El Zein (Migration)

[2021] AATA 408

El Zein (Migration) [2021] AATA 408 (22 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Oussama El Zein

VISA APPLICANT:  Mr Youssef Alzein

CASE NUMBER:  1901613

HOME AFFAIRS REFERENCE:               BCC2018/5486770

MEMBER:Rosa Gagliardi

DATE:22 February 2021

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 22 February 2021 at 1:31pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – past compliance with visa conditions – intention to comply with visa conditions – incentives to return to home country – security of employment – strong positive financial position – economic and political circumstances in Lebanon – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 18 December 2018 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 6 December 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 Tourist 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 who is the applicant’s brother, appeared before the Tribunal on

   
   

   11 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant in Lebanon.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

7. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting his siblings and their and families.  This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

    cl.600.211(a)

11. 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)).

12. The Tribunal accepts that the applicant has travelled to Saudi Arabia and that on that occasion he abided by his conditions, even though he had the opportunity to remain there and work because of the expanding furniture making industry where the applicant could have been employed and well paid.  The Tribunal places some weight in the applicant’s favour on his previous compliance but notes that the applicant would not have had the support of family members in Saudi Arabia, whereas in Australia the applicant has three siblings, providing him with a ready made social and familial support structure.

13. The Tribunal also takes into account that the applicant’s sister visited Australia on a Tourist visa and that she complied with her visa conditions on that occasion (in 2017) when Lebanon was at that time also undergoing economic and political instability.  The applicant’s sister met her future husband in Australia but rather than force a stay in Australia, she complied with the requirements of her visa to lodge a Partner visa offshore.  The Tribunal places positive weight on the applicant’s sister’s compliance with her visa conditions in 2017.

14. The Tribunal also notes that the sponsor had discussed with the applicant the possibility of coming to Australia as an unlawful maritime arrival, but the applicant had refused to entertain the proposition.  He did not want to risk his life and considered he had a good job in Lebanon and his family was there.  The Tribunal is somewhat concerned that the sponsor had aspirations for the applicant to engage in such unlawful activity but accepts that the applicant refused to migrate to Australia under such extreme and dangerous circumstances.

15. The sponsor stated at hearing that he had three other siblings living in Australia – 2 brothers living in Melbourne, and a sister in Sydney.  The applicant and his sister both came to Australia on a Spouse visa and their other brother came on a Carer visa to look after the sponsor’s daughter who has disabilities.  The sponsor claimed that his brother was still the Carer of his daughter. 

16. Overall, the Tribunal notes that the applicant has not travelled widely and certainly not to a country such as Australia.  This matter is by no means determinative of the review and is negatived, to some extent, by the applicant’s sister’s positive migration history.

    cl.600.211(b)

17. 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.

18. The Tribunal accepts that the applicant is working as a supervisor at the Factory and Gallery Hafza for Furniture.  On 19 November 2018 the applicant’s employer provided a letter of support certifying the applicant had been working as a furniture maker since 2015, till the present, earning USD1,000.00 per month.  The letter also states that the applicant had been granted paid leave for the period of a month and attests to the applicant’s good character.

19. At hearing it was explained the applicant had now been promoted to a supervisor and was in fact now earning USD1,200.00.  In this role the applicant was no longer working making furniture himself, but rather supervising others in recognition of his skills and experience.

20. The Tribunal places weight on the applicant’s earnings in Lebanon which in relative terms are not insignificant, although the Tribunal notes that the average gross annual salary in Lebanon is USD37,662 as at 4 January 2021.[1]  Given the country information put to the applicant at hearing and replicated below, the Tribunal accepts that the security of employment in itself in Lebanon, and particularly the Akkar region where the applicant is from, has some value. 

    [1] Lebanon | 2020/21 Average Salary Survey, accessed on 18 February 2021.

21. The Tribunal also accepts that the applicant has savings in his name in an account with bankmed showing that as at 15 November 2018, the applicant held 29,953,600 Lebanese Pounds, the equivalent of AUD25,520.68, although the Tribunal is somewhat concerned that there is a cash deposit of 14,003,600 Lebanese Pounds which is then reversed, leaving the Tribunal to question the purpose of such an account.  Notwithstanding its reservations about this unusual transaction, the Tribunal accepts that the applicant has solid savings behind him.

22. At hearing the migration agent stated that more up to date account savings could not be obtained from the bank because since the economic crisis people had been frozen out of their accounts.  To avoid this occurring to him the applicant had not had his salary go into an account but kept his funds at home in cash.  Further, due to COVID-19, the banks had shut down and it was not clear when they would open. 

23. The migration agent stated that in taking into account the applicant’s savings to date, it should consider the applicant has had a pay rise and hence his salary and savings have increased exponentially.  The Tribunal accepts this is the case and is also prepared to accept that the applicant has additional savings in his account to those he had as at

    
    

    15 November 2018. 

24. The Tribunal also accepts, even in the presence of limited probative evidence, that the applicant owns his own unit and that his father has gifted him the unit his mother and father live in as a reward because the applicant has stayed close to them and cared for them.  The Tribunal also accepts that the applicant owns the land on which the units have been built.  It was claimed that there had been no opposition to the gift by the applicant’s 9 other siblings.

25. At hearing it was claimed that it was common for people abroad to provide support to their families in the Akkar region and that they similarly provided such support to their parents and the applicant.  The Tribunal has sighted the sponsor’s own savings which are considerable and the Tribunal accepts that the sponsor would be in a position to support the applicant’s visit to Australia and that were his family in Lebanon to be in need, he could assist them without difficulty.

26. At hearing the applicant stated that his father had retired some 15 years ago and that his mother had always worked in the home.  While his parents presumably have support from his siblings in Australia, it would appear that the applicant also has some responsibility for their financial well-being.  Nonetheless, this does not detract from the applicant being in a strong positive financial position overall.  Whether his work and his financial position are incentives enough to give rise to a genuine intention to stay temporarily in Australia is, however, another matter.  Any funds held by the applicant can be transferred to Australia, and he could always let his own unit as an extra source of income. 

27. It was also argued at hearing that the applicant had a strong incentive to return to Lebanon because he had family and was the sole carer of his parents in Lebanon.  The applicant has four siblings in Australia and the remaining of the 10 live in the Akkar region.  While the Tribunal accepts that the applicant has a close attachment to his parents, the Tribunal is unable to see why the applicant’s other siblings are not able to take a role in the care of their parents.  It was argued at hearing that the other siblings were married and had their own families, so it was not possible for them to devote themselves in the way that the applicant has done so.  Even so, were the applicant able to forge a new life and future in a country such as Australia, the Tribunal is not satisfied that his attachment to his parents would represent a stumbling block, or that his parents would impede such a life-changing opportunity.  As it was argued at hearing, ex patriots often supported their families financially from their new countries, even though providing emotional and physical care from afar would be difficult, it is granted. 

28. The Tribunal is also not persuaded that the applicant’s future is unquestionably in Lebanon or that his roots are so embedded in Lebanon that he could not change his status onshore and make a fresh start at the age of 27.  The applicant stated at hearing that he did not have an affective bond such as a romantic relationship in Lebanon.  In other words, he has not made a commitment involving another person about a future life together in Lebanon.  The applicant stated at hearing that if he married and had a family, he still wanted to be close to his parents.  Nonetheless, the Tribunal notes that even though the applicant has a good job, the opportunities for having a family in Lebanon in a safe, stable and prosperous environment, where health and education are guaranteed (such as in Australia) are limited. 

29. The applicant comes from Bebnine in the Akkar region, which as put to the applicant at hearing is facing a multiplicity of challenges, in addition to the overall economic crisis faced by Lebanon as a whole. At hearing the migration agent argued that Lebanon has always faced instability, but the Lebanese people were resilient and have adapted to their uncertain circumstances over the years.  The Tribunal agrees that Lebanon has endured various periods of economic and political turmoil and has been a host nation to refugees over the years (stateless Palestinians, for example). 

30. It was argued that the applicant’s sister’s profile as a single woman was no different to that of the applicant and that the circumstances in Lebanon at the time of the applicant’s sister’s travel to Australia in 2017 were also turbulent.  The Tribunal considers, however, that the country information would indicate that, while it is not useful to compare historical crises, the current circumstances of the country mean that there are particularly strong incentives for the applicant to change his status onshore.  This raises serious concerns in the mind of the Tribunal as to whether the applicant does have a genuine intention to stay in Australia temporarily for the purpose for which the visa is granted.

31. Currently, Lebanon is facing what is viewed by commentators as “an unprecedented economic crisis” [2]  and:

    For almost a year, Lebanon has been assailed by compounded crises – specifically, an economic and financial crisis, followed by COVID-19, and lastly the explosion at the Port of Beirut (PoB).

    In October 2019, the economy plunged into a financial crisis brought about by a sudden stop in capital inflows, which precipitated systemic failures across the banking sector and debt sector, as well as effecting the exchange rate.  Subsequently, on March 7, 2020, the Government defaulted on the redemption of a US1.2 Billion Eurobond, marking Lebanon’s first-ever sovereign default.  Then, on March 18, the Government declared a State of General Mobilization, imposing a lockdown to counter COVID-19 that included the closure of he borders (air, sea and land) and of public and private institutions.  Lastly on August 4, 2020, a massive explosion rocked the Port of Beirut, destroying much of the port and severely damaging residential and commercial areas within a 1-to-2-mile radius of it.

    Beyond the human tragedy, the economic impact of the explosion has implications at the national level, despite the explosion’s geographical concentration.  This adds to long-term structural vulnerabilities that include low-grade infrastructure-a dysfunctional electricity sector, water supply shortages, inadequate solid waste and wastewater management, public financial mismanagement, large macroeconomic imbalances, and deteriorating social indicators.[3]

    [2] BBC News, ‘Lebanon: Why the country is in crisis’, 5 August 2020, accessed on 19 February 2021.

    [3] The World Bank in Lebanon, 1 October 2020, accessed on 22 February 2021.

32. And further:

    The blast came at a difficult time for Lebanon, which is not only trying to curb the spread of the coronavirus but is also mired in an unprecedented economic crisis. 

    The economic situation has pushed tens of thousands (of) people into poverty and triggered large anti-government protests.
    …..
    Discontent in Lebanon has been brewing for years. In late 2019, a plan to tax Whatsapp calls spilled over into mass protests against economic turmoil and corruption, which eventually led to the then government’s resignation.

    Coronavirus had curbed the protests, but the financial situation continued to worsen and last week’s deadly explosion was seen by many as the deadly result of years of corruption and mismanagement.

    People have taken to the streets again, and there have been clashes between protesters and police…
    ….
    
    

    [4] BBC News, ‘Lebanon: Why the country is in crisis’, 5 August 2020, accessed on 19 February 2021.

    At the same time, people were getting increasingly angry and frustrated about the government’s failure to provide even basic services.  They were having to deal with daily power cuts, a lack of safe drinking water, limited public healthcare, and some of the world’s worst internet connections.[4]

33. Human Rights Watch in its 2021 report on Lebanon commented that the Lebanese Pound had lost 80 percent of its value since October 2019, eroding people’s ability to access basic goods, including food, shelter and healthcare.[5]

    The economic crisis and the Covid-19 pandemic severely affected the medical sector, endangering the ability of hospitals to provide life-saving care.  Electricity blackouts became widespread, lasting up to 22 hours per day in the summer.
    ….

    In November 2019, months before the threat of Covid-19 became apparent, the World Bank predicted that the portion of Lebanon’s population below the poverty line would rise from 30 to 50 percent in 2020.  Some Lebanese economists estimate that this figure has drastically increased.[6]

    [5] Human Rights Watch, World Report 2021, ‘Lebanon Events of 2020’, World Report 2021: Lebanon | Human Rights Watch (hrw.org), accessed on 22 February 2021.

    [6] Ibid.

34. To add to this tragic set of circumstances:

    There are approximately 1.5 million Syrian refugees in Lebanon, of whom about 78 percent lack legal status, an increase from the previous year.  The situation of migrant domestic workers, who are subject to the restrictive kafala (sponsorship) system and are excluded from labor law protections, has worsened amid the economic crisis and Covid-19 pandemic.[7]

    [7] The World Bank in Lebanon, 1 October 2020, accessed on 22 February 2021.

35. The massive influx of Syrian refugees raises many social issues, in addition to macroeconomic and political challenges and:

    has shaken the countries demographic balance, labour market, and is putting pressure on the costs of rent, infrastructure and supply of public services (water and electricity) …Unemployment has skyrocketed following the inflow of Syrian refugees, which are competing with Lebanese workers in the informal sector and could hit over a quarter of the workforce…On top of all of this, the severe economic crisis of 2019 and a global pandemic have caused a staggering level of unemployment….[8]

    [8]

36. At hearing it was argued that the applicant lives in a rural area and that the issues above only affected those in the cities.  Moreover, many of the refugees live in camps so there is little impact in terms of their need for food, shelter and clothing on the community in general.  It was also argued that the applicant is employed and that these issues were not relevant to him.  While the Tribunal accepts that the applicant is supporting his parents and is employed, this employment under the conditions described by reputable sources, does not seem guaranteed.  Simply put, if people do not have money and have been plunged into poverty due to COVID-19, a lack of funds and food shortages, it is not likely that they will have discretionary funds for the purchase of furniture and other items that might not be viewed as necessities.  In addition, the country information raises serious questions about the future of the applicant in Lebanon.

1. The situation is made more complex by the applicant’s residence in Bebnine, in the Akkar region.  The country information shows that even prior to the COVID-19 pandemic and the severe economic crisis challenging Lebanon as a whole, the Akkar region has been considered one of the most depressed areas of the country.  While now outdated as it was written in 2014, a historical context for the economic situation of Akkar is helpful in highlighting its vulnerability, particularly given the current crises facing the country as a whole:

   The humanitarian needs in Lebanon today are undoubtedly huge, for both Syrian refugees and the Lebanese host communities. With the increasing influx of Syrian refugees, particularly from August 2011 onwards, Akkar’s community, which is known to be one of the poorest communities in Lebanon, has largely felt the pinch. Akkar’s families, of which the average size is 4.7 individuals (higher than the national average), constitute 20.5% of the entire Lebanese population. They maintain a traditional sociocultural structure, which engendered a Lebanese – and not only foreign – stereotype that the region is “primitive.” For example, Akkar has the highest poverty rate in the country, amounting to 63.3% of its population. The region has been historically neglected and registers the worst household conditions in Lebanon after Hermel. The majority of Akkar’s villages receive electricity from Electricité du Liban, but not all houses are connected to the electricity grid. In addition, the region ranks last in residential accessibility to the public water supply, despite its natural water resources; running water is taken from artesian wells or private water networks. There are many solid waste burning sites and dumps in the public environment, given that, in some towns, there is no garbage collection system provided by the municipality or private contractors. Public transportation is lacking and car ownership is very low. This renders schools, hospitals, and basic services difficult to access. Local inhabitants, hence, say that political candidates buy votes by promising new roads, which are rarely maintained.[9]

   [9] Estella Carpi, The Civil Society Knowledge Centre, ‘The Everyday Experience of Humanitarianism in Akkar Villages, 24 March 2014, PDF Generator (civilsociety-centre.org), accessed on 22 February 2021.

2. Because Akkar borders with Syria the influx of refugees into the area has presented significant challenges:

   Northern Lebanon is one of the country’s most deprived regions, with severe poverty levels, high numbers of refugees and some of the worst unemployment rates in the country. 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.

   The area was split into two governorates in 2014: Akkar and the North. Tripoli, the capital of the North governorate, is the second largest city in the country, while the rest of the region is primarily agricultural. Akkar Governorate shares a 100km border with Syria and has two official crossing points: El Aarida and El Aboudiyeh, which was recently refurbished by IOM. The two governorates are composed of diverse religious groups, with Sunni as well as Alawite, Christian and Shiite communities. [10]

   cl.600.211(c)

   [10] UNHCR, ‘Lebanon, North and Akkar Governorates Profile’, 2016,

3. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  At hearing the migration agent argued that the applicant would not apply for protection in Australia on the basis of general civil unrest as such an application would undoubtedly fail.  It is not for the Tribunal to speculate about the visa class the applicant might apply for in changing his status in Australia.  Nonetheless, there are several other visa classes the applicant might apply for, and given the consistent nature of the country information, together with the applicant’s circumstances, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted. 

4. While the Tribunal can accept that the applicant might be shielded to some extent from the significant challenges facing Lebanon and Akkar, at the moment, it is difficult to accept that the applicant is totally immune from the difficulties presented by an economy in deep decline and the concomitant social issues. 

5. 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

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

   Rosa Gagliardi
   Member

   
   
   

The economic context of Lebanon – Economic and Political Overview – Nordea Trade Portal, accessed on
22 February 2021.

Lebanon North and Akkar Governorates Profile - data.unhcr.org,

accessed on 22 February 2021.