Kamereddine (Migration)

[2017] AATA 2312

Kamereddine (Migration) [2017] AATA 2312 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khaled Kamereddine

VISA APPLICANT:  Mr Khodor Kamar El Din

CASE NUMBER:  1705836

DIBP REFERENCE:  BCC2017/653331

MEMBER:Rosa Gagliardi

DATE:8 November 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 08 November 2017 at 4:23pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Country information of Mechmech – Applicant’s ties in Lebanon – Family’s economic future

LEGISLATION

Migration Act 1958, s 231

Migration Regulations 1994, cl 600.211, cl 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 9 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 15 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 or she was not satisfied that the applicant genuinely intends to stay in Australia for the purposes for which the visa is granted.

5. The review applicant appeared before the Tribunal on 11 May 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 family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

   ·The applicant is a 37 year old male national of Lebanon, who resides in Mechmech, Akkar, North Lebanon with his wife and three children, aged 15, 12 and 7;

   ·The applicant has several brothers living in Australia with their families;

   ·Some siblings are working in Qatar in the building industry;

   ·He works as a foreman in the National Company for Metals S.A.R.L, overseeing production of iron and managing workers.  The letter he has provided from his employer dated 5 November 2016, indicates that he earns 957 USD (the equivalent of roughly AUD1250.00);

   ·He has been working for National Company for Metals since 1 October 2012, according to the letter by his employer;

   ·The applicant’s wife is not working;

   ·The Mayor of Mechmech, Akkar has provided a letter dated 7 November 2016, attesting to the applicant owning a house and having several productive land holdings.  The applicant has also stated that he owns a house in Beirut which he rents out.  The sponsor, his brother, advised that the applicant also had other assets;

   ·The sponsor is a business owner and has provided funds of having savings which would assist the applicant with any significant costs;

   ·The sponsor has also provided a statutory declaration dated 15 January 2017, advising that he wanted his brother to visit Australia for a period of up to three months to visit his brothers and families, to commemorate the Holy month of Ramadan, to celebrate the significant annual festivity ‘Eid’, and to tour briefly around Melbourne before he returns to his wife, children and large family abroad;

   ·The sponsor has previously sponsored several siblings and his mother to Australia and they all departed Australia without incident on the expiry of their Tourist visas; and

   ·The applicant has stated in his application that he had applied to come to Australia previously but his applications were refused because of the then security situation in Lebanon.  He also wrote, sentiments he echoed at hearing, that government reports about the security situation in Lebanon are always exaggerated in order to protect the would-be visitors to his country.  Further, he wrote, there are many refugees who flee Syria and sought temporary shelter and they are looked after by many people in Lebanon.  There is much work for those who want to work and the building industry is booming.  Furthermore, the nightlife in the main cities was alive and full of fun for all tourists and locals.  The applicant was disappointed when the visa was refused due to the claimed security situation as wanting to visit brothers and their families should be viewed as a legitimate aspiration.

   cl.600.211(a)

9. 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)).

10. The applicant has not previously travelled to Australia so it is difficult to attribute weight to his travel record.  The Tribunal does note that some of the applicant’s siblings and his mother had travelled to Australia and abided by the conditions of their Tourist visas and the Tribunal does place some positive weight on their compliance.  Nonetheless, the Tribunal notes that the visits had occurred in early 2003/2006 and 2006/2009/2010. For the reasons provided below, the Tribunal considers that the circumstances in Lebanon, particularly Mechmech, Akkar, have changed and that this is a matter that the Tribunal has to take into account in assessing whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    cl.600.211(b)

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.600.612):

    ·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.

12. The Tribunal at hearing expressed a view that for the applicant to leave behind his wife and three children for three months when he was the family’s breadwinner, was a lengthy period and disproportionate to his circumstances.  The sponsor stated that this leave would be fully paid.  When the Tribunal spoke to the applicant he stated that he was not sure that he would be able to stay for the entire three months given he had so many responsibilities in Lebanon, in terms of his family, including looking after his elderly mother, and was required to manage his assets, being the property in Beirut and the agricultural land holdings. 

13. When the Tribunal asked the applicant whether there was evidence that in fact his employer would be prepared to pay him during his leave, the applicant stated that he had not actually applied for leave yet and that he was waiting for his visa to be granted. He was certain the leave would be paid.  The Tribunal places minimum weight on this matter in the applicant’s favour however, given there is limited evidence before the Tribunal to indicate a willingness on the part of the applicant’s employer to pay the applicant during his absence from work.  This leaves the Tribunal with concerns that the applicant may wish to supplement the earnings from his property in Beirut and his land holdings during his stay in Australia to undertake unskilled work.  The Tribunal notes that the applicant’s employer has provided a letter to state that the applicant will be granted leave, but is silent on the matter of whether or not the leave would be paid.

14. The Tribunal’s concerns are enhanced as the applicant has not been working with the National Company for Metals for a significant period to have earned three months’ paid salary as he only started with the company in 2012. 

15. The Tribunal has taken into account that the applicant’s earnings in terms of his salary with the National Company for Metals are relatively good and that the family is not impoverished.  Nonetheless, earnings in some unskilled positions in Australia could well exceed AUD1250.00.  The Tribunal is not discounting that the applicant is able to supplement his salary from the National Company for Metals with seasonal earnings from his fruit trees and other assets, but even so the applicant does have a dependent spouse and three dependent children, one of whom is only 7 years of age and who will not be independent for some time to come. 

16. The Tribunal has also given consideration to the applicant’s bank details submitted with a balance of 1,679,797 Lebanese Pounds for a period of 1 May 2016 to 11 November 2016.  This is the equivalent roughly of AUD1451.00.  The Tribunal notes that the applicant’s salary appears to have been deposited into this account but notes that the account holds an anomaly of a large cash deposit of 7,000,000 Lebanese Pounds on one day; only for that same amount to be taken out again after some nine days.  Following soon after that, another cash deposit of 1,000,000 by way of a one off is made, leaving the Tribunal to query whether these large cash deposits are regular payments into the account and have not been deposited in this way for the purposes of enhancing the applicant’s claim to being financially well off.

17. The Tribunal is prepared to accept that, the large cash deposit anomalies aside, the applicant is relatively economically comfortable and has assets.  However, that the applicant is the only person working in his family, and given the country information about Mechmech specifically, these circumstances detract from the applicant’s economic conditions and the Tribunal being able to be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

18. Country information shows that Mechmech in Akkar has become somewhat of a flashpoint because it is attracting many Syrian refugees.  While the Tribunal accepts the applicant’s testimony that the Lebanese people treat Syrian refugees as their brothers, the country information highlights some of the difficulties this influx of refugees in the area has had. 

19. The country information (which was provided at hearing) indicates that the Akkar region has been referred to as one of the most deprived regions in Lebanon, with the highest overall poverty rates in the country. According to one report, “Akkar shows all the typical features of a poor and relatively isolated rural community, with bad infrastructure and low quality education and health services”. [1]

    [1] Aicha Mouchref, Forgotten Akkar Socio-Economic Reality of the Akkar Region, January 2008, accessed on 10 July 2017. 

20. The Tribunal acknowledges this information is dated now but more recent country information confirms that the Akkar community continues to experience particular socio economic hardships:

    …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 Electricite 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…[2]

    [2] Estella Capri, The Everday Experience of Humanitarianism in Akkar Villages, Civil Society Knowledge Center, Lebanon Support, March 2014, accessed on 10 July 2017.

21. Country information also shows that the overwhelming majority of Lebanese surveyed viewed the refugees as an economic threat, taking the few jobs available, while 82%, “see Syrian refugees as existential threats – meaning that the mere fact they exist in the area is perceived as being dangerous”.[3]  There have also been concerns that tension and animosity between Lebanese nationals and Syrian refugee communities “could slide into large scale violence” as scarce resources and infrastructure have come under pressure.[4]   It would appear that the Lebanese authorities have been opposed to building official refugee camps equipped with proper sanitisation systems as a disincentive for the refugees to remain, and the urgent need for basic shelter has pushed many Syrian families to live in poor conditions, frequently in spaces that are not suitable.

    [3] Belen Fernandez, Syrian refugees as Lebanon’s latest scapegoat, 28 May 2014, accessed on 10 July 2017.

    [4] Ibid.

22. At hearing these matters were dismissed and the applicant stated that his family was not affected by these events.  The Tribunal is not persuaded, however, that while the applicant is currently employed and has access to funds, that the future of the Akkar region for the short to medium term in terms of the generation coming after the applicant, is positive.  Given the applicant has a young family, including a 7 year old child, any investment the applicant might make to leave Akkar permanently could provide his family with a vastly improved lifestyle in Australia in the long-term in terms of the family’s education, health services and quality of life generally.

23. Furthermore, the country information points to security in some parts of Lebanon, including the Akkar region, being problematic due to militant activity, including in the northern region.  The Australian Government, Department of Foreign Affairs and Trade, through its website, smartraveller, has also provided its most recent advice regarding the safety of travel to Lebanon on 25 May 2017, stating in terms of travel to Lebanon generally, “Reconsider your need to travel”.  This is due generally to the unpredictable and sectarian tensions, and the ability of the situation to deteriorate without warning.[5]

    [5] accessed on 10 July 2017. 

24. The Australian Government website also advises, “Do not travel”, to Tripoli and northern Lebanon as Lebanese authorities have assessed that extremists have sought refuge in northern Lebanon, including throughout the Akkar district. [6]

    [6] Ibid.

25. Even if the Tribunal were to accept that the applicant’s family had not personally been affected by the war in Syria and the socio-economic conditions in the Akkar region, the Tribunal is not satisfied that the conditions in Akkar measure in anyway favourably to those in Australia, particularly as there seems to be no resolution to the conflict in Syria and the future outlook for the applicant’s children in northern Lebanon generally is far from secure. 

    cl.600.211(c)

26. The Tribunal has also considered all other relevant matters (cl.600.211(c)).   The Tribunal has taken into account that the sponsor stated at hearing that the applicant had to look after their mother and therefore the applicant would return to Lebanon to fulfil his parental obligations.  As the Tribunal noted, however, the applicant had several other siblings in the area who could just as easily take on a carer role. 

27. The Tribunal also acknowledges that the applicant would be leaving behind his spouse and three children and that they would represent a strong incentive to return to Lebanon.  Nonetheless, if the applicant is attempting to maintain an ongoing presence in Australia, or may be attempting to change his status onshore, any separation for a period would mean that the family’s economic future would be secured and any interim separation would be something they would be prepared to endure.

28. The Tribunal is not satisfied overall, therefore, that the strength of the applicant’s affective ties in Lebanon provide an incentive for the applicant to abide by the conditions as set out above.

29. For the above reasons, individually 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

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

    Rosa Gagliardi
    Member