proposed activities in Australia. Mohamad explained that his mother is a 62 year old woman who had been recently widowed and had no inclination to undertake any work in Australia during the proposed visit. He explained that she did not work in Lebanon, apart from occasionally tending to the vegetables in her greenhouse. Ebony further explained that her mother-in-law would be cared for at their family home in Victoria where she would most likely cook Arabic meals and spend time with her grandchildren. Asked as to whether Mona would be responsible for caring for her grandchildren throughout the summer holidays, Ebony explained that this would not be possible as Mona did not understand English to a sufficient degree and the children would be attending summer school programs at times when Ebony was required to work. Ebony further explained that they would accommodate Mona at their home whereby the children would share a bedroom so that Mona could have her own room. Given the provision of such accommodation, along with the persuasive oral evidence in relation to the visa applicant’s limited capacity for work in Australia and her personal circumstances, the Tribunal is satisfied that Mona intends to comply with condition 8101.

1. There is no indication before the Tribunal that Mona would seek to engage in study or training in Australia. At hearing, Mohamad explained that his mother had extremely limited English language proficiency and had no intention to study or undertake training in Australia. Mona also told the Tribunal that she simply wanted to visit her family in Australia, particularly Mohamad and his children. Given this evidence, and the fact that the proposed period of

stay sought is for a period of up to three months, the Tribunal is satisfied that Mona intends to comply with condition 8201.

1. Condition 8503 does not, on its face, mandate the applicant comply with any particular requirement. The condition operates to restrict the grant of a substantive visa, other than a protection visa, to a visa holder while they are onshore. Furthermore, unless waived, the condition operates to invalidate the onshore lodgment of any visa application other than a protection visa application while an applicant is onshore. Therefore, there is no basis upon which the Tribunal may assess the visa applicant’s intention to comply with this condition as the condition pertains to a restriction upon the making of a further application by operation of law rather than a requirement to do, or refrain from doing, an act or thing.

1. In considering whether Mona intends to comply with condition 8531, the Tribunal gives weight to the fact that Mona did not remain in Australia after end of the period of stay permitted by each of her visitor visas when she visited Australia on four previous occasions. Asked at hearing about her preferred living situation, Mona told the Tribunal that Lebanon was her country and her home and that he simply wished to visit her beloved relatives in Australia for a short time and then return to her supportive family network in Lebanon. At hearing, Mohamad reiterated on numerous occasions that his mother would not seek to remain beyond the period of stay permitted on the visa because her life was anchored in Lebanon. He explained that she lived her entire life in Lebanon and was no longer at a point in her life where she would be willing to abandon the familiarity of the circumstances in her home country, albeit a somewhat difficult set of circumstances from time to time. The Tribunal was persuaded by Mohammed’s oral evidence in this regard, as far as he had explained the dedication of Mona’s family support network in Lebanon that had been caring for her since she had been recently widowed. Given the spontaneous and free-flowing nature of the evidence given by Mona in relation to her intention to return to Lebanon at the end of her proposed visit, the Tribunal found their evidence on this issue to be persuasive. Taking into account these matters, and other relevant matters outlined below, the Tribunal is satisfied that Mona intends to comply with condition 8531.

600.211(c)

1. The Tribunal has also considered other relevant matters (cl 600.211(c)). In doing so, the Tribunal discussed with Mohamad, Ebony and Mona the duration and timing of Mona’s proposed visit to Australia taking into account her personal circumstances. Mona explained that she only intended to visit Australia for a period of up to two months as she did not feel comfortable being away from her wider family network in Lebanon for any longer period of time. Furthermore, Mohamad insisted at hearing that he understood his mother would need to respect Australian law and abide by the conditions of her visitor visa and that he would ensure such compliance by arranging the payment of a bond of up to $20,000 if required by the Department.

1. The Tribunal asked Mohamad how the economic, security and political situations in Lebanon have impacted on Mona and her family. Mohamad explained that his mother was in a financially stable position as she had inherited her husband’s home and farmland upon his death and was receiving financial and other support from her family members in Lebanon. This support included the receipt of rent in the sum of approximately USD500 per month from her son Ahmad in exchange for his use of Mona’s farmland for the purposes of vegetable cultivation in the greenhouses. Furthermore, Mohamad explained that he would continue to send annual remittances to Mona of approximately AUD2,500 that would enable her to live a comfortable life in Lebanon. He further explained that Mona’s living expenses were limited as her power bills were not exorbitant as solar panels had been installed at her home and her health care costs were low given she enjoyed government-subsidised health care as the parent of a sergeant in the Lebanese Armed Forces. Asked how recent social

unrest and conflict in Lebanon affected Mona and her family, particularly given the escalating tensions in the region since Hamas’ attack on Israel on 7 October 2023, Mohamad told the Tribunal that his mother and family members in Lebanon had become accustomed to instability and security issues in the country and that the present situation was not especially grave as they resided in northern Lebanon in a village area that was well-removed from Lebanon’s southern border with Israel. Mona also acknowledged the Tribunal’s concern in relation to the security situation Lebanon but was somewhat pragmatic as she told the Tribunal that she felt relatively safe where she lived and that the security situation in Lebanon was now ‘in the hands of Allah and many leaders’ and that she would, as she had in the past, adapt to any situation.

1. Mohamad was present while Mona and Ebony gave their evidence to the Tribunal. After having heard their oral evidence, the Tribunal raised two concerns with Mohamad for comment.

1. First, the Tribunal explained that country information recently provided by the Department of Foreign Affairs and Trade (DFAT) indicated 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.2 The Tribunal also drew to his attention recent media reports indicating the security situation in the Middle East had deteriorated significantly since Hamas attacked Israel on 7 October 2023, with regional instability and tension having extended to Lebanon whereby Hezbollah and Israel have engaged in skirmishes across Lebanon’s southern border and reports indicating Israel’s concern that Hezbollah risks dragging Lebanon toward war.3 The Tribunal also drew his attention to DFAT’s latest Smartraveller Advice as of 23 October 2023 indicating that Lebanese authorities maintain that extremists have taken refuge in northern Lebanon.4 Asked to explain how the security situation in Lebanon did not act as an incentive for Mona to remain in Australia after her visa expired, Mohamad explained that his mother was no stranger to Lebanon’s unstable security situation. He further explained that Lebanon had been unstable for an exceptionally long time and that his mother had lived through instability throughout her life and survived difficult circumstances arising out of the Syrian civil war spilling over into Lebanon between 2011 and 2017 as well as during the month-long war between Israel and Hezbollah in 2006. He explained that despite this ongoing presence of conflict and potential insecurity in Lebanon, his mother had previously visited Australia on four separate occasions between 2012 and 2019 and returned to her home country after each visit. The Tribunal finds that Mohamad’s response overcomes its concern.

1. Second, the Tribunal explained to Mohamad key aspects of the following country information from the latest DFAT report pertaining to the economic situation in Lebanon:

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 DFAT Country Information Report – Lebanon (26 June 2023), para 2.31

3 Abouzeid, R., ‘The Simmering Lebanese Front in Israel’s War’, The New Yorker, 21 October 2013; Khraiche, D. and Altstein, G., ‘Israel Says Hezbollah Dragging Lebanon Toward War as Towns Empty’, Bloomberg, 22 October 2023

4 Smartraveller – Lebanon, <accessed 23 October 2023>

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.

2.10 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. The UN has scaled up humanitarian assistance in response to the economic crisis. It is providing limited payments to over 1 million Syrian refugees and 660,000 Lebanese, funded by donor governments and the World Bank. Remittances from the Lebanese diaspora contribute to over 50 per cent of the country’s GDP. However, the great majority of Lebanese living in poverty lack support.

Asked to explain how the economic situation in Lebanon did not act as an incentive for Mona to remain in Australia after her visa expired, Mohamad explained that Mona was now an elderly woman, with limited needs that were being adequately met by her family support network in Lebanon and that she had no desire to remain in Australia for the purpose of re- establishing a life in Australia in her twilight years. He further explained, with Ebony’s assistance, that his remittances had enabled Mona to maintain an adequate lifestyle in Lebanon where she derived considerable family support from her relatives who lived in the family compound within the neighbouring area. This was demonstrated to some degree by Mona’s daughter-in-law establishing Mona’s telephone connection during the hearing, a matter that was promptly addressed at the request of Mohamad as she lived next door to Mona. The Tribunal is persuaded by Mohamad’s response as it accorded with other evidence before the Tribunal pertaining to Mona’s personal circumstances in Lebanon, particularly those relating to the degree of familial support available to her in Lebanon that would enable her to maintain an adequate lifestyle despite the broader economic difficulties faced by persons living in Lebanon.

1. The review applicant’s migration history is not adverse and suggestive that if Mona arrived in Australia on a visitor visa, she would seek to remain here permanently. The review applicant came to Australia by way of the student visa program, acquired permanent residence through the partner migration scheme and was subsequently granted Australian citizenship. The review applicant’s migration history is not suggestive that his mother faces any problems in Lebanon. That said, Mona acknowledged that her sons Khodr and Abdallah had sought protection in Australia on the basis that they had resisted recruitment efforts by Hezbollah because they did not wish to be involved in killing others. While the Tribunal is not in a position to assess the veracity of those protection claims, it nevertheless finds that there is no information before the Tribunal indicating that Mona either intends to seek protection while visiting Australia or has any basis upon which she fears being harmed in Lebanon now or in the reasonably foreseeable future. This is suggestive of a view that Mona will not come to Australia and refuse to return to Lebanon.

1. In terms of other evidence submitted to demonstrate that Mona genuinely intends to stay temporarily in Australia, the Tribunal is persuaded that Mona’s close relationship with her family members living near her home in Lebanon, along with her enduring connections with her wider family network in Lebanon, will act as a strong incentive for her to return to Lebanon at the end of her proposed visit to Australia. The Tribunal also accepts the contention that Mona is neither interested nor willing to migrate to Australia at this stage in her life, particularly as she has been recently widowed and is deriving a significant degree of emotional support from her relatives in Lebanon.

1. In reaching the above finding, the Tribunal has given weight to the candid testimony provided by the Mona at hearing that while she of course expected to enjoy visiting Australia, she felt an overwhelming need not to leave her life in Lebanon to which she was very

accustomed. The Tribunal found Mona to be forthright in her evidence and accepts her contention that she was only prepared to remain in Australia on a temporary basis and would return to Lebanon at the end of her proposed visit.

Conclusion

1. Having considered all the evidence, the Tribunal finds Mohamad, Mona and Ebony to be credible witnesses and accepts their evidence.

1. The Tribunal accepts that Mona’s personal and economic ties in Lebanon provide strong incentives for her to return at the end of her permitted stay in Australia. These personal ties include her close family members in Lebanon who are currently supporting her following the death of her husband Mahmoud. The Tribunal is satisfied that Mona is well-settled in Lebanon and it is not her intention to come to Australia for the purpose of seeking permanent residence here.

1. The Tribunal is satisfied that it is Mona’s intention to visit her sons and other family members in Australia and that she will not remain in Australia after the end of her permitted stay. The Tribunal is satisfied Mona will comply with her visa conditions.

1. For the above reasons, the Tribunal is satisfied that Mona 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 in her case.

DECISION

1. The Tribunal:

·     affirms the decision not to grant Mahmoud a Visitor (Class FA) visa; and

· remits Mona’s application for a Visitor (Class FA) visa for reconsideration with the direction that she meets cl 600.211 in Part 600 of Schedule 2 to the Migration Regulations 1994.

Peter Papadopoulos Member