2001303 (Migration)

[2022] AATA 1588

2001303 (Migration) [2022] AATA 1588 (6 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001303

MEMBER:Rosa Gagliardi

DATE:6 May 2022

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 06 May 2022 at 2:35pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous fraudulent migration advice – applicants attempted a permanent migration outcome – political and economic crisis in Lebanon – property ownership – balance of family in Lebanon – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 20 January 2020 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 27 November 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.

5. The review applicant, [named], the applicant’s son and sponsor, appeared before the Tribunal on 3 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, [named], by phone in Lebanon.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her sons and their families in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

   cl.600.211(a)

9. 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)).

10. The [applicant’s son] when asked at hearing whether his mother had travelled to Australia previously was entirely transparent with the Tribunal that both his parents had travelled to Australia previously in around 2014 and then the following year.  [He] advised the Tribunal that unfortunately his father while in Australia in 2014 had met an acquaintance who told him that if he and the applicant wanted to stay in Australia someone could help them and that it would be easy to organise.  The applicant’s husband met with this person who then defrauded his father of AUD100,000, and without the knowledge of the applicant and her husband, arranged an application on the basis that they were organ transplant donors (presumably a Medical Treatment visa).  The person who had organised the application told them that they could go offshore and then return in 2015.  When his parents realised that they had been defrauded because they were mistakenly unlawful in Australia, they took up the issue with the Department and the police who, it was claimed at hearing, advised they could not help the applicant and her husband. 

11. The applicant’s son, the review applicant, did state that when the applicant and her husband did not attain the outcome they were hoping for, and were denied assistance by the authorities, his father turned to the person who had falsely claimed they could obtain residency and persuaded him to return the $100,000.

12. The Tribunal is not suggesting that the applicant and her husband were complicit in the fraud, and the Tribunal’s decision does not rest on the fact that the applicant and her husband used someone who falsely represented themselves as being able to help them obtain an ongoing presence in Australia.  The Tribunal’s concerns rest with the applicant and her husband’s intention on travelling to Australia to remain here beyond a temporary visit in the past.  Clearly, at that time, they did not have a genuine intention to remain in Australia temporarily.  Furthermore, they were prepared to risk a significant amount of money to remain in Australia.  The Tribunal considers that this matter goes squarely, however, to the applicant’s and her husband’s intention at that time.  In other words, they were highly motivated to remain in Australia, regardless of their ties in Lebanon and regardless of their financial circumstances in their home country.

13. Further raising concerns at hearing is that when the Tribunal asked the applicant whether she had complied with her conditions on her previous visits, the applicant categorically stated that she had, and that she and her husband had never been unlawful during their previous travel.  When her son’s evidence was put to her, the applicant stated that on this occasion she simply wanted to see her children in Australia and their families.  She had not seen some of her grandchildren as yet and on this occasion intended to comply with her visa conditions.  The applicant’s son reiterated that it was much harder for him and his 3 brothers to travel with their families to see their parents and they certainly could not travel all at once. 

14. The applicant’s migration history while certainly relevant, is not, however, determinative of the review.  The Tribunal is required to also assess the applicant’s current circumstances to determine whether on this occasion she genuinely intends to stay temporarily in Australia for the purposes of the visa.

15. At hearing the review applicant was also honest in stating that his brother had come to Australia by boat to seek protection.  The Tribunal does not place adverse weight on this matter as the applicant and her husband appear not to be involved in any political activism at all.

    cl.600.211((b)

16. 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.

17. As put to the applicant and the review applicant at hearing, the Tribunal does not have concerns that the applicant, a resident of Tripoli, wishes to come to Australia to pursue further education on a long-term basis or to pursue a career, having been a homemaker her adult life. 

18. As put to the applicant and her son, however, Lebanon has been in crisis for some time due to a range of factors including, the explosion at the Port of Beirut, inflation, a loss of confidence in the government, COVID-19, and a strong influx of Syrian refugees in the north who have been placing extra pressure on the country’s already strained infrastructure, and availability of jobs.[1]

    [1] World Bank, Lebanon’s Economic Update – October 2020, accessed on 3 May 2022.

19. The circumstances now have been compounded further due to the war in Ukraine.  According to the most recent World Bank Economic Update – April 2022, and as put to the applicant and review applicant:

    Lebanon is almost three years into an economic and financial crisis that is among the worst the world has seen.  Politically, Lebanon heads into parliamentary elections on May 15, which are highly anticipated in light of systemic failures in government.  The economic consequences of the war in Ukraine and associated sanctions are adding to Lebanon’s plights, in particular given its critical net imports of wheat (quasi-exclusively from Russian and Ukraine) and oil.
    
    ….The share of the Lebanese population under the national poverty line is estimated to have risen by 9.1 percentage points (pp) by end-2021.  Lebanon has witnessed a dramatic collapse in basic services, driven by depleting FX reserves.

    ….Subject to extraordinarily high uncertainty, real GDP is projected to contract by a further 6.5% in 2022 under the assumptions of continued inadequate macro policy responses and a minimum level of stability on the political and economic crisis, the negative impact of the war in Ukraine and associated sanctions is of a different magnitude…Lebanon will have to quickly tap new alternatives for its wheat imports from Russia and Ukraine to guarantee food security.  Additionally, surging energy prices will further exacerbate already existing crises related to exchange market pressures, highly elevated inflation rates, and likely reduce further the limited amount of electricity supplied by EdL.[2]

    [2] The World Bank, Lebanon’s Economic Update – April 2022, first accessed on 3 May 2022.

20. This information is reinforced by other country information that was also put to the applicant and the review applicant at hearing:

    The economy remains in a bad way, amid an ongoing financial crisis with inflation running at over 200%...Moreover, the Ukraine war has led to surging food and fuel prices, putting further strain on household budgets and planning the country’s food security at risk: The vast majority of Lebanese wheat was imported from Ukraine before the war. [3]

    [3] Focus Economics, 5 April 2022, accessed on 3 May 2022.

21. Other information presented at hearing indicates:

    ·Amid the ongoing economic, political fuel, power and social crises, there seems little hope the new year will be any better than the old

    Beirut: As the people of Lebanon prepare to greet the arrival of a new year, they are exhausted from the escalation of the suffering they endured in 2021.

    A year marked by additional crises affecting the health sector, the judiciary and the military is ending amid increasingly frosty relations between the country’s political leaders.

    Images of parents in tears because they are unable to buy medicine or milk for their children, and scenes of long queues at gas stations were among the most graphic illustrations of the humiliations citizens have been subjected to.

    The value of the minimum wage of 675,000 Lebanese pounds fell to just $23 as the dollar exchange rate reached an unprecedented high of 29,000 pounds.

    In the 12 past months, Lebanon has gone through crises described by the World Bank in June as “the most severe in the world”. 

    Monetary policies were blamed as the Lebanese Central Bank experienced a further sharp decline in foreign-currency reserves.  It resorted to repeatedly printing more currency to secure the necessary liquidity, which fueled inflation.

    In August (2021) it stopped subsidizing imports of fuel, and then medicines.  Workers now have to spend more than half of their salaries just to travel to work.  The lives of many people are at risk because medicine is not available to buy, or if it is, they can no longer afford it.

    Lebanon literally fell into darkness this year, as Electricite du Liban – the country’s main power company – was unable to provide minimum levels of electricity, and many people had to stop renting private generators as monthly costs soared.

    The removal of state subsidies was not accompanied by any clear mechanism for protecting citizens from poverty, as a cash-card aid program for the poor and the middle class has yet to be approved.

    The growing social instability was reflected in the security situation and rising crime rate in the country, with cases of theft increasing by 137 percent compared with 2020.

    On Feb.4.publisher and political activist Lokman Slim, a prominent critic of Hezbollah, was assassinated.  He previously said he had received death threats from the group.

    Meanwhile Hezabollah spared no effort to consolidate its control over the country, going so far as to threaten Judge Tarek Bitar, who is leading the judicial investigation into the Beirut Port explosion, accusing him of politicizing the investigation.

    Despite Hezbollah’s challenges to the Lebanese government, and US sanctions, by importing fuel from Iran via Syria in September, it did not last long amid the ongoing crises…[4]

    [4] Arab News, “As the Crises in Lebanon continue into 2022 so does the suffering of its people”, Najia Houssari, 30 December 2021, As the crises in Lebanon continue into 2022 so does the suffering of its people (arabnews.com), accessed on 3 May 2022.

22. The applicant and the review applicant were at pains to emphasise that the applicant’s husband worked as [an occupation 1] and was not greatly affected by the crisis.  Clearly, the fact the applicant’s husband could afford to pay AUD100,000 to obtain a migration outcome would indicate that at the time, the applicant and her husband were well off.  The applicant also emphasised to the Tribunal they owned their own home and had several investment properties.  Due to the situation in Lebanon the applicant and her husband did not hold funds in a bank account and had withdrawn all their money in cash which was kept at home.  In all, they had about AUD70,000. 

23. The Tribunal accepts that the applicant and her husband are not affected by extreme poverty.  Nonetheless, the Tribunal cannot rule out that the applicant and her husband are also affected to some extent by the economic and social gloom in Lebanon.  At hearing the applicant stated that now she is old and does not speak English and no longer has an intention to remain in Australia permanently.  Given the deterioration of the situation in Lebanon, the Tribunal would argue, however, that the motivation to remain in Australia would be even stronger, given Australia’s medical system and general standard of living are better than those in Lebanon.

24. Further, it would seem that despite their positive financial position when Lebanon was less economically unstable (if not less politically stable), the applicant and her husband were decidedly intent on remaining in Australia, and the Tribunal is not minded to find that the applicant’s financial circumstances in Lebanon may present a deterrent to the applicant again attempting a permanent migration outcome.

25. Further, the applicant at hearing stated that her daughter of [approximate age] years who was unmarried, and her husband, both lived in Lebanon in her household, and she would not forsake them.  Nonetheless, in view of the fact the applicant had attempted a permanent migration to Australia previously, and given the applicant on that occasion had been prepared to leave her daughter in Lebanon, the Tribunal is unable to attach significant positive weight to this matter (the Tribunal does not have information before it that the applicant’s daughter had travelled with the applicant and her husband in 2014 or 2015).

26. The other matter the Tribunal has taken into account in making an assessment about whether the applicant has a genuine intention to stay in Australia temporarily for the purpose for which the visa is granted, is that the balance of the applicant’s children and grandchildren also live in Australia and that this too would be a motivating factor to change her status onshore.

    cl.600.211(c)

27. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal acknowledges that this visa requires the imposition of a security and that the applicant probably has the means to pay a significant bond to secure the visit.  The Tribunal also notes, however, that the applicant and her husband have been prepared previously to part with significant funds with the ultimate aim of achieving a migration outcome.  The Tribunal, therefore, places limited weight on the fact the visa requires security to ensure compliance with the visa conditions.

    Conclusion

28. This decision does not mean that the applicant will never be able to travel to Australia.  An improvement in the situation in Lebanon down the track may lead to a different outcome on another occasion.

29. Having assessed the applicant’s circumstances both individually and cumulatively, and 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

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

    Rosa Gagliardi
    Member