Arjan (Migration)

[2017] AATA 98

Arjan (Migration) [2017] AATA 98 (9 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Hala Arjan

VISA APPLICANT:  Mr Omar Arjan

CASE NUMBER:  1606210

DIBP REFERENCE(S):  Not recorded

MEMBER:Di Hubble

DATE:9 January 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 09 January 2017 at 1:34pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Lebanon – Tourist stream – Subclass 600 (Visitor) – Genuine temporary entrant – Single young male applicant – Irregular large deposit in bank account – Economic and security concerns in northern Lebanon

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2, cl 600.211, 600.221, 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 7 April 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 29 March 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 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).

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 visit Australia temporarily.

5. The review applicant, who is the visa applicant’s sister, sought review of the delegate’s decision on 3 May 2016.  A copy of the delegate’s decision accompanied the review application.

6. The review applicant appeared before the Tribunal on 6 January 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from the review applicant’s sister, Miss Iman Arjan, and her uncle, Mr Ahmad Arjan.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7. In response to the Tribunal’s questions, the review applicant claimed that the visa applicant:

   ·Is 18 years old and single.  His parents are in Lebanon, as are 3 brothers and 1 sister, all of whom are married except for the youngest brother.  He has 2 sisters (the review applicant and Miss Iman Arjan) in Australia;

   ·Works in a company that does air-conditioning and lots of other things; she forgets the name of his employer.  He picks up goods and fixes them.  She does not know any more than this and cannot be more specific about her brother’s job;

   ·Has money in the bank, she does not know how much, but no other assets.  Asked by the Tribunal about deposits into the visa applicant’s bank account on 12 March 2016, approximately 3 weeks before the visa application was lodged, which totalled approximately $5,000 USD in 1 day, the review applicant claimed it was his income.  When the Tribunal noted that a letter from the applicant’s employer indicates that he earns $1,000 USD per month and, on that basis, it was unlikely to be his income, the review applicant said that she does not know anything about this subject;

   ·Has never travelled overseas before.  He wishes to come to Australia for 3 months to have a rest because he looks after his parents and younger brother.  She is divorced and lives with her 7 year old son so she thought he could stay with them and support her for a few months.  She works in family day care and earns $3,500 to $4,000 per fortnight;

   ·Will go back to Lebanon on time and if he doesn’t the police can come to her house and send him back;

   ·Moved with the family from Bab al-Tabbeneh in Tripoli to Bhannine in Akkar 6 months ago after her brother’s visa application was refused.  Asked why the family had moved, the review applicant indicated that Bab al-Tabbeneh is next to Jabal Mohsen – there is a lot of trouble there and they prefer to live far from that place.  Her father drives taxis in Bhannine.  They rent in Bhannine and the family home in Bab al-Tabbeneh is empty.  However, they intend to stay in Bhannine for good; they are happy there. 

8. Miss Iman Arjan told the Tribunal they want their brother to come and visit because it is difficult for them to travel to Lebanon to visit him.  They both have jobs and families here, and going overseas would affect their children’s schooling.  They have brought their mother to Australia 3 times and every time she comes out it makes them happy.  Their mother’s last visa application was applied for at the same time as their brother’s visa application; she came out in 2016 but his was refused.  

9. Mr Ahmad Arjan told the Tribunal that his nephew only wants to come here to visit the family. 

10. The Tribunal then put the following country information to the review applicant for her comment:

    A December 2015 Lebanon country information report by the Department of Foreign Affairs and Trade (DFAT), states (at 2.36), that Lebanon is broadly stable, but the security situation is fragile and could deteriorate with little notice.  Lebanon has low to moderate levels of crime, which have increased, likely as a result of the weak economy and significant influx of Syrian refugees since 2011…  Incidents of violence influenced by long-standing sectarian tensions have decreased, ostensibly in response to successful interventions by the Lebanese authorities…  However, this stability is being constantly tested by the conflict in neighbouring Syria, including through the large influx of Syrian refugees, and the presence in Lebanon of extremist groups, such as Daesh and al-Nusra, with an intent to perpetrate violence in Lebanon and agitate the pre-existing sectarian tensions within Lebanon.

    The most recent DFAT “Smart Traveller” report, issued in December 2016, strongly advises Australians not to travel to Tripoli and northern Lebanon, north of a line from Tripoli to Sir Ed Dinniyeh and Arsal due to ongoing clashes between Lebanese security forces and militants in the region.  Lebanese authorities assess that a number of the extremists have sought refuge in northern Lebanon including throughout the Akkar district.

    As an example of this, about a week ago the Lebanese Army arrested members of a sleeper-cell in north Lebanon that had been planning a shootout followed by a suicide attack during the holiday season…  The army had obtained information on a militant cell operating in the northern city of Tripoli at the behest of fugitive extremist suspect Shadi Mawlawi.  The cell's plan was allegedly to target a gathering, first with rocket-propelled grenades, hand grenades followed by heavy gunfire.  A suicide bomber had planned to then detonate himself when bystanders and medics gathered to aid the wounded.  A security source quoted by the newspaper refuses to specify which venue was going to be targeted by the cell… [Shadi Mawlai] … is wanted for his alleged links to the perpetrators of a Jan. 10 double suicide bombing in the Jabal Mohsen district of Tripoli that killed at least nine people and wounded more than 30. He is also wanted over his connection to a series of suicide bombing plots last year that were foiled by the Army:  “Lebanese Army averts mass holiday attack”, The Daily Star, 31 December 2016.

11. The Tribunal noted that in addition to security risks in Lebanon, there is an economic overlay because the visa applicant comes from the Akkar district, which is one of the most impoverished regions of Lebanon.  For example, it was recently claimed in the Daily Star (July 5 2016) by a professor of political science and international affairs at the Lebanese American University, Imad Salamey, that:

    The government was largely absence from many Sunni-populated areas in the north, forcing you to confront issues of security and unemployment alone.  It is typically the case [in Lebanon] that the Sunni population in the north is affected by underdevelopment and is largely ignored.  But we cannot just combat poverty by putting in security measures. We need to produce economic activities for youth so that their survival and livelihoods are ensured.

12. The Tribunal suggested that the security situation and the economic position in that part of Lebanon could cause the Tribunal to question whether the visa applicant, who is young, single and of working age, genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

13. In response, the review applicant said she wants her brother to come here so she can have a rest from working and he can see all of them instead of them going there, which is difficult.  He has to go back because he looks after her parents and her youngest brother; he cannot stay here.

14. The Tribunal noted that it has, historically, received high levels of review applications in respect of young, single men from the Akkar region of Lebanon who travel to Australia on visitor visas and then lodge protection visa applications.

15. The review applicant claimed, in response, that her brother is very far from the militia groups the Tribunal had mentioned in the report; she has never heard him mention any of those militia people.  She doesn’t listen to the news and it’s the first time she has heard about all of these problems in Lebanon because she is really far away from anything to do with that; she is busy with her work and her son so they don’t really deal with all that.  There is nothing behind the application other than a visit; her brother is not going to do anything else.  Her mum came out her for 3 months in April 2016.  Her mother and her brother applied together as she wanted them to come together.  They gave her mother a visa but refused her brother.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. The visa applicant seeks the visa for the purpose of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

18. 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)). However, as the visa applicant has never previously held an Australian visa, cl.600.211(a) is not relevant.

19. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

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

21. The Tribunal acknowledges the visa applicant’s stated reasons for wishing to visit Australia and, in particular, his desire to see various family members, including 2 of his sisters.  The Tribunal also acknowledges that there are factors that would provide some inducement for the visa applicant to return to Lebanon at the end of a visit to Australia, including the fact that his parents and 4 of his siblings live there.  Finally, the Tribunal acknowledges that the visa applicant’s mother has previously travelled to Australia on approximately 3 occasions, most recently in 2016, and departed in a timely fashion on each occasion.

22. However, the Tribunal considers that the visa applicant’s mother’s personal situation is very different to his own – she is an older, married woman who has a well-established life in Lebanon, where the majority of her children live.  By contrast, the visa applicant is 18 years old and single. 

23. Although the visa applicant produced a letter to the Department in which it was claimed that he has worked since January 2014 as the foreman of a company that trades in construction materials, the review applicant appeared to know very little about her brother’s employment, notwithstanding that she maintained he had not changed his employment since relocating to Bhannine approximately 6 months ago and he was still working for the same employer in Halba.  The review applicant clearly did not know how much her brother earns, which according to the letter from his employer is $1,000 USD per month, claiming that total funds of approximately $5,000 USD that were deposited into his account in the course of 1 day was his income.  However, the Tribunal does not consider plausible, and ultimately does not accept, that the visa applicant was paid the equivalent of 5 months’ pay in the course of 1 day.  The Tribunal considers the more likely explanation to be that these funds do not, in fact, belong to the visa applicant but were instead put into his bank account by family members approximately 3 weeks before he applied for the visa in an effort to demonstrate that he had available funds.  Ultimately, the Tribunal could not, on the evidence, be satisfied as to the source of the funds that the visa applicant has demonstrated for the purposes of the visa application.

24. The Tribunal’s concerns about the visa applicant’s individual economic circumstances must also be viewed against the overall economic backdrop of northern Lebanon, which is a financially impoverished area that has become even more so as a result of the influx of large numbers of Syrian refugees in the last few years.  In addition, although there has been some improvement to the security situation in the north of Lebanon due to government interventions, the country information referred to by the Tribunal indicates that the security situation remains fragile, given the number of extremists who have sought refuge in the north of Lebanon, as evidenced by the Lebanese Army’s recent interception of a militant suicide cell in Tripoli, where the visa applicant lived until 6 months ago, and which is only approximately 20 minutes by car from his current residence in Bhannine.

25. Having considered all of the available evidence, including country information about the fragile security situation currently prevailing in the north of Lebanon, where he hails from, the Tribunal was not satisfied that the visa applicant genuinely intends a temporary stay.  The review applicant sought to negate the country information by insisting that the visa applicant would return to Lebanon due to the presence there of his immediate family and his employment.  However, the Tribunal ultimately was not persuaded that, in the current economic environment and the security situation in the north of Lebanon overall, there are sufficient incentives for the visa applicant to return there at the end of his proposed stay.

26. The Tribunal acknowledges that the review applicant and her family would enjoy a visit from the visa applicant.  Although the Tribunal carefully weighed the visa applicant’s individual circumstances, the Tribunal was, ultimately, unable to overcome its high levels of concern as to the visa applicant’s intentions about returning to Lebanon, given the state of the Lebanese economy and the security situation in the north of Lebanon.

27. 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

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

    Di Hubble
    Member