El-Hawli (Migration)

[2017] AATA 1490

El-Hawli (Migration) [2017] AATA 1490 (22 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ziad El-Hawli

VISA APPLICANT:  Mr Wahib Jabakhanji

CASE NUMBER:  1707280

DIBP REFERENCE:  BCC2017/714416

MEMBER:Rosa Gagliardi

DATE:22 August 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 22 August 2017 at 6:15pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 – Genuine temporary entrant – Limited family commitments in Lebanon – Problematic savings history – Lengthy period absent without work – Political and sectarian tensions – Population pressures from Syrian refugees

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 600.211

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 14 March 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 21 February 2017. 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 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 28 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.  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 his uncle and family (the sponsor) and other extended family members as well as undertaking general tourist activities.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

9. The applicant is the nephew of the sponsor.  He lives in Tripoli in Lebanon and is 24 years of age.  He told the Tribunal that he is not married, does not have a partner and is not engaged to be married.  He lives with his mother and father in Tripoli. He has several siblings.  The applicant is a driver for a distribution company in Tripoli.   The father of the applicant works as a carpenter in the upholstery industry.  When asked, it was stated that the applicant’s father sometimes worked full-time and on other occasions worked part-time. 

10. The evidence in respect of this case is as follows:

    ·A statement dated 26 December 2016, from the applicant’s employer, Fadi Taleb Harb, certifying that the applicant works for the company as a “goods distributor” and that he earns what is equivalent of US600 per month;

    ·Evidence of a bank account with balance of US7,163.75; and

    ·Evidence of the sponsor’s savings in Australia with a balance of $9,323.48.  The sponsor and his wife own a fruit and vegetable shop in Australia.

11. At hearing it was argued that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and that he simply wanted to have around 40 days in Australia to spend time with family and to have a holiday at the same time.

    cl.600.211(a)

12. 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)).

13. The Tribunal does not have evidence before it to indicate that the applicant has travelled outside Lebanon previously or that he has travelled to Australia.  The Tribunal places some adverse weight on this matter but it is by no means determinative of the review.  It is not always the case that there is a correlation between those with a history of travel and compliance with visa conditions.  There are other factors highlighted in this decision which are of greater concern to the Tribunal.

    cl.600.211(b)

14. 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.

15. The Tribunal is concerned that the applicant is unencumbered in Lebanon by his own family/children, property or any other attachment that would be an incentive for him to return to Lebanon.  While the Tribunal accepts that his parents and siblings may represent some incentive to return to Lebanon, given the applicant is unmarried and is not betrothed, the Tribunal considers that his affective ties to Lebanon are tenuous as it would not ordinarily be expected that the applicant would continue to live with his parents indefinitely in any event. 

16. The Tribunal has taken into account that the applicant is employed in Lebanon and is earning a salary.  However, the applicant is now 24 years of age and has few personal commitments in Lebanon. Severance of his ties to Lebanon could occur with the minimum of difficulty.  The applicant also has no personal assets to complicate any attempt to change his status onshore, for example.

17. The Tribunal is not persuaded that the applicant’s employment alone means the applicant has a genuine intention to remain in Australia temporarily.  The applicant is at the beginning of his adult life, and were he to be able to change his residency onshore it would be life changing in terms of gaining a higher standard of living, closeness to other family members, as well as being able to take up a similar type of work given his skills are transferable.  The Tribunal is not satisfied that the applicant’s employment in Lebanon is of a nature or remunerated in a manner that persuades the Tribunal it exceeds what he could secure in Australia were he to build a future here.  In this sense, the Tribunal has concerns that the applicant may attempt to change his visa onshore and not return at the end of the permitted stay in Australia.

18. The Tribunal also finds the evidence in terms of the applicant’s savings problematic. The Tribunal notes that a large deposit was made of US6,000.00 on 19 September 2016 and a further deposit of US2,500.00 on 27 December 2016.  The transactions are few and over a short period.  The Tribunal has concerns that these large deposits were made merely to make it appear that the applicant has savings given it is unclear from where the large funds originated.  Furthermore, from the few transactions listed it is difficult for the Tribunal to ascertain whether the applicant has a steady savings history.  Together with concerns about the applicant’s limited assets in Lebanon, the Tribunal is not satisfied that the applicant would not travel to Australia and breach condition 8101.  This is particularly so as the applicant will not be on paid leave were he to travel to Australia for forty days.  While the Tribunal accepts that the sponsor may cover some of the applicant’s expenses, the Tribunal considers that in the context of the country information concerning Lebanon, forty days is a lengthy period to be away without work.

19. The country information in respect of Northern Lebanon Lebanon also does not convince the Tribunal that the applicant’s life in Tripoli is a secure and prosperous proposition into the future.  The latest advice issued by the Department of Foreign Affairs and Trade Australia, dated 14 July 2017 discusses the country’s socio-economic circumstances as well as the security situation.[1]  The official overall advice for the entire country of Lebanon is that travellers should reconsider their need to travel.  Firstly, the threat of terrorism is ever present and travellers are particularly advised not to travel at all to Tripoli and northern Lebanon, due to the unpredictable security situation caused by the conflict in neighbouring Syria and ongoing political and sectarian tensions.  The Department of Foreign Affairs and Trade states that the ongoing conflict in Syria is destabilising Lebanon with violent incidents occurring, including car bombs, improvised explosive devices (IED) attacks and rocket attacks.  Anti-government protests also continue.[2]

    [1] accessed on 22 August 2017.

    [2] Ibid;

20. Moreover, Lebanese authorities assess that extremists have sought refuge in northern Lebanon, including throughout the Akkar district.  On 10 January 2015, a suicide bomb attack outside a café in Jabal Mohsen, Tripoli, killed at least nine people.[3]

    [3] Ibid.

21. At hearing the Tribunal also raised the issue of Syrian refugees flooding into northern Lebanon placing pressure on infrastructure, jobs and accommodation.  The sponsor stated that things were not as bad anymore as the Syrian refugees were returning home now.  The applicant also stated that he had never been affected by any of the adverse security incidents or situations that were referred to by the Tribunal.  While the Tribunal accepts that some refugees may be returning to their country, Tripoli as a port city continues to be the gateway for refugees trying to reach other countries in search of a better future.[4]

    [4] on 22 August 2017.

22. A recent study dated March 2017, as part of the Refugees in Towns Case Studies Series, Feinstein International Centre, Tufts University, states:

    Lebanon has experienced an influx of 1.5 million Syrians since 2011, representing almost a quarter of its population. The challenges this influx creates have been particularly intense in Tripoli―Lebanon’s second largest city and the urban center of the northern governorate. Tripoli is a coastal city, just 30 km from the Syrian border, and its population has grown by 17% with the influx of Syrian refugees. Tripoli is poorer, more politically fragmented and more insecure than other parts of Lebanon, including Beirut and the refugee influx has had deep repercussions.
    
    

    This case study explores how the Syrian influx has affected Tripoli, with a focus on urban poverty. The case study will explore how relationships between Lebanese and Syrians have deteriorated as competition over jobs intensifies, security concerns increase, and decrepit public infrastructure has been further strained.[5]  OVERVIEW AND

    [5]

23. The Tribunal finds it difficult to accept that even any minor amelioration in the instability in Syria could have any positive impact on the quality of life in Tripoli to the point that it would represent an incentive for the applicant as a single 24 year old unmarried male to return there, particularly when the average salary is only US500.00 and poverty is widespread.[6]  While the applicant’s salary is just above the monthly average wage, this is not comparable to the higher wage he could secure in Australia undertaking similar work.

    [6] Ibid.

24. While the applicant is currently employed the literature demonstrates that work in Tripoli is difficult to find, particularly when Lebanese nationals are competing with Syrian refugees for jobs.  The Tribunal has limited evidence before it that were the applicant to leave his current position in Tripoli, his employer would continue to employ him on return, leaving the Tribunal to have serious concerns that the applicant’s aim may be to gain longer term residence in Australia in breach of the conditions specified above.

    cl.600.211(c)

25. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  While the applicant was at pains to minimise the difficulties that the city of Tripoli is currently undergoing, the reality is that there are other health problems affecting the country as a whole which the Tribunal has taken into consideration.  For example, Lebanon is currently engaged in an ongoing waste disposal dispute and garbage has been piling up on the streets since a number of landfills were closed.  Health concerns include possible water contamination, water-borne illness and increased air pollution caused by the burning of waste.  In an area such as Tripoli, which has experienced an influx of population such concerns are amplified.[7]

    [7] accessed on 22 August 2017.

26. The Tribunal has taken into account the applicant’s personal profile, the circumstances of his home country generally, and his home area specifically, but has difficulty accepting that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  This is particularly so as the evidence submitted to support his claims is limited.

27. For the above reasons, both singular and cumulatively, 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.

    Rosa Gagliardi
    Member

    
    
    

‘Syrian Refugees in Tripoli, Lebanon’, Khaled Ismail, Claire Wilson, and Nathan Cohen-Fournier, The Fletcher School of Law & Diplomacy, Taft University, March 2017,

accessed on 22 August 2017.