El Achkar (Migration)

[2020] AATA 1945

El Achkar (Migration) [2020] AATA 1945 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rouba El Achkar

VISA APPLICANT:  Mr Mohamad Alachkar

CASE NUMBER:  1822438

HOME AFFAIRS REFERENCE:               BCC2018/2082279

MEMBER:Rosa Gagliardi

DATE:10 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 March 2020 at 11:55am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – care for elderly parents – impact of Syrian refugees in the Akkar region – home ownership in Lebanon – protests against the government – previous compliant family visits to Australia – stable income from employment – decision under review affirmed           

LEGISLATION

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

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 31 May 2018 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 14 May 2018. 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 he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 19 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant who is the sponsor’s brother.  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 her registered migration agent. The representative attended the Tribunal hearing.

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

   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 visiting his sister in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

10. The applicant is almost 24 years of age.  He lives with his family in Northern Lebanon, Denbo, Akkar region, that is, his parents and two younger brothers.  The sponsor’s sister also lives in Melbourne.  The sponsor and her sister came to Australia as spouses. 

11. The applicant is working as a furniture maker as an employee.  The sponsor confirmed that the applicant had been working at that company since 2015.

12. The sponsor stated that she wanted to see her brother since 2015 when she went to visit him.  She also wanted to give him a short break from work; two or three weeks.  Another brother had visited her in Australia in 2010.  He accompanied the sponsor to Australia when she came here.  He only stayed two or three months.  He just came for a holiday.  At that time he did not have his own family – he was not married.

13. The Tribunal asked the sponsor what she considered were the incentives for the applicant to return to Lebanon.  She stated that he looked after their parents.  She stated they were old and no-one could look after them.  The Tribunal observed that the applicant’s siblings lived in the house too and could look after their parents.  The sponsor stated that her other siblings were 21 and 23 and attended school.  The Tribunal observed that they were not much younger than the applicant himself so it was not clear why the applicant’s siblings could not look after their parents. 

14. The Tribunal put to the applicant country information about the circumstances in Lebanon currently and how these might differ from when her other brother came to Australia in 2010.  The Tribunal also referred in detail to the impact of Syrian refugees on the Akkar region given its proximity to the border with Syria.  This included the socio-economic difficulties experienced in an already depressed area.

15. The Tribunal gave the sponsor an opportunity to respond to this information.  She stated that the situation was very difficult but the applicant was working there and he was reliant on his income.  The sponsor stated that her parents owned their property but were not currently working.  Her father had been a butcher but was now retired.  The Tribunal asked, in that event, where the income for the household came from.  The sponsor stated that her father worked “a bit” and they had the applicant’s income.  The Tribunal noted that the applicant might earn an income but he was required to support 5 people in his household.  She stated that her father had a little income; he slaughtered meat for the family’s consumption, for example.  The Tribunal stated that given the country information, and given her brother’s age, it might be that he was coming to Australia to start a new life.  The sponsor advised the Tribunal that the applicant had his own house in Lebanon too.

16. Asked if the applicant had a partner in Lebanon, the sponsor stated that he had his eye on a young woman and he was planning to marry her but it was not official; they had not become engaged.  He was coming temporarily to Australia to celebrate their sister’s birthday and the birthday of the sponsor’s son.

17. The Tribunal then referred to the country information which showed that the economic situation in Lebanon generally was in crisis and that there had been protests against the government.  The sponsor stated that the situation was very hard there.

18. The Tribunal then spoke with the applicant overseas.  He stated that he wanted to come to visit his sister in Australia and his niece/nephew then he would return to Lebanon to his parents.  Asked if he had responsibilities towards his parents he stated that his mother was unwell and he was helping his parents in everything.  He wanted to take days off work to visit his sister in Australia.  The applicant clarified that his mother was sick and had pains in her legs and arms.  He confirmed that he worked and helped his parents and younger siblings financially. 

19. The Tribunal asked whether while the applicant was in Australia he would be paid by his employer.  He stated he would as he was taking his annual leave.  The Tribunal asked where the applicant saw himself in terms of his employment in the mid to long-term.  He stated that he saw himself working in the current position because he was very happy there. 

20. The applicant confirmed he could not stay in Australia because he had to get back to his parents.  The Tribunal noted that the applicant had siblings who were not much younger in the household who could likewise look after his parents.  The applicant stated that he was more responsible.

21. The Tribunal put to the applicant that the country information generally about Lebanon was not positive.  There had been many protests mainly in Beirut because people were unhappy with corruption and the economic situation there.  The Tribunal added that the government had also come down heavily to suppress such protests. 

22. The Tribunal also referred to the situation particular to Akkar in which Syrian refugees brought socio-economic pressures to bear on an already depressed area.  The Tribunal asked why the applicant would want to return in such circumstances.  He responded that he worked and he had nothing to do with all these problems. He had his salary and he was helping his family.

23. Asked if he was engaged to marry, the applicant responded that he had a relationship with a girl and very soon he intended to become engaged.  He stated that they were about to talk officially about getting engaged.  Asked how his girlfriend felt about him coming to Australia, he responded that he was not staying in Australia for a lengthy period. 

24. The applicant confirmed that he had a house and when he married he would move into it.  The Tribunal asked whether his house was being rented out for income and he responded that it was not. 

25. The applicant concluded that he just wanted to visit his sister and his niece/nephew and that he would go back to look after his family.

26. The migration agent submitted that in relation to the country information he understood that there were protests in Lebanon at the moment but these were occurring in Beirut only and not in Akkar.  He stated that the applicant had been employed on a long-term basis, 5 years; a significant period. He had a trade and was in stable employment.  The agent also stated that the applicant had property in Akkar and if a person had property they liked to keep it - they would not just leave it, particularly when he had someone he was going to marry in Lebanon. 

27. The agent also highlighted that the situation in Lebanon had always been unstable but the sponsor’s other brother had accompanied her to Australia and then returned home.  He was now married and living his life and the agent stated that he was sure that the applicant would do the same.

    Evidence in support of the application

    ·Identification for the applicant and attestation of residence;

    ·Letter dated 23 April 2018 from the applicant’s employer, Jamil-Kanj Est. stating the applicant had been employed at the establishment in the furniture industry since 2015, holding the position of Furniture industry professional and earning the monthly salary of 700 USD.  The letter also states that the applicant has been granted two months’ vacation on the condition he returns to work at the end of the period;

    ·

    Attestation by the Municipality of Ayn Alzahab-Denbo, Governorate of Akkar, dated

    
    

    15 February 2018,confirming the applicant was living in the village and was known by all inhabitants.  Reference is also made to the fact that the applicant has a house and approximately 5000 square metres of land in his home village of Ayn Alzahab.  It is stated that the applicant is honest and has a good reputation;

    ·

    Statement of account for the applicant indicating a cash deposit of 8,000,000 Lebanese Pounds, the equivalent roughly of AUD7972.00; statement from

    
    

    1 December 2017 to 15 December 2017; and

    ·Evidence of the sponsor’s savings.

    cl.600.211(a)

28. 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)).

29. The applicant has not provided evidence of having travelled outside his home country, particularly not to an Australia-like country.  On the other hand, the Tribunal places some favourable weight on the applicant’s brother’s travel to Australia some time ago.  The Tribunal accepts that during the applicant’s brother’s travel he complied with the conditions attached to his Visitor visa and that he returned as required of him.  The Tribunal also accepts that Lebanon at that stage was unstable and that Akkar at that time was also experiencing hardship.

    cl.600.211(b)

30. 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:

    ·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.

31. The Tribunal has taken into account that that applicant is a 24 year old single male who intends to marry.  The Tribunal has limited information to support this contention but for the purposes of the review is prepared to accept that the applicant intends to become engaged shortly and to make his relationship official.  The Tribunal places some weight on the applicant’s personal attachment that would indicate that he would return to Lebanon.  Nonetheless, the Tribunal is not satisfied that an impending engagement, of itself, would preclude the applicant attempting to maintain an ongoing presence in Australia.  Indeed, if he is to embark on married life and expects to have a family, any migration outcome he could achieve onshore would also positively affect his future bride and their life prospects generally.

32. The Tribunal also queries why, if the applicant genuinely intends to establish himself with his future wife in Lebanon, he would be using his and his family’s resources to come to Australia rather than conserve and consolidate his resources there.  That travelling to Australia is a priority at this time raises doubts in the Tribunal’s mind as to the purpose of the travel at this time. 

33. The applicant has also argued that he would need to return to Lebanon to care for his parents, even though his younger (though not much younger) siblings also live in the house. The Tribunal can see no real reason why the applicant’s siblings would not be any more able to look after the parents than the applicant.  Further, the applicant has a married brother in Lebanon who could also provide support and assistance to them.  The Tribunal is not convinced that the applicant’s parents’ health is a persuasive indicator that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

34. The Tribunal also acknowledges that the applicant is working in the furniture making industry and has done so for a continuous period of 5 years.  Given the country information about the Akkar region’s deprivations, the Tribunal appreciates that 700USD per month and stable employment would be prized.  The Tribunal notes, however, that the applicant is essentially supporting his parents and younger siblings in the household in Lebanon.  While the Tribunal appreciates that the applicant’s father is engaged in slaughtering animals for the family it appears that the only person in the home who is earning a regular salary is the applicant.  The Tribunal considers that, were the applicant able to achieve a long-term migration outcome in Australia, he would be in a position with his trade or in some other area of work, be able to earn significantly more to be able to support himself and his family overseas.  The Tribunal is not satisfied that the applicant’s work of itself represents an incentive for the applicant to stay temporarily in Australia and to abide by his visa conditions.

35. The Tribunal has also taken into account that the applicant owns a property and land in Lebanon.  The Tribunal is not persuaded, however, that as a young male who could start his life over in Australia, such assets mean that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  There is little to prevent the applicant, for example, liquidating these assets and in any event the value of property and land in Lebanon do not compare favourably with those in Australia.  While the Tribunal does not outright dismiss that the applicant’s financial position in Lebanon is relatively good, given the applicant’s family’s financial responsibilities, the Tribunal has doubts that the applicant’s assets would outweigh any benefit he would derive from establishing himself in Australia.

36. In its considerations, the Tribunal has also had regard to the almost AUD8,000 held by the applicant in a bank account.  However, the Tribunal has not been able to discern from this statement any pattern of savings and how the sum was arrived at.  Even putting such concerns that the applicant could have just placed 8,000,000 Lebanese Pounds on one occasion in the bank (from sources unknown), the Tribunal has concerns that the applicant would put in play his life savings, which would not have been easy to accumulate, to travel to Australia.  While the Tribunal accepts that the applicant will rely on his sponsor for accommodation and other necessities while he is in Australia, the sponsor has her own commitments.

37. The Tribunal has also taken into account the following country information as put to the applicant concerning the level of insecurity in the Akkar region.  Despite assurances that the applicant has a stable life, the Tribunal is not satisfied that the applicant’s family as a whole in Lebanon is not affected by the socio-economic conditions which are compounded by the influx of Syrian refugees into the country.

    Effect of the Syrian refugee population on Akkar district, including on infrastructure
    
    

    The conflict in neighbouring Syria has had a strong spillover effect on northern Lebanon, including Akkar.  As of 31 January 2018, there were 105,798 Syrian refugees residing in Akkar governorate who had registered with the United Nations High Commissioner for Refugees (UNHCR). As large numbers of Syrian refugees are not officially registered, the actual number is likely to be much higher. In their annual report for 2017, the UNHCR, the United Nations Children’s Fund (UNICEF) and the World Food Programme noted that Akkar governorate had the highest concentration of households without any legal residency (61 per cent) of any governorate in the country.
    
    
    The influx of Syrian refugees to Akkar has placed significant pressure on the region’s infrastructure, including housing and employment. Refugee Hosts notes that there has been an increase in the cost and housing in Akkar due to the Syrian refugee population. The report further states that there has been a decrease in local employment due to the presence of cheaper menial labour.
    
    
    According to the 2017 ‘Lebanon Crisis Plan 2017-2020’ published by the Lebanese government and UN, Akkar (and Bekaa) governorates have traditionally been ‘underserved areas’ when it comes to health care infrastructure. This issue has been exacerbated by the influx of Syrian refugees; Akkar reportedly hosts 10 per cent of the displaced Syrian population.  The plan concludes that in light of this, Akkar is ‘in need of more institutional support’. DFAT similarly reports:
    
    

    Healthcare facilities in Akkar and Beka’a governorates have been traditionally under-serviced and are in need of institutional support. The influx of displaced Syrians has increased competition for healthcare, affecting both displaced Syrians and lower-income Lebanese.
    
    

    In July 2017, the Carnegie Endowment for International Peace reported that the ‘pervasive inequalities in access to basic services’ are evident across Lebanon, including in Akkar where only 53.8 per cent of houses are connected to a public water supply, compared to the national average of 85.5 per cent. Further, 20.9 per cent of houses in Akkar have no running water at all, and 24.8 per cent of houses in the region are connected to a sewage system (compared to the national average of 60.2 per cent).
    
    
    The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) similarly reports that public institutions including schools and health centres need more support in Akkar.
    
    

    Levels of poverty in Akkar district
    
    

    A September 2017 report by the World Bank 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.   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.

    Regarding employment, the World Bank states that North Lebanon has an employment rate of 42.8 per cent of the working age population, which is lower than the national average of 45 per cent.  The report provides the following overview of the labour market situation in this region:

    Employment challenges for the Lebanese in this region have been exacerbated, particularly for the poorest segments, by the country’s fragility and history of conflict, and more recently by the influx of more than 1.5 million Syrian refugees…
    
    

    The working age population in the North is estimated at 610,000 individuals, of which 53 percent are inactive, leaving a total labor force of 289,000. Within the participating labor force, 20 percent are employers and 22 percent are self-employed – both largely informal. Just 49 percent of the labor force are wage employed and, of those, only 15 percent are formal wage workers. The remaining nine percent are unemployed.
    
    
    Among those who are working in North Lebanon, the vast majority are in poor quality, low productivity jobs working in enterprises of less than ten employees. The majority of workers are employed in the wholesale and retail trade sector, characterized by low productivity

    The total labor force in the North is expected to increase from 289,000 to 362,000 people by 2025, due to existing trends in the growth rate of the Lebanese working age population and current labor market participation rates. This implies that the regional economy would need to create an average of 8,000 jobs each year simply to maintain a steady state situation in the labor market…
    
    
    The participation rate in North Lebanon is amongst the lowest in the country, while the actual labor force is amongst the biggest given that the majority of its population is of working-age. This high inactivity is driven by the very low participation rates amongst women and youth in the labor market…
    
    
    It is a region that has a strong sense of neglect from the central government that has been unable to progress with the key reforms required to provide a broadbased competitive improvement to its economy…
    
    
    In a labor market providing just one salaried job for every five working age adults, the crux of the problem lies on the demand side – a private sector that fails to generate productive jobs. Tens of thousands of relatively educated, working age adults are unemployed or outside of the labor force completely. More still are stuck in low quality jobs.
    
    

    According to the report, Akkar’s economy is largely dominated by the agricultural industry.

    The ‘Lebanon Crisis Plan 2017-2020’ reports that Akkar is the most vulnerable governorate in Lebanon in terms of food insecurity. According to the report, Akkar governorate (along with Bekaa and Baalbek-Hermel) have the highest proportion of food-insecure households in the country. The report states that 20 per cent of households in Akkar have borderline or poor food consumption scores, inadequate dietary diversity and/or insufficient food intake.[1]

    [1] Department of Home Affairs, Australia, Lebanon: CI180316163847746 – Akkar, 3 April 2018.

1. While the migration agent has stressed that the applicant has a stable work position and that his family are not affected by the recent protests, the Tribunal considers that the country information indicates that the applicant’s employment stability could come under threat as the economic situation of the country has deteriorated.

2. While the applicant might not be involved in protests and these are not being held in Akkar, the Tribunal to has concerns that together with the already depressed economic conditions in Akkar as set out above, the reasons for the protests are likely to affect many households across the country.  A recent Human Rights Watch sets out the situation.

   ...Lebanon’s authorities are failing to address a massive economic and political crisis that is endangering citizens’ access to vital services, including health care, Human Rights Watch said today in its World Report 2020.  Security forces have at times failed to protect protestors from violent attacks by counter-demonstrators.  Anti-government demonstrations began on the evening of October 17, 2019, after the government announced new taxes, including on the messaging application WhatsApp, which it soon revoked due to popular outrage. The countrywide protests intensified as people directed their anger against the entire political establishment, whom they blame for corruption and the country’s dire economic situation.

   “Lebanon’s politicians have done little to stop living standards from plummeting and have not responded to protesters’ concerns about the worsening economic crisis,” said Joe Stork, deputy Middle East director at Human Rights Watch. “Their dereliction is threatening to drastically worsen access to health care and the availability of medical supplies.”
   ….
   The financial crisis is endangering access to health care, as medical practitioners and public officials warn that hospitals may soon not be able to perform life-saving surgery or provide urgent medical care. The crisis stems from the government’s failure to reimburse private and public hospitals, including funds owed by the National Social Security Fund and military health funds, making it difficult to pay staff and purchase medical supplies. In addition, a dollar shortage has restricted the import of vital goods and led banks to curtail credit lines.

   Authorities detained and charged people for speech critical of government officials, especially corruption allegations, and of religious institutions. Lawyers also used the defamation laws to file complaints against individuals and publications that express concern about the country’s economic situation.

   Women, who have played a leading role in the protests, face systematic discrimination under Lebanese law. An estimated 250,000 migrant domestic workers are excluded from labor law protections and are at risk of exploitation and abuse.

   The Higher Defense Council made several decisions that increased pressure on Syrian refugees in Lebanon, including to deport Syrians who enter Lebanon illegally, to demolish the refugee shelters, and to crack down on Syrians working without authorization.[2]

   [2] Lebanon: Little Action on Corruption, Economic Crisis, Human Rights Watch, World Report 2020, accessed on 10 March 2020.

3. At hearing the sponsor acknowledged that the situation in Lebanon was “bad” although the migration agent stated that things in Lebanon had always been unstable.  The migration agent is correct in his statement that Lebanon, unfortunately, has had a long history of civil strife and sectarian divisions. 

4. However, the Tribunal can only have regard to the characteristics of the applicant and the factors that would encourage him to return home on expiry of his visa now.  While the applicant’s brother complied with the conditions of his visa during his stay here, and had a similar profile to the applicant, with the economic circumstances currently being “dire”, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

   cl.600.211(c)

5. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal notes that the sponsor is willing to advance security to secure the visit.  In light of the situation in Lebanon currently, however, the Tribunal is not satisfied that any amount of security will ensure the applicant’s compliance with his visa conditions.

6. 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

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

   Rosa Gagliardi

   
   

   Member