Jaafar (Migration)

[2019] AATA 1916

Jaafar (Migration) [2019] AATA 1916 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nazem Jaafar

VISA APPLICANT:  Mr Abdul Kader Jaafar

CASE NUMBER:  1728517

HOME AFFAIRS REFERENCE(S):           BCC2017/4201548

MEMBER:Paul Windsor

DATE:29 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 29 March 2019 at 7:43am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuinely intends to stay temporarily in Australia – visa to visit children – incentives to return home – strong family ties – assets – safe home village – decision under review remitted
 
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, conditions 8101, 8201

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 November 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, Mr Abdul Kadel Jaafar, applied for the visa on 10 November 2017. 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 (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 the delegate considered he had not demonstrated sufficient personal, financial or employment circumstances which may act as incentives to return home and comply with the conditions of a Visitor visa for Australia and therefore concluded that the visa applicant’s expressed intention to visit Australia is not genuine.  In reaching this conclusion the delegate noted that two of the visa applicant’s sons had come to Australia in 2012 on temporary visas and subsequently lodged applications for permanent change of status.  He also considered that the political and security situation in Lebanon may act as an incentive for the visa applicant to remain in Australia, commenting that Departmental information indicates that it is not uncommon for Lebanese nationals to overstay their visa or change their status after arrival in Australia.

5. The review applicant, Mr Nazem Jaafar, who is Mr Abdul Kadel Jaafar’s son, appeared before the Tribunal on 28 March 2019 to give evidence and present arguments in a joint hearing with case 1729209 (involving Mrs Souhayla Barakat, the wife of Mr Abdul Kadel Jaafar and mother of Mr Nazem Jaafar). The Tribunal also received oral evidence from      Mr Abdul Kadel Jaafar, and Ms Fatoum Zaina Al-Haouli, who is the wife of the review applicant’s brother, Mr Fawaz Jaafar.  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 his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 three sons and their families in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).  As Mr Abdul Kadel Jaafar has not previously held an Australia visa, this criterion is not relevant in his case.

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)):

    ·8101 – must not work in Australia

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

12. Having considered all the available evidence, the Tribunal is satisfied that there is nothing to indicate or suggest that Mr Abdul Kadel Jaafar, who is 56 years old and has retired after 23 years’ service in the Lebanese army and now receives a service pension, will work or undertake study or training in Australia in breach of conditions 8101 or 8201.

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  While the Tribunal has considered the delegate’s comments that Departmental records indicate that two of Mr Jaafar’s son’s lodged applications to change their status in June 2013 after arriving in Australia on temporary visas in 2012, the Tribunal is satisfied that Mr Jaafar’s circumstances are quite different.  In this regard the Tribunal is satisfied from the evidence that MrJaafar has strong ties to his home area of Beit Younes in the Akkar region of Lebanon and a strong incentive to return to Lebanon after visiting his sons in Australia.      Mr Jaafar has six children and eight grandchildren living in Lebanon.  His two youngest children, a son aged 15 years and a daughter aged 20 years are still living at home and are dependent on Mr Jaafar.  His youngest son is still at school.  Mr Jaafar also has a married son who lives upstairs from him in the same building and his other children, who are all married, live nearby.  Mr Jaafar indicated at the hearing that he has a brother and two sisters and his wife has five brothers and six sisters who live in the village or neighbouring villages.  He commented that their home village of Beit Younes is a small tight-knit community where the residents all know each other and many are related.  Mr Jaafar indicated that he owns his home and receives a service pension of approximately USD1,100 a month, and also derives an annual income of approximately USD20,000 from agricultural land he owns on which he grows almonds, apples, olives, walnuts and cherries as well as vegetables.

14. Ms Jaafar indicated that if the visa was granted he and his wife now wished to travel to Australia in November 2019, for two to three months.  He indicated that this time was suitable because he and his wife were planning to undertake the Haj in August and then his youngest son has school examinations so this is a good time.  He commented that November is winter in Lebanon so he can’t work in the orchards but he will need to be back in three months to look after the olive and fruit trees.  He added that it will be summer in Australia and his family members in Australia will have holidays around Christmas and the New Year period when they can spend time with him and his wife.  He commented that this is a good opportunity for him and his wife to see their family members in Australia all together as they can’t all come to Lebanon.

15. In light of the delegate’s concerns regarding the possibility of the political and security situation in Lebanon acting as an incentive for the visa applicant to remain in Australia beyond the validity of his visa the Tribunal queried the review and visa applicants about the economic and security situation in the region of Lebanon where the family lives.  The visa applicant commented that there had been no problems in the area around Beit Younes and no impact due to the conflict in Syria.  He said there were no Syrian refugees living in the village. 

16. The review applicant indicated that he had been back to Beit Younes twice recently, in 2016 and 2017 and commented that it is a small village which has not been affected at all by the Syrian conflict.

17. The Tribunal also had regard to the following information, discussed with the review applicant at the hearing, drawn from the most recent DFAT Country Information Report on Lebanon:[1]

    [1] DFAT Country Information Report, Lebanon, 19 March 2019, sections 2.8-2.13 and 2.43-2.49.

    • Lebanon is host to large numbers of refugees. Up to 1.5 million Syrians have taken refuge in Lebanon since the Syrian civil war commenced in March 2011. The government suspended the registration of Syrian refugees by the Office of the United Nations High Commissioner for Refugees (UNHCR) in 2015, so the true number is unknown.
    • The Syrian civil war has had a major impact on the Lebanese economy. The conflict cut off one of Lebanon’s major markets and a transport corridor to the Gulf, while the influx of Syrian refugees has heightened competition for low-skilled jobs and public services.
    • Lebanon continues to face several long-term structural weaknesses that predate the Syrian crisis, including political dysfunction, weak infrastructure and poor service delivery. Chronic fiscal deficits have increased Lebanon’s debt to GDP ratio, which is the third highest in the world. These factors combined to slow economic growth to the one to two per cent range between 2011 and 2017, after four years of averaging 8 per cent growth. Weak economic growth limits tax revenues, while the largest government expenditures remain debt servicing, public sector salaries, and transfers to the electricity sector.
    • GDP per capita was last recorded at USD7191 in 2017.
    • Wealth and income are, however, not evenly distributed: Lebanon has some of the highest levels of wealth and income inequality in the world. The World Bank estimates that some 200,000 additional Lebanese have been pushed into poverty as a result of the Syrian crisis, adding to the previous one million poor (defined as living below USD3.84 per capita per day).
    • Densely populated cities have limited housing stock, and the price of shelter and food has risen considerably. Social protection, government support, and access to employment is far more limited in mountainous rural areas than the coastal belt, and poverty is particularly acute in the north of the country and in the Beka’a Valley.
    • Unemployment is a major problem in Lebanon, particularly for the young.  In August 2017, the labour minister estimated that the overall unemployment rate was 25 per cent, with unemployment among those under 25 years of age at 37 per cent. The influx of Syrian refugees has led to increased competition for low-skilled jobs, particularly in the informal sector and in areas of high refugee concentration such as the north of the country and the Beka’a Valley.
    • DFAT assesses that limited economic opportunity, exacerbated by the influx of displaced Syrians, is a push factor for external migration.
    • Lebanon faces a range of security challenges. These include external threats related both to the conflict in neighbouring Syria and to tensions between Hezbollah and Israel; threats of terrorist attack from internal and external actors; politically-motivated violence due to civil unrest; and occasional incidents of communal violence. The government maintains security checkpoints, primarily in military and other restricted areas.
    • The conflict in Syria has increased tensions between communities in a number of areas. An unclear number of Lebanese supporters and opponents of the Syrian government have travelled to Syria to fight in the civil war.
    • Clashes have occurred between Lebanese security forces and Islamic State militants in the north-eastern Beka’a valley region (including the Hermel-Baalbek region and the towns of Arsal, el Qaa and Ras Baalbek). DFAT understands that security operations conducted against Islamic State have succeeded in reducing the threat the organisation poses, although ‘lone wolf’ attacks cannot be ruled out.

18. While the Tribunal considers that the matters raised in the country information cited above might be cause for some Lebanese nationals to seek external migration (particularly young unemployed or those in areas experiencing active conflict), the Tribunal finds that economic and security conditions are not ‘push factors’ factors for Mr Jaafar and his wife given he is retired, receives a service pension, owns his own home and has an additional significant source of income from his agricultural land, is not in a conflict affected area or an area that is supporting a refugee population and has very strong family ties to his home area in Lebanon.   

19. For the above reasons the Tribunal is 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 met.

    DECISION

20. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Paul Windsor
    Member