El-Hassan (Migration)

El-Hassan (Migration) [2020] AATA 210 (23 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohamad El-Hassan
VISA APPLICANTS:  Ms Hajar Hassan
Master Mohamad Alzidan
CASE NUMBER:  1818565
HOME AFFAIRS REFERENCE:                BCC2018/2288225
MEMBER:Rosa Gagliardi
DATE:23 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

Statement made on 23 January 2020 at 4:08pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine intention to stay temporarily – visa applicant’s home in area affected by extremists, war and refugees – employment and ownership of assets – living apart from husband – husband and son’s citizenship of another country and residency status in applicant’s home country – general socio-economic conditions – review applicant and wife’s finances and health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, 600.231
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 June 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 22 May 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.
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.
The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because he/she was not satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.
The review applicant/sponsor appeared before the Tribunal on 3 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant, Ms Hajar Hassan overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The review applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the first named visa applicant, together with her child, seek the visas for the purposes of visiting her brother and family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.
NB: “The applicant” is used in this decision to refer to the “first named visa applicant”.
The hearing
The sponsor has 6 brothers and 3 sisters. A brother is living in Sydney but the remainder of his family is living in Lebanon.
The applicant is 25 years of age and is married. She was born in a village in Lebanon called Tikrit. Her husband works in the army and she works in a hospital. They have one child together who is 4 years of age. The sponsor stated that he wanted the applicant to travel here because financially he could not afford to go to Lebanon and he wanted to be able to bring his siblings one by one so that he could see them, and they could meet his 5 children. The applicant has no family members in Australia.
The sponsor stated that he came to Australia on a spouse visa and that his brother came as a student and married an Australian citizen and remained here. The Tribunal asked whether there were any unmarried siblings in his family, and he responded he had a brother who was not married. Asked why that brother was not invited given his sister has a child to care for, the sponsor responded that he had applied for him to come to Australia but was refused.
The Tribunal noted that the child of the parties was born in Damascus, Syria. The sponsor agreed that was the case. The sponsor explained that the applicant’s husband is Syrian and was living in Damascus so their child had Syrian citizenship. The applicant had also been living in Damascus but then returned to Lebanon to live. The applicant’s husband is not a citizen of Lebanon.
The sponsor stated that he wanted the applicant to come to Australia for up to 3 months. Asked how the applicant would survive while she was in Australia, the sponsor stated that she would live with him at his home with his children. He had a garage which had appropriate amenities for them to stay independently.
The sponsor stated that the applicant had been in her cleaning job at the hospital for three years and her son goes to childcare.
The sponsor confirmed that the applicant’s husband worked as a soldier for the Syrian army.
Asked why the Tribunal should be satisfied that the visa applicant was genuinely intending to stay temporarily in Australia for the purpose for which the visa was granted, the sponsor stated that he could not keep her in Australia. He could not help her to stay here. He just wanted three months to see her. The Tribunal queried whether the sponsor could not go on his own to Lebanon, and he responded that he did not like to go on his own and his family there wanted to see the children. He was medically able to travel but he did not want to go on his own.
The Tribunal then put to the sponsor information regarding the Akkar region which indicated that the Lebanese authorities considered that extremists had sought refuge in the area. The conflict in neighbouring Syria had also had a strong spill-over effect for northern Lebanon, including the Akkar area. There were many refugees residing in the Akkar governorate and there were many living there illegally. This placed significant pressure on the region’s infrastructure including in housing and employment.
The Tribunal remarked that given these conditions the applicant may be attempting to start a new life here with her family. The sponsor stated that she would not do so because he would have responsibility for her.
The sponsor stated that he did have the money to support the applicants and the first-named visa applicant would bring money to cover her expenses.
The sponsor’s wife also gave evidence. She stated that they only intended the applicants to visit - she had not seen them for 10 years now.
The Tribunal then spoke to the applicant. She was at that time staying with her parents. She stated that she wanted to see her brother and his family. She stated that the situation in Lebanon was not good but she was looking forward to seeing them. She stated that it was up to the authorities the length of time she would stay in Australia.
The applicant confirmed that her child was born in Syria because the child’s father lived in Syria. They had lived there for a while as a family but then due to the war she went to live in Lebanon. Her husband was not living in Lebanon. The applicant stated that he was a soldier in the Syrian army. The Tribunal asked whether she was living separately from her husband. The applicant stated that she and her husband were still together and she visited him, but recently the situation had not been good so she had stayed away.
When asked, the applicant stated that she was not a citizen of Syria as was her husband. In terms of her work, the applicant stated that she did cleaning to be able to support her son. Her husband did not send her money to support them because his income was very low.
The Tribunal asked whether the applicant had savings and she responded around 50 dollars (presumably US dollars). The applicant stated that she was living in her parents’ home and she had no other assets. The Tribunal asked how the applicant would survive when she came to Australia. She responded that her brother, the sponsor, would support her and show her around. The Tribunal noted that her brother had 5 children to support as well. She stated that she would stay at home with the family.
Asked why the Tribunal should be satisfied that the applicant was not coming to Australia to make a new life for herself and her child, the applicant responded that she only wanted to come for a visit and she wanted to take her son back to his father who has Syrian citizenship and was based in Damascus.
The Tribunal noted that the applicant had conceded that the situation in Lebanon was not good and the country information showed that the socio-economic circumstances in Akkar were of particular concern. The Tribunal put the relevant information to the applicant. The applicant responded that she worked at the hospital and supported her son; she had been working; she had no problem. The Tribunal asked the applicant what she meant when she had stated that the situation in Lebanon was not good. The applicant responded that there was a bit of fear. People were shooting other people and there had been some protests in the streets. People were not happy. But she had no problems at all ;she was working and supporting herself and her son. She just wanted to come to Australia to see her brother. She would then return to Lebanon because she had her job to go back to and she could not deprive her husband from seeing his son.
The applicant would not be paid while she was in Australia but her pay would be resumed on return to her job. She had also registered her son with the United Nations who paid him a certain amount of money every month.
The applicant stated that she would return to Lebanon because it is her country and she could not live anywhere else. She was comfortable in Lebanon. She had taken her son to Lebanon to meet his grandfather, but she wanted to bring him back to Syria to see his father because he missed him.
The sponsor confirmed that he was not currently working due to the pain in his legs, arms and back. He was reliant on Centrelink.
The sponsor reinforced that his sister was not a single woman. She would return to her home and family.
The following material has been provided in support of the application and review:
·Copy of sponsor’s bank transactions;
·Identity documentation for the applicants;
·Household registration document for the applicant, her husband and their child (born on 16 August 2016) as domiciled in Syria;
·Appointment of the applicant as the second-named visa applicant’s “legal guardian”;
·Statement from Ministry of Interior and Municipalities, dated 26 April 2018, confirming the applicant owns a house where she currently lives in the governorate of Akkar, and also owns a block of land planted with olives and almond trees;
·Medical evidence that the sponsor’s wife was pregnant as at 24 April 2018, and was due to give birth on 4 June 2018. The G.P expressed a view that she needed a relative to come from Lebanon to help her with her children (all under 8 years of age, with one with ADHD) and to stay at least 6 weeks after the birth;
·Letter from Social Worker, Antenatal Clinic, dated 26 April 2018, confirming that the sponsor and his wife were expecting their 5^th child and that they needed support from the applicant to support the sponsor’s wife post birth. It is also explained that the sponsor’s wife has a complex social situation and requires the support of family at this time as she is highly anxious and stressed. She also has a multitude of health issues both physical and emotional;
·Evidence from G.P, dated 26 April 2018, certifying that the sponsor has chronic schizophrenia and was taking strong psychotropic medication for his medical condition and that his wife was his carer. The G.P also wrote that the sponsor’s wife was pregnant and that the sponsor needed his sister to assist with their five children after the arrival of their new born; and
·Further letter from sponsor’s G.P., dated 22 November 2019, referring to the sponsor’s medical problems and stating he would benefit greatly from his sister visiting Australia.
cl.600.211(a)
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)).
The Tribunal has little information about whether the applicant has travelled previously to a country such as Australia. From her evidence it would appear that she travels from Damascus over the border to Lebanon from time to time, as her husband is working there in the army and she is attempting to maintain a relationship between her son and his father. The Tribunal places only minimum weight in the applicant’s favour on this migration history, however, as clearly the applicant was forced to flee with her son back to her original homeland, Lebanon, because of the war there.
cl.600.211(b)
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.
At the time of application the applicant stated that she was a “house wife” and unemployed but has now claimed she is working as a cleaner in a hospital. Even though there is limited evidence to support the applicant’s claim that she is in paid work (for example, evidence of payslips, other documentation), the Tribunal is prepared to accept that the applicant’s circumstances have since the time of application changed in that she has procured paid work. The Tribunal considers that such work represents a minor incentive, however, for the applicant to return to Lebanon with her young son, particularly when viewed with the applicant’s overall economic circumstances. The applicant gave evidence that she has 50 dollars in savings in the bank. Her son also receives some assistance from the United Nations as the child’s father is unable to provide financially for the family. It is evident that there are significant imperatives for the applicant and her family to seek to migrate to a more prosperous and peaceful location.
The Tribunal has taken into account that the applicant appears to own her own property, even though currently she is living with her parents in Lebanon and that she owns productive land as well. The Tribunal is not convinced, however, that such assets of themselves mitigate the Tribunal’s concerns about the applicant’s limited ability to save funds for herself and her child. It is clear that whatever income she might derive from the land, for example, is not significant and that her cleaning job does not permit her to be able to save funds in the event of any emergency.
The sponsor is also on a limited income so it is difficult to see how the sponsor would be able to accommodate the applicant and her son for a period over a month or longer.
The Tribunal is most concerned, however, that the applicant is attempting to achieve a long-term migration outcome to Australia due to her circumstances in which her husband is a Syrian national, as is her child. It is unclear, for example, what right the applicant’s husband and her child have to live in Lebanon on a permanent basis and whether it is their intention that the family should ever live together in Lebanon in the long-term, or whether the applicant will need to return to Syria on a more permanent basis with her husband and child because this is where her husband and child have a right to live and reside.
The Tribunal notes that recent country information indicates that the city of Damascus is slowly returning to normal even if areas nearby have not escaped the worst of the fighting. This is because Damascus has been held by the government as opposed to opposition-held areas.[1] Nonetheless, the economic recovery process will be lengthy and many people, especially the young, are choosing to leave Damascus due to the uncertainty about the future.[2] For the applicant to contemplate a life for her son in Syria would be difficult and the Tribunal is not convinced that if the applicant were able to change her status onshore, she would not do so to secure a better future for her son (the second-named applicant) and possibly her husband.
[1] “Damascus is slowly returning to normal but for those nearby, life could not be more different”, November 2018.
[2] Ibid.
The applicant’s son is on the threshold of starting school and the Tribunal has doubts that the applicant would want her son to resume a life in a war-torn country.
The Tribunal appreciates that the applicant’s son wants to be with his father but any opportunity to start a new life in a stable country would outweigh any other considerations for the first-named visa applicant (as the second-named visa applicant does not actually have the ability to form an intention about such matters). In any event, it is clear that the first-named visa applicant has spent periods away from her husband without difficulty.
Were the family to make a decision that they would settle permanently in Lebanon (again presuming that the applicant’s husband has the right to reside in Lebanon) the country information for that country shows that it has not escaped the effects of the Syrian war and that it has created particular hardships in the Akkar region where the applicant is from.

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

The Tribunal also has concerns about the unstable security situation in the Akkar region. The Department of Foreign Affairs’ advice indicates that persons should not travel to the Akkar region and that “Lebanese authorities assess that extremists have sought refuge in northern Lebanon, including throughout the Akkar district”.[4] The applicant herself expressed a sense of fear about living there, although she minimised this.
[4] Australian Government, Department of Foreign Affairs and Trade, Lebanon, last updated 22 June 2018 and still current at 16 April 2019, accessed on 15 April 2019.
There is also the issue of the applicant’s husband having to leave the Syrian army were they to settle in Lebanon full-time, and how he would re-start a new working life in an economy with high unemployment rates.
It appears that the applicant has family members in Lebanon but her immediate family members, being her husband and child, are citizens of another country and in some respects her fate is linked to where they will ultimately settle as a family.
Given the circumstances in both Syria and Lebanon, the Tribunal has serious questions about whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

cl.600.211(c)
The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal sympathises with the sponsor’s family’s hardships and health issues. The Tribunal appreciates that the family requires support, particularly as the 5^th child has now been born. While the applicant would be able to provide some support and indeed the sponsor would derive emotional support from the applicant being in Australia, unless she were planning to migrate to Australia permanently, any practical help the applicant could provide the family would only be a stop-gap measure.
The Tribunal has considered the circumstances of this Australian citizen family but the regulations require the Tribunal, no matter how sympathetic it might be, to focus on the intention of the applicant and to take into account her circumstances and those factors which would motivate her to return to her home country.
In terms of the second-named visa applicant, as a dependent minor he is unable to form an intention to comply with his visa conditions so his conduct will be dictated by his mother’s intention.
Having considered the evidence individually and cumulatively, the Tribunal is not satisfied that the visa applicants genuinely intend 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
The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.
Rosa Gagliardi
Member

[2020] AATA 210

23 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention