Mehrez (Migration)

[2017] AATA 348

Mehrez (Migration) [2017] AATA 348 (3 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sam Rajab Mehrez

VISA APPLICANT:  Mr Wassim Mehrez

CASE NUMBER:  1612955

DIBP REFERENCE(S):  BCC2016/1703890

MEMBER:Christian Carney

DATE:3 March 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 03 March 2017 at 4:10pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Sectarian conflict in Jabal Mohsen – No political or religious involvement – Close family relationships – Willingness to lodge a security bond

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.211

CASES

Khanam v Minister for Immigration & Citizenship [2009] FCA 966

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 9 June 2016 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 5 May 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. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994, and include cl.600.211, which requires the visa applicant to satisfy the Minister that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether he has complied substantially with the conditions attached to the last substantive visa he held, whether he intends to comply with the conditions to which the Subclass 600 visa would be subject, and any other relevant matter.

   Evidence before the Tribunal

3. The Tribunal has before it the Department’s file containing the visa applicant’s application for the visa, including numerous pieces of documentary evidence about his circumstances in Lebanon and the review applicant’s circumstances in Australia.  The review applicant appeared before the Tribunal on 14 February 2017 and gave evidence in support of the application and the Tribunal also took evidence from the visa applicant who gave evidence by telephone from Lebanon through an accredited Arabic interpreter.     

   Information about the visa applicant and review applicant

4. The evidence before the Tribunal indicates that the visa applicant is a 35 year old single male who lives with his elderly mother in Zhagharta in northern Lebanon.  He and his family members are all Alawite Muslims.  He has never been married and is not in a relationship and has no current plan to enter into a relationship with any other person.  He has been employed as a sales representative in a motor vehicle spare parts business in Zhagharta for the past five years, and he provided a letter from his employer confirming the employment and his ability to take four weeks leave from work.  He is not involved in or with any political or religious organisation. 

5. The visa applicant has five siblings, one of whom, the review applicant, has been living in Australia since 1998 and is an Australian citizen.  He has two other brothers and two sisters all of whom are married and live with their spouses and children in Jabal Mohsen, Tripoli.  Their father is deceased and the visa applicant has been the primary carer of his mother since his father’s death.

6. The review applicant arrived in Australia in 1998 as the holder of a Partner visa and he remains married to his wife and together they have five children under the age of 10.  He operates a successful pizza restaurant in Sydney and, because of his business and family commitments, has been unable to return to Lebanon to visit his family since 2006.  His wife’s family are also Alawite Muslims from Jabal Mohsen and she last visited Lebanon in 2009 with their two eldest children.  None of the review applicant’s siblings have been to Australia. 

7. The visa applicant applied for the visa to travel to Australia for up to six weeks to visit his brother and his family and to have a holiday.  He previously applied for a Visitor visa to travel to Australia in 2015 but that application was refused by the Department and he did not seek review of that decision.  He has not before travelled outside Lebanon.  The review applicant claimed that he is very close to the visa applicant and he wishes for his brother to visit him in Sydney and spend time with his wife and five young children.  He confirmed that he would cover the costs of the visa applicant’s travel and, if necessary, is willing to lodge a security bond as a guarantee that his brother will comply with the conditions of the visa. 

8. The applicants maintained that their home area in Jabal Mohsen has been safe and free from violence and sectarian conflict for the past three to four years; that no member of their family is involved in any political or religious group or organisation; that, while there are many Syrian refugees in Lebanon, the Syrian crisis has not caused them any problems; that they lead ‘normal’ lives which are unaffected by the conflict in neighbouring Syria and by the clashes that occurred in 2011-2013 in the Bab al-Tabbeneh area.  They both gave evidence that the visa applicant and their mother moved from Tripoli to Zhagharta in 2011 because of the outbreak of violence at that time, and have remained living there since that time because of the visa applicant’s employment and their extended family in the area.  At least one of their siblings travel to see their mother each week, and the visa applicant and his mother also travel regularly to Tripoli to be with their family. 

   Consideration and assessment

9. On the evidence before it, the Tribunal accepts that the visa applicant and review applicant are siblings, and that the visa applicant seeks the visa for the purposes of visiting his family in Sydney and to do some site-seeing, which are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.221.  

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).  As noted, the visa applicant has not before travelled to Australia or elsewhere outside Lebanon, and accordingly, there is no evidence to assess against this criterion.  The review applicant has held a temporary and permanent visa in Australia and there is no evidence before the Tribunal to indicate or suggest that he did not comply with the conditions of those visas, which reflects positively on the review applicant’s willingness to abide by Australia’s migration system. 

11. 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 likely conditions that would be attached to a visa granted to a person in his circumstances are (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

12. In considering these issues, the Tribunal notes that both the review applicant and visa applicant gave their evidence in a straightforward and clear manner and there is nothing in the evidence before the Tribunal to contradict the statements they made about his circumstances in Lebanon or the general situation in his home area. 

13. On the evidence before it, the Tribunal accepts the claims made by the applicants about the visa applicant’s financial and familial circumstances and commitments in Lebanon, including that he has been employed as a sales representative in a motor vehicle spare parts business in Zhagharta for the past five years; that he lives with his elderly widowed mother in an apartment owned by the family, and is her primary carer; and that he is closely involved with the lives of his siblings and their children. 

14. The Tribunal has had regard to the prevailing political and security conditions in Lebanon and Syria, and has considered whether this constitutes a disincentive for the visa applicant to return to Lebanon.  The Tribunal notes that the visa applicant originates from the predominantly Alawite suburb of Jabal-Mohsen which adjoins the predominantly Sunni suburb of Bab al-Tabbeneh, and that this area has been a flashpoint of sectarian issues since the 1970s, and it is where his four siblings and their families live.  According to DFAT in their most recent assessment in December 2015, ‘the conflict in Syria has exacerbated the traditional hostility between the Alawite and Sunni communities, and resulted in regular rounds of sectarian violence between competing militias, most recently in 2013 and 2014’; however, in ‘April 2014 Lebanese authorities implemented a security plan in Tripoli which led to a notable reduction in the number of incidents between the Alawite and Sunni communities.  DFAT contacts have noted that Tripoli is now broadly stable, though vulnerable to outbreaks of renewed violence’.  As noted by the applicants, the only reported security incident in the area since late 2013 was in January 2015, when a suicide bomber detonated a bomb in a café in Jabal Mohsen which killed nine people and injuring a further 35 people.  The applicants both maintained that the sectarian violence that has occurred over the years does not affect the lives of their family, and that the area has returned to a relative state of normalcy since early 2014, notwithstanding the January 2015 café incident.  Moreover, as noted above, the Tribunal accepts that, since 2011, the visa applicant and his mother have been living in the trouble-free area of Zhagharta, north of Tripoli, which has become his place of domicile. 

15. In considering this issue, the Tribunal notes the decision of the Federal Court of Australia in Khanam v Minister for Immigration & Citizenship [2009] FCA 966, which directed the Tribunal, when considering a situation such as the present, to consider the particular circumstances of the applicant rather than make broad assumptions based on information regarding persons with a similar profile or from the same social group.

16. In considering this issue, the Tribunal also notes that there is nothing in the available evidence to indicate that the visa applicant or any other member of his family in Lebanon is involved in any religious or political activities or any other activity that have caused him or them to have problems with the police or security officials.  As noted, the Tribunal found both applicants to be credible witnesses and it accepts the visa applicant’s evidence that he has not faced any particular issues or problems in Tripoli and that he does not wish to, or intend to, live away from his mother in Zhargharta or away from his siblings, nieces and nephews in Tripoli.  While the presence of his brother and his family in Sydney, and the relatively higher socio-economic conditions and the political stability and security may present a reason for him to stay longer in Australia, the evidence indicates that he is closely involved with the lives of his mother and four siblings and their children in Jabal Mohsen, that he is engaged in meaningful employment, and has social and cultural ties that have been built up over the course of his 35 years of life in Zhargharta and Jabal Mohsen, which, together, provide strong incentives for him to return. 

17. Both applicants demonstrated an awareness of the conditions that would be imposed on a Visitor visa issued to him and the requirements of those conditions and they indicated that they understood the consequences of his breaching a condition.  In the Tribunal’s view, the potential adverse consequences on future applications by other family members, including the visa applicant’s mother, four other siblings and their children, if he does not comply with the conditions of the visa, and the potential loss of any security bond imposed on the visa, would provide additional incentives for his compliance. 

18. The Tribunal accepts that the visa applicant does not speak English and that he does not have plans or an intention to come to Australia for the purpose of seeking or gaining work or to study.  The Tribunal also accepts that he is not in a relationship with any person in Australia and has no plans to enter such a relationship if here on a Visitor visa.  Having carefully considered the evidence and information before it, the Tribunal accepts that he does not intend to stay in Australia for a period of more than about four to five weeks, and that it is his genuine intention to only stay for that period so that he can be with his brother and his family in Sydney. 

19. For these reasons, on the evidence before it, 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

20. 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.

    Christian Carney

    Member