Taleb (Migration)

[2019] AATA 268

Taleb (Migration) [2019] AATA 268 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yousef Taleb

VISA APPLICANT:  Mr Mahmoud Toufic

CASE NUMBER:  1724788

HOME AFFAIRS REFERENCE(S):           BCC2017/2395387

MEMBER:Paul Windsor

DATE:24 January 2019

PLACE OF DECISION:  Melbourne

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 24 January 2019 at 7:56am

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – genuine temporary entrant – sponsored family stream – trip to visit Uncle and family – applicant well settled in Lebanon – family ties and secure employment – family members complied with visa conditions – review applicant willing to offer security – decision remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), cls 600.211, 600.231, 600.612

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 3 August 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 5 July 2017. 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 (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 visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  The decision record indicates that this is because, after considering the visa applicant’s personal circumstances, such as his employment as a chef, enrolment to study, and the presence of family members who will remain in Lebanon, as well as the ongoing political and sectarian tensions in North Lebanon, including lawlessness, political upheaval and violence due to the ongoing civil war in Syria, the delegate was not satisfied that the visa applicant’s circumstances demonstrated sufficient ties to Lebanon for him to depart Australia within the validity of his visa.

5. The review applicant appeared before the Tribunal on 17 January 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant.  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 matter should be remitted for reconsideration.

   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 holidaying in Australia as a guest of his uncle. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. As the visa applicant has not held an Australian visa previously, this criterion is not relevant to his circumstances.

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.600.612):

    ·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.

13. The review applicant indicated that his family is from the Akkar region of northern Lebanon.  He indicated that his mother and three brothers and two sisters remain in Lebanon while a brother and two sisters live in Australia.  He said he first came to Australia in 2002 on a Visitor visa, returned to Lebanon and then was sponsored by his wife on a Spouse visa.  He indicated that he met his wife in Australia as his brother and her brother were partners in operating a Taxi.

14. The review applicant said that he has previously sponsored his parents and two brothers to visit Australia and they have complied with the conditions of their visas.

15. The review applicant indicated that he wishes to bring his nephew to Australia on a holiday because his nephew is very special to him.  He said when he travels back to Lebanon his nephew looks after him and drives him around.

16. The review applicant and representative indicate that the reference in the delegate’s decision record to his nephew working as a chef is incorrect and that he has never worked as a chef.  The review applicant said that his nephew, who is now 28 years old, had been undertaking a tertiary level course in computer studies, which he has now completed, and is now working at the Ayn Alzahad municipality in Akkar Governate in the ‘computer works field’.

17. The visa applicant indicated that he wishes to come to Australia for 6 weeks.  He said he has been in his job for about a year and has confirmed that he will be able to get 6 weeks leave.  He indicated that his monthly salary is the equivalent of around USD700 or just over AUD1,000.  He said that is a good salary in Lebanon and indicated it was sufficient to meet his expenses.  The applicant indicated that he lives with his parents and two sisters in Akkar Governate.  He said he also has a block of land where they grow olive trees which produce an annual crop.  He said he has a girlfriend in Lebanon who is studying at the moment but they plan to become engaged after she has graduated.

18. The Tribunal discussed with the review and visa applicants and has considered the following country information, drawn from the 2017 Department of Foreign Affairs and Trade (DFAT) Country Information Report on Lebanon and other sources as indicated, regarding  the political, security and economic situation in Lebanon:[1]

    [1] DFAT Country Information report, Lebanon, 23 October 2017, sections 2.6, 2.15, 2.33-2.37 and 3.20-3.24.

    ·Since the conclusion of the civil war from the mid-1970s to late-1980s, violence between non-state actors has continued sporadically.

    ·Since 2011, the conflict in Syria has increasingly affected Lebanon, including through the presence of Lebanese nationals in Syria fighting on opposing sides and the significant influx of displaced Syrians into Lebanon. The activities in Lebanon of predominantly Sunni-linked extremist groups such as ISIL (Islamic State in Iraq and the Levant) and Jabhat Fatah al-Sham (formerly Jabhat al-Nusra) have added another layer of complexity to instability within Lebanon.

    ·Since late 2013, incidents of violence influenced by longstanding sectarian tensions have decreased, ostensibly in response to successful interventions by authorities and cooperation between traditionally opposing actors (including Hizballah, which has played a role in safeguarding some areas of Lebanon). Security plans implemented in a number of areas by the Lebanese Armed Forces and dialogue between the Sunni-dominated Future Movement and the Shi’a Hizballah have contributed to a more stable security situation in many areas.

    ·Despite this, the conflict in neighbouring Syria continues to challenge Lebanon’s stability. ISIL has a presence in Lebanon, and is intent on perpetrating violence and agitating pre-existing sectarian tensions within Lebanon. Although areas in Syria under ISIL control are diminishing, sporadic attacks by ISIL continue to occur in areas that border Syria. ISIL maintains a presence in and around Arsal and the mountainous region of Baalbek, although at the time of publication, military operations against ISIL were continuing. In-country contacts suggest that the Lebanese Armed Forces and Hizballah have been successful in subduing ISIL’s further attempts to carry out attacks in Lebanon. Hizballah has also successfully expelled militants from Jabhat Fatah al-Sham from an area near the border.

    ·Overall, DFAT assesses that the security situation in Lebanon remains largely stable, but unpredictable. Instability is greatest in areas where ISIL and Jabhat Fatah al-Sham are located, particularly around the north-eastern border, although local authorities largely contain these groups.

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

    ·The stability of Akkar Province in the North governorate is complicated by its extensive border with Syria, which is largely defined but poorly controlled and has long been a conduit for smuggling into Syria.

    ·In 2016 The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) stated that the conflict in neighbouring Syria has had a strong spillover effect on northern Lebanon, including Akkar[2] and the United Nations High Commissioner for Refugees (UNHCR) reported that as of 31 January 2018, there were 105,798 Syrian refugees residing in Akkar governorate who had registered with UNHCR.[3]

    ·In September 2017 a World Bank report regarding employment in Northern Lebanon (which includes Akkar and North governorates), found that 36 per cent of the population in this region are poor, compared to the national average of 27 per cent.[4]  In 2016, the OCHA reported that Northern Lebanon, which includes Akkar, is ‘one of the country’s most deprived regions, with severe poverty levels’ and ‘some of the worst unemployment rates in the country.  According to OCHA, out of a total population of 1.1 million people, 708,000 live under the poverty line: 341,000 deprived Lebanese, over 266,000 Syrian refugees, 88,000 Palestine refugees and almost 12,000 Lebanese returnees.[5]

    [2] ‘North and Akkar Governorate Profiles’, OCHA, 4 August 2016, CIS38A80128136 

    [3] ‘Syria refugee response’, UNHCR, 31 January 2018, CIS7B83941671 

    [4] ‘Jobs for North Lebanon’, The World Bank, September 2017, p.15, CISEDB50AD8328 

    [5] ‘North and Akkar Governorate Profiles’, OCHA, 4 August 2016, CIS38A80128136  

19. The visa applicant said the security situation is very good in Akkar at the moment and things are very quiet.  He said he has had nothing to do with any of the troubles.  He commented that he is definitely going to return home to Lebanon because he has a good job, his family are there and he has land there.

20. The representative also commented that Akkar is a relatively large region and the village where the visa applicant lives is in the middle of Akkar away from the border region.  She said there is no conflict at all in the area where the visa applicant lives.  The review applicant concurred, commenting that he returns there each year.

21. In a submission forwarded to the Tribunal on 15 January 2019 the representative submitted that the visa applicant’s intention to stay in Australia temporarily is genuine and his ties and commitments to Lebanon are far greater than his ties to Australia.  She commented that there is no information regarding conflict or unrest in the area of Akkar where the visa applicant resides.  She indicated that his property in Lebanon has an estimated value of USD70,000.  She noted that the sponsor/review applicant is of good character and runs a supermarket in Reservoir in suburban Melbourne which he established in 2012, and that he has previously sponsored family members to Australia, including his mother on three separate occasions.  Various supporting documents were also provided.

22. Considering the submission provided by the representative and the evidence given by the review and visa applicants at the hearing, and noting DFAT’s assessment that the security situation in Lebanon remains largely stable, the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.

23. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  In this regard the Tribunal has taken into account the representative’s submission that the review applicant was willing to provide a security bond of up to AUD15, 000 to ensure his nephew abides by the visa conditions.  As noted at hearing, the Tribunal has no power to request a security from the review applicant.  Tribunal accepts, however, that the review applicant’s willingness to provide security is indicative of his commitment to ensuring his nephew abides by any future visa conditions.

24. For the above reasons 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

25. 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.

    Paul Windsor
    Member