Taleb (Migration)

[2019] AATA 5386

Taleb (Migration) [2019] AATA 5386 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Souhaila Taleb

VISA APPLICANT:  Mr Omar Taleb

CASE NUMBER:  1810547

HOME AFFAIRS REFERENCE:               BBC2018/11877220

MEMBER:Rosa Gagliardi

DATE:9 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 September 2019 at 4:30pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting sister – family members’ travel history – incentive to return to home country – economic and personal ties to home country – security and economic situation in Akkar District, 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 Immigration on 27 March 2018 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 12 March 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 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 it was considered that the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 16 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the 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, specifically his sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

9. The applicant is a 25 year old single male living and working in Mechmech in the Akkar region, Lebanon.  The applicant is the review applicant’s/sponsor’s sister.  He is a full-time student undertaking a degree in administration and organisation but works part-time at the Municipal Centre for Education and Culture as a teacher in computing.  According to the sponsor, the applicant needs to study for a further year and then he will attain his Bachelor degree.  He is currently living with his parents and other family members.  The applicant’s father’s work involves taking people on pilgrimages to the Hajj and other places.  His mother is a housewife.  The applicant travelled to Saudi Arabia in 2011. 

10. The applicant has two sisters (including the sponsor) living in Australia and several other siblings in Lebanon.  Two of his siblings are students.  One is a teacher and another is working with their father in the family business.  The sponsor is a student and sometimes she does teaching work also. 

11. The sponsor stated that she loved all her family but she wanted her brother, the applicant, to see her husband – they had not seen each other in nine years.  She wanted the applicant to see her numerous relatives in Australia and for him to take a short break from his studies.  He had uncles and cousins here too.

12. The applicant’s sister travelled to Australia several years ago and his father had travelled here three times.  The sponsor stated that the applicant wishes to stay in Australia for two months or less.  He does not have any savings personally, but he has savings together with his father. 

13. The sponsor stated that the applicant did not have a girlfriend and was not looking to partner just yet as he wanted to finish his studies and obtain a job so that he could have a better future.  He already had an IT Diploma.  The sponsor stated that when the applicant completes his degree in administration and organisation he could continue to work as a teacher on a permanent basis. 

14. In terms of assets, the sponsor stated that her family had land, buildings and houses in Lebanon.  Her parents (and those of the applicant) owned their own home and had two apartments above the home her parents and family lived in.  They grow fruit bearing trees. 

15. It was reiterated that the applicant was not coming to Australia to find a bride, for example, as he loved his studies and he wanted to attain a Bachelor Degree.  It was his priority.  The sponsor stated that the applicant was very attached to his parents particularly his mother, and he would not leave her.  He also would be the one to take care of his parents when they were older.  His sisters could not look after their parents because they were girls and they would marry and go and live with their own families.

16. The Tribunal put to the sponsor the country information regarding Mechmech, Akkar District, relating to the high levels of poverty and the effect of displaced Syrians who were seeking refuge in the area.  The sponsor stated that their family had a good standard of living.  The applicant had a part-time teaching job, would have paid leave and had the capacity to return to his current job on return to Lebanon.  The sponsor added that in any event, Syrians were now returning to their own country as the conditions had stabilised there.   

17. The Tribunal also spoke to the applicant who confirmed he did not have a girlfriend.  He stated that he did not plan to stay in Australia as he was studying and working part-time on Thursday, Friday and Saturday and he was very happy with this job.  The children he taught were making progress.  When the Tribunal put to the applicant the adverse country information, the applicant responded that the Syrians were living together with the Lebanese in prosperity and there was no problem.

18. The applicant stated that in terms of his future plans he would continue to work as a teacher in Lebanon and to live in the flat above his parents’ home. 

19. The applicant stated that he wanted to live in Lebanon.  He was happy there.  He also wanted to look after his parents when they were old.  He wanted to impress on the Tribunal that he really wanted to visit his family in Australia. 

    cl.600.211(a)

20. 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)).

21. The Tribunal has placed some positive weight on the fact that the applicant’s sister travelled to Australia several years ago and that it is claimed she abided by her visa conditions.  It was claimed that the sister was not married at that time and therefore, like the applicant, did not have a partner to return to as an incentive.  Nonetheless, the visa was granted to her. 

22. Further, the applicant’s father has a history of travelling to Australia without incident (on three occasions).

23. The Tribunal considers that these matters are favourable to the applicant, however, without having detailed knowledge of the applicant’s sister’s and father’s circumstances, it is difficult to draw significant positive inferences from other family members’ travel, even though the Tribunal accepts that the family in general has abided by Australia’s immigration rules. 

24. The applicant has also travelled to Saudi Arabia and the Tribunal notes that the applicant did not remain in that country permanently but returned to Lebanon as required.  The Tribunal is inclined to place less weight on this travel, however, given that it is unclear the extent to which he has family members in that country as opposed to Australia where he has several siblings as well as numerous members of his extended family.

    cl.600.211(b)

25. 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)).

    ·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.

26. The applicant as a student is working part-time as a teacher and understandably does not have significant assets in his own name. 

27. Evidence submitted includes:

    ·an account in the name of “Mohamad Taleb and or Omar Taleb”, Mohamad Taleb being the applicant’s father.  A covering letter, dated 7 February 2018, by the applicant’s father states that he would cover all the travel expenses of his son during his visit to Australia.  The account with alBaraka Bank covers 1 January 2018 to
    29 January 2018.  The account has a closing balance of 7,558,000 Lebanese Pounds, equivalent roughly to AUD4976.94;

    ·Probative evidence that the sponsor has a solid amount of funds in an ANZ account;

    ·Attestation by the Municipal Centre for Education and Culture, dated 13 August 2019, confirming that the applicant had been working as a teacher in computing studies in Mechmech-Akkar since 2017, and that the applicant would be paid leave for two months “providing he resumes work when he arrives in Lebanon”;

    ·Attestation that the applicant was due to complete his studies at the Technical Institute of Mechmech-Akkar on 30 June 2019, and had started on 18 September 2018, and that his speciality was “Administration and Organization”.

28. The Tribunal accepts, even with limited evidence, that the applicant’s father owns his own home and has two apartments above the dwelling which could be rented out.  Further, the Tribunal accepts that the applicant’s father takes tours and earns an income.  The Tribunal is also prepared to accept, with limited evidence before it, that the applicant’s family owns land and several vehicles.

29. The sponsor and the applicant wanted to assure the Tribunal that their circumstances were comfortable.  Having had regard to the bank account, however, the Tribunal has some reservations given the limited snapshot which does not permit the Tribunal to gauge a pattern of income and how that income is derived.  Also, it is difficult to extrapolate how much the applicant himself earns per month, for example.  Further, the Tribunal notes that 8,000,000 Lebanese Pounds were deposited into the account on 11 January 2018 (roughly AUD7,683.20) which is not an insignificant amount and does not appear to be consistent with the average wage earned in Lebanon, even on a monthly basis.  For this reason, the Tribunal has concerns that the 8,000,000 Lebanese Pounds was a one off deposit to inflate the account. 

30. Without probative evidence about the applicant’s father’s earnings and those of the sponsor, it is difficult to rely on the bank account statement as a true indicator of the family’s earnings. The Tribunal also queries whether the entire family has access to these proceeds and if so, why it is important that the family expend their life savings on the applicant coming to Australia.

31. The Tribunal notes that the sponsor’s financial circumstances are sound, however, as expressed at hearing, the Tribunal is assessing the genuine intention of the applicant.  While the Tribunal accepts that the applicant is a student and works part-time as a teacher in computing, it has concerns that there is limited evidence to persuade the Tribunal that the applicant’s financial circumstances in Lebanon are so strong as to represent an incentive for  him to return on expiry of his visa. 

32. The Tribunal is also concerned about the applicant’s profile as a single man who would be earning a limited income.  As the applicant does not have any romantic attachment and has not made plans with another person to build a future life in Lebanon after he completes his study, the Tribunal considers that there is a risk that on arriving in Australia he would attempt to change his status onshore.  This is particularly so as the applicant has highly transferable skills in an area where computer language is universal. 

33. Together with the limited evidence, the applicant’s profile and the country information, the Tribunal is led to have serious reservations about the applicant’s intention to visit Australia temporarily. 

34. The location of Meshmesh, Akkar District located close to the Syrian border places further doubt in the Tribunal’s mind about how conducive Meshmesh and Lebanon generally are to the applicant building a prosperous future there.  At hearing the applicant stated that Lebanon is a popular tourist destination and that there were no difficulties there. 

35. The Tribunal has concerns about the unstable security situation in the Akkar region despite the sponsor’s assurances that the situation in Syria had settled.  The Department of Foreign Affairs’ latest 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”.[1] 

    [1] 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.

36. The Tribunal is not convinced that the Akkar district does not suffer from socio-economic factors which have partly arisen due to the civil upheaval in Syria in recent years.  Nor is the Tribunal convinced that the applicant and his family are immune from the difficulties in the area.  The country information does not assist instil in the Tribunal confidence that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  As put to the applicant and sponsor at hearing there were multiple factors that meant that the push for young people to leave the area of Meshmesh, is compelling.

    
    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. [2]

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

1. An article by Oxfam International indicates that the impact of the Syrian crisis is not just confined to the Akkar district but has an impact on the entire country of Lebanon.[3]

   [3] Oxfam International, Nupur Kukrety, Independent Consultant, “Poverty, Inequality and Social Protection in Lebanon”, Accessed on 9 September 2019.  The writer states that, “The massive population influx has put huge pressure on the labor market and employment, while also driving up prices for consumables and the cost of shelter”. 

2. Even if the Tribunal accepts that the applicant and his family have a higher standard of living than most in Akkar (and given the limited evidence it is difficult to be satisfied), the Tribunal is not convinced that opportunities for the applicant into the future would be comparable to those he might have as a young person in Australia who is just starting out in life.  The country information shows that many people face particular challenges in the Akkar district due principally to its location close to the Syrian border as well as the government’s continued neglect of the area. 

   cl.600.211(c)

3. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal has heard that the applicant loves Lebanon and his family there and the Tribunal has no doubt that this is the case.  He has also claimed he loves his studies.  Nonetheless, given the poor prospects for opportunities in the Akkar area, the applicant is unlikely to realise the investment made in his studies without migrating away.  The sponsor stated that the place where he currently works part-time would give him employment at the end of his studies.  Furthermore, it was claimed that the applicant would want to stay with his parents to look after them as his sisters would move away.  Given the country information, however, the Tribunal is not satisfied that the imperative to move to a country like Australia, that would afford the applicant a better future, does not override any sense of obligation to care for his parents, who in any event have another son to care for them, if indeed it is customary for girls not to have any obligation towards their parents on marriage.

4. The Tribunal considers that the applicant’s studies may represent an incentive to return to Lebanon to complete these, nonetheless given he already has a qualification and has already started work in his area of expertise (computing), the Tribunal is not satisfied that this factor alone would prevent the applicant from attempting to change his status onshore, given the benefits he would derive.

   Conclusion

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