MOUSSA (Migration)

[2021] AATA 3823

MOUSSA (Migration) [2021] AATA 3823 (23 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

VISA APPLICANT:  Mrs Fayza Moussa

CASE NUMBER:  1920353

MEMBER:Angela Cranston

DATE:23 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2021 at 14:22pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – not satisfied that visa applicant genuinely intends to stay temporarily in Australia – family’s migration history – strong personal ties to Australia – economic situation in home country– strong incentive to remain in Australia ––decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 16 May 2019 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 18 April 2019. 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 and the review applicant applied for review.

5.    The review applicant appeared before the Tribunal on 16 September 2021 to give evidence and present arguments.

6.    The Tribunal put to the review applicant that the department had indicated that the applicant had no history of travel to Australia and even though it accepted that she had family in Lebanon they were concerned about the security situation in North Lebanon. The review applicant stated that the applicant had many reasons to return to Lebanon and no reason to remain in Australia. He stated the applicant was attached to her husband, and to Akkar where she had lived her entire life, enjoyed her relatives company and was a housewife. He stated she had 4 children in Lebanon who were in their twenties and were all married except for one that was single. The review applicant stated the applicant only wanted to visit Australia to see the review applicant’s children and the only direct family she had in Australia was the review applicant. 

7.    The review applicant stated he obtained his permanent residency through marriage, however prior to that he had made mistakes in relation to his previous visas and was sorry for that. None of his parents or siblings had previously been to Australia.

8.    The Tribunal put to the review applicant that the situation in Lebanon had dramatically changed since the Department’s decision, that is its severe economic depression had worsened, a currency collapse has caused inflation to skyrocket and left people unable to buy food, while supplies of fuel, electricity and medicine were running short. The Tribunal put to him the situation in Lebanon was a reason why people were leaving. The review applicant  stated the Lebanese government had been corrupt for a long time, the review applicant had applied for the visa applicant to visit a long time ago and what was happening to the government was not relevant since the review applicant supported his parents and his father also had access to support similar to Medicare.  He also stated they lived in their own house and had green houses. The Tribunal put to the review applicant that the currency collapse was not limited to the South. He stated that with his help, his parents lived better than they lived before. 

9.    The review applicant also stated he was willing to lodge a bond of $200 000.

1. Movement records indicate the review applicant arrived in Australia [in] June 2008 on a student visa that ceased on 29 November 2010. [Information deleted]. On 23 November 2015 the review applicant approached Status Resolution as an unlawful non-citizen and stated his intention was to lodge a partner visa application which was eventually granted on 7 December 2017 and the review applicant was subsequently granted permanent residence.

COUNTRY INFORMATION

1. According to BBC Lebanon crisis deepens as PM-designate quits over cabinet deadlock Lebanon crisis deepens as PM-designate quits over cabinet deadlock - BBC News accessed 10 August 2021:

Lebanon's Prime Minister-designate Saad Hariri has given up trying to form a new government after nine months of deadlock over its make-up, pushing the country deeper into crisis.
Mr Hariri said it was clear that he would not be able to agree on cabinet positions with President Michel Aoun.
The last government resigned in the wake of the massive explosion in Beirut in August that killed 200 people.
Since then, Lebanon's severe economic depression has got worse.
A currency collapse has caused inflation to skyrocket and left people unable to buy food, while supplies of fuel, electricity and medicine are running short.
The World Bank has blamed the situation on Lebanese politicians being unable to agree on a way forward.
Other countries have refused to provide billions dollars of aid until they form a new government that can implement reforms and tackle corruption.

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 telepconference, the Tribunal's observations were that the review applicant was given ample opportunity to submit all the evidence that they wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the review 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, her son. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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)).

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 600.612):

   ·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.

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

6. The Tribunal has considered the personal circumstances of the applicant who was born in 1968, is married and lives in Akkar, North Lebanon. The applicant has property and family in Lebanon including her husband and children and other extended family. The Tribunal is satisfied that the applicant has ties to Lebanon.

7. Although the applicant has her husband, children and other relatives in Lebanon, she also has ties to Australia in that her son and his family is here.

8. The Tribunal considers that the more recent events in Lebanon are a significant push factor for external migration and the applicant's family links in Australia constitute a strong incentive for him to remain in Australia. As stated, even though the applicant has family and property in Lebanon, country reports suggest Lebanon is facing economic collapse. The Tribunal considers that the current turmoil in Lebanon is a significant push factor for external migration. In addition, the applicant has never previously travelled to Australia and when the review applicant did, he overstayed his temporary visa, [and] was ultimately successful in applying for a permanent visa on spouse grounds. While the review applicant apologized for his past migration history at hearing, and despite the review applicant's protestations to the contrary, the Tribunal is not satisfied that if the applicant were to come to Australia then given the crisis in Lebanon, that she would not also seek to remain.  Neither does the Tribunal consider any separation from her husband and children would be permanent if she should seek to change her visa status onshore and subsequently sponsor at least some of them.

9. The Tribunal has some sympathy for the review applicant who clearly wants to see the applicant. However, 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, even if the review applicant’s intention is for the applicant to return to Lebanon and even if a considerable bond were imposed.

DECISION

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

Angela Cranston
Member