Mahmoud (Migration)

[2017] AATA 2313

Mahmoud (Migration) [2017] AATA 2313 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mahmoud Mahmoud

VISA APPLICANT:  Mr Abdul Rahman Mahmoud

CASE NUMBER:  1709300

DIBP REFERENCE(S):  BCC2017/1182839

MEMBER:Mary Urquhart

DATE:10 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 10 November 2017 at 4:14pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Previous visits to Australia – Single status and no independent relatives – Care of parents is not sufficient incentive – Inconsistent evidence of employment –  Country information of Lebanon

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.221, cl 600.222

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 11 April 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 28 March 2017. 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 Tourist 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 the delegate was not satisfied that the applicant genuinely intends to stay in Australia for the purposes for which the visa is granted.

5. The review applicant appeared before the Tribunal on 10 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abdul Rahman Mahmoud the visa applicant by telephone from Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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 Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).

11. The applicant has previously been granted visas to visit Australia in 2009, 2010 and 2012. The Tribunal notes the applicant’s parents have in the past visited Australia and have abided by conditions of their visas. The applicant’s parents currently hold multi entry visas to visit Australia. The Tribunal gives weight to this evidence. However  it is but by no means determinative of the review, as whilst the Tribunal  accepts the evidence of previous compliance, the Tribunal must also take into consideration other factors in this decision which are of greater concern to the Tribunal.

12. 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(2):

    ·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.

13. The applicant is a 26 year old single man. He lives with his parents in Ein El Zahab, in the District of  Akkar, North Lebanon. He is of the Sunni religion. Also present in the home are a married brother his wife and 3 children. Another sister lives nearby.

14. The applicant has 6 siblings living in Australia. All have migrated to Australia  on partner visas.

15. The applicant’s brother Mr Mahmoud Mahmoud, the review applicant is self-employed in his own floor polishing business. He has provided a Statutory Declaration dated (22 February”)  in which he deposes he has invited the applicant to visit for one month. He deposes that his parents were recently granted visas and he hopes the applicant can travel with them. At the hearing it appeared that the document may have been prepared in relation to an earlier application where the applicant was refused a visa .

16. The review applicant gave evidence at the hearing that he wishes his brother to visit for 3 months. He agreed his parents had travelled on their own on their last visit. His evidence to the Tribunal  is that he wishes to reward his younger brother for looking after their parents in Lebanon. At hearingthe review applicant said  that the applicant simply wanted to have a short visit to Australia to have a change of atmosphere, some fun and as a reward for caring for his parents in Lebanon.The visa applicant gave evidence he wished to visit for a month or less.

17. As mentioned above, the Tribunal accepts the applicant has in the past demonstrated compliance with visa conditions. The evidence is that as a young man he travelled with his parents on 3 trips to Australia first in 2009 and again in 2010 and 2012. However the applicant’s present circumstances and evidence have raised serious concerns regarding his intentions to visit temporarily.

18. The Tribunal is concerned that the applicant’s personal circumstances, as a single man with no dependent relatives, provide a convincing incentive for him to return to Lebanon at the end of any visit.

19. It was claimed by the review applicant that the applicant cares for their elderly parents in Lebanon. It was said that the parents are in their sixties. While the Tribunal accepts that the applicant cares for his parents with whom he lives,  on the evidence, he is not the only family member who does this. The applicant explained that he lives with his parents and owns a part of the building they reside in as does his married brother. He gave evidence that his parents are also cared for by sister who lives nearby.

20. The Tribunal  notes the applicant’s parents are able to travel unaccompanied and that they have valid multiple entry visas to visit Australia. They returned home to Lebanon after a visit about 2 months ago.

21. After careful consideration of the evidence of responsibilities to care for his parents; and consideration of the parents circumstances together with the evidence that other adult children are available to care the Tribunal is not satisfied that care of his parents is sufficient incentive for the applicant to return home. The Tribunal finds that the applicant’s affective family ties to Lebanon are tenuous. Furthermore the applicant has 6 siblings who reside in Australia. The Tribunal formed the view the applicant may be tempted to remain in Australia where the balance of his family members reside.

22. The applicant has submitted documentation to support his claim that his employment is a reason the Tribunal can be sure he will comply with any visa conditions and return home at the end of any visit. The evidence is that he works as a cabinet maker. His employer is said to be Mr Houssam Abdul Halim Taha the “owner of Furniture Industry Firm”. The applicant has submitted an undated letter from his employer which clearly states the applicant has been employed in the firm since 2013 in the position of cabinet maker professional. The letter states the applicant earns a monthly salary of $700 USD; the letter indicates the applicant is granted “2 months’ vacation totally paid” on condition that he “returns back to his job at the end of the period”.

23. The Tribunal has taken into account that the applicant’s claim of employment in Lebanon and the amount of money he claims to earn each month. The Tribunal has significant concerns that the evidence of the applicant and review applicant concerning the applicant’s employment contains serious inconsistencies with each other’s evidence and with the documentary evidence submitted.

24. The inconsistencies relate to how long the applicant has worked for the company and how much money he earned when he commenced working for the company together with when it was that he commenced working for the company.  The inconsistencies lead the Tribunal to place little weight on the evidence of employment as an incentive for the applicant to return home. For this reason the Tribunal is not persuaded that the applicant's employment provides a basis for accepting it as an inducement for him to return home at the end of any visit.

25. The applicant is now 26 almost 27 years of age; on the evidence he has few personal commitments in Lebanon other than the claim to work evidence which the Tribunal finds unsatisfactory and his claim to care for his parents which the Tribunal discounts as an inducement for him to return, given his evidence regarding his married sister and married brothers’ contribution to the care of the parents.

26. The Tribunal also takes into account and gives weight to country information in respect of North Lebanon. That information does not convince the Tribunal that the applicant's life in Akkar is as good and secure as he claims. The latest advice issued by the Department of Foreign Affairs and Trade Australia, (DFAT) dated September 2017 discusses the country's socio-economic circumstances as well as the security situation. The official overall advice for the entire country of Lebanon is that travellers should reconsider their need to travel.

27. The Tribunal discussed country information that indicates that Akkar has had a large influx of Syrian refugees and the impact of this on the socio economic circumstances in Akkar. It was submitted on behalf of the applicant that Syrian refugees have been settling in many countries and that there has been an economic impact in those countries as well and for this reason no particular emphasis should be placed on the information. According to a recent Aljazeera report there is fear and loathing of Syrian refugees in Lebanon. It refers to over a million Syrians who have fled to Lebanon since the war began. And whose reception has grown increasingly hostile. 28 Oct 2017.

28. The reasons for hostility are referred to in a study dated March 2017, as part of the Refugees in Towns Case Studies Series, Feinstein International Centre.  The case study refers to how relationships between Lebanese and Syrians have deteriorated “as competition over jobs intensifies, security concerns increase, and decrepit public infrastructure is further strained.”

29. The Tribunal accepts Syrian refugees have arrived in many countries but does not agree that the impact of their arrival in Lebanon equals any impact caused by their arrival in Australia. The Tribunal in assessing this application takes into account the current socio economic and security circumstances in the applicant’s home country.

30. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has taken into account the applicant's personal profile, the circumstances of his home country generally, and his home area specifically. The Tribunal on balance is unable to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

31. For the above reasons the Tribunal is not 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 not met.

    DECISION

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

    Mary Urquhart
    Member

    
    

    , September 2017.ccessed 9 November 2017