Zheim (Migration)

[2019] AATA 6771

Zheim (Migration) [2019] AATA 6771 (6 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rola Zheim

VISA APPLICANT:  Mr Ali Zheim

CASE NUMBER:  1814449

HOME AFFAIRS REFERENCE:               BCC2018/1399178

MEMBER:Rosa Gagliardi

DATE:6 January 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 06 January 2020 at 4:26pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – sectarian strife and instability in Lebanon – visa applicant’s employment commitments and history – limited international travel – evidence of financial capacity – Lebanon’s dire economic situation – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 29 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 26 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 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 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 14 November 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. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   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 sister (the sponsor) and her family.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   Background

10. The applicant is the sponsor’s brother and is a 43 year old Lebanese national, resident of Beirut.  He has twin children turning 11 years of age.  His wife is a teacher.  When the Tribunal asked the sponsor who would assist look after his children in his absence, she responded that the applicant’s wife worked at the school attended by their children.  So she would take them to and from school.  The applicant’s spouse also has family in the same building and they would support her. 

11. The Tribunal asked the sponsor why her brother wanted to travel to Australia given his family responsibilities.  She responded that she had come to Australia a year and 8 months ago and she had returned to Lebanon but they were a close family and they had a strong bond. Her brother had been very supportive of her financially and emotionally.  She had told him how beautiful Australia was and she encouraged him to visit the country and to learn more about it.  The sponsor wanted to make it up to her brother for having been so supportive.  She told her children she was not going to work but was attending the hearing because she was appealing the refusal and they were excited.  Her son was really close to the applicant and her children would be disappointed if he did not come.  It would mean a lot to the children if they had someone from the family visit. 

12. The sponsor stated that she came to Australia on a skilled visa.  The Tribunal noted that the applicant worked in a sales manager position since 2014 but asked what he did prior to then.  She stated that he had definitely been doing the same job but with another company.  Asked how many years the applicant had been with the previous company, the sponsor stated that he started working when he was around 20 years of age.

13. The sponsor claimed that the applicant owns the home he lives in with his wife and children. 

14. The sponsor has two brothers and a sister all living in Lebanon and they all live in close proximity.

15. Neither the sponsor nor her husband had any other family members living in Australia. 

16. The sponsor stated that the applicant had gone to Turkey around 11 months previously with his eldest brother. 

17. The Tribunal noted that the applicant had two young children and it seemed incongruous that coming to Australia would be a priority for him.  The sponsor responded that she also belonged to the applicant’s family and she had a right to see him.  Further, her husband was currently in Malaysia on a holiday and she was on her own here. 

18. The Tribunal noted that the Lebanese people generally had been used to sectarian strife and instability.  But the Tribunal referred the sponsor to current information demonstrating that there had been further disturbing developments in Beirut, particularly where Human Rights Watch had referred to the riot police firing tear gas and rubber bullets into a crowd, including children.  The anti-government demonstrations were prompted largely by the government’s new taxes and protesters across the country were angry at the political establishment because of the country’s situation, involving corruption and economic mismanagement.  It appeared that for a period the banks had also closed and the ongoing protests were having an impact on the economy.  The Tribunal noted that the country was suffering from a general malaise and that perhaps her brother was coming to Australia to be able to raise his family in a more tranquil and stable environment.

19. The sponsor responded that her brother had grown up in the same environment his entire life.  He had raised his family in the same place and sentimentally this meant a lot to him.  Secondly, the English language was a barrier and it would be a little hard to learn the language.  It would be very hard at the age of 43 to start from scratch.   He had his customers and clientele and his business was settled and to restart would be too difficult. 

20. It was true that many from Lebanon had fled the country but others see it as the mother land and would never desert Lebanon - her brother was one of those who would not leave the country. 

21. Asked about other assets apart from his home, the sponsor stated that the applicant had land. 

22. The sponsor stated that she had always conducted herself lawfully in Australia and she had the right to have her brother visit her. 

23. The Tribunal also spoke to the applicant.  He confirmed that his wife was a teacher and that his children attended the same school.  He also confirmed that they had a good deal of family support as they lived in the same building and close by.

24. The applicant stated that he did not own the company he worked for but he worked very hard to improve it.  He was the sales manager.  He was an employee of a company that sold spare parts and provided mechanical services.  The Tribunal asked the applicant what his role as a sales manager entailed precisely.  He stated that it involved taking care of spare parts.  He studied mechanics and started his working life as a mechanic.  He acquired a lot of experience and the company started to import a lot of parts and he was moved to that section.  He prepared the orders and sorted parts. 

25. The Tribunal asked why the applicant intended to spend his family’s resources to visit Australia.  The applicant stated that actually he had had no intention to travel at all –the sponsor encouraged him to travel to Australia to see her children.  His accommodation would be provided by her, along with other expenses.  He stated that the maximum he wanted to stay in Australia was two to three weeks. 

26. The Tribunal put to the applicant that the Lebanese people had been living with instability for a while but that the security situation had settled in Beirut.   The Tribunal’s research showed, however, that the economically and politically things did not appear to be so stable.  There were large demonstrations in Beirut.  The applicant stated that there wide exaggerations about the current situation in Lebanon.  When he applied for the visa, the situation was really stable and there were no problems there.  There was no instability in northern Lebanon and the area he lived in was away from any conflict.  He was used to the situation in Lebanon and there was no war in his area.

27. Asked what he did before 2014 work-wise, the applicant replied that he had been working with the same company but it had no licence to operate prior to 2014 because there was chaos in Lebanon.  It was in 2014 that the company was able to get a license to operate. 

28. The applicant stated that he would not leave his mother country.  He had been doing his job for so long. He had mastered his job and was satisfied with his pay.  He also had his children to return to and it was out of the question that he would start again without any language skills.  His cultural background was important to him and he did not want his children to adopt a new culture or way of life. 

29. The Tribunal noted the inconsistency regarding the applicant’s work history.  The sponsor stated that she knew the applicant had worked as a mechanic but in terms of where he had worked prior to 2014, she considered it was a personal matter and she was not aware of the details.  The Tribunal noted that it would place no adverse weight on the inconsistency in terms of the Tribunal’s decision. 

30. The migration agent put forward several oral submissions.  She noted that it was important to take into account that the applicant did not protest and was not involved in politics at all.  He was therefore unaffected by the events that had unfolded in Beirut recently.  Furthermore, the banks had reopened and the applicant had access to funds, even though the sponsor would cover his expenses and he would have no need to spend significant amounts of money. 

31. The migration agent acknowledged the adverse security information, stating that in Beirut the majority of persons were Shia Muslims, and Hezbollah was not inimical to them.  Crime levels were low and the applicant was not affected by the unrest or he could have sought protection in other countries.  She reinforced that a survey of the decisions in respect of protection cases made by Lebanese nationals in Australia would show that the applicant would not be granted a protection visa on the basis of generalised violence. 

32. The Migration agent also highlighted that the Tribunal was required to focus on the applicant’s personal circumstances and not make a decision on the sectarian violence occurring in the country.

33. In support of his contention that he genuinely intended to stay in Australia temporarily for the purpose for which the visa was granted, the applicant has submitted the following:

    ·Ministry of Justice documentation showing that the applicant and his spouse had inherited real estate.

    ·Registration of land held by the applicant.

    ·Evidence that the sponsor came to Australia as a secondary applicant – subclass 189.

    ·Letter from the sponsor dated 26 March 2018, declaring, among other things, that the applicant was married and had two children who attended a private school, and that his wife also had secure employment as a teacher.  She also emphasises that her family is law abiding and they would not jeopardise the family’s reputation.

    ·Evidence of the registration for the company IDRISS Trading for which the applicant works.

    ·Extract of family register for the applicant.

    ·Letter from IDRISS Trading dated 9 March 2018, certifying that the applicant has been working “at our institution as a SALES MANAGER since 2014 till the present” and that he earns USD1,500 per month.  The letter from the owner of the company states that the applicant is granted 45 days paid leave after which he is required to resume his work.

    ·Account statement demonstrating the applicant as at 3 March 2018 had a balance of 19,596.94 US Dollars.

    ·Updated Account statement demonstrating that as at 31 October 2019, the applicant held USD18,534.00.

    ·Evidence of funds held by the sponsor.

    ·Evidence that the sponsor is a Full Time teacher at Unity Grammar, earning AUD78,014.00 per annum.

    ·Rental agreement for the sponsor and her husband.

    ·Photographic material of the applicant and his family in Lebanon.

    ·Evidence of the school attended by the applicant’s children.

    ·Evidence of the applicant’s spouse teaching at the same school as their children and having done so since October 1996.

    ·Evidence of the applicant’s wife employment and salary, being 1,420,000 Lebanese Pounds per month, being equivalent to roughly AUD 1,357.50.

    ·Substantial legal submission by the migration agent dated 11 November 2019, emphasising, among other things, that the applicant would be leaving behind his wife and children and “countless family and friends”.  It is also emphasised that the applicant has strong financial and family ties to his home country.  Further, it is argued that “As the Applicant has no adverse immigration and travel history, namely whereby he has failed to comply with conditions imposed on his visa or has failed to abide by the rules and or regulations of a country, no adverse finding should be made against the Applicant”.  It is also submitted that the applicant would comply with the conditions because she is instructed that he would never jeopardise his chance of re-entering Australia on more than one occasion.  The submission also focuses on the fact the applicant is employed, is reasonably well-remunerated and that he will not be tempted to work in Australia, as the applicant instructs that he is essential to the operations of the business for whom he is employed and that a prolonged absence by him would affect the day-to-day operations of the business and relationship with customers.  It is argued that the family is registered with Social Security of National Fund (NNSF) a free Medical Scheme for employees and that as the applicant and his family have access to free medical treatment, immunisations, hospital admissions, surgery and consultations, his salary does not need to cover medical expenses, thereby leaving left-over discretionary spending. 

    The migration agent also asks the Tribunal to consider that the cost of living in Lebanon is much lower than in Australia and that without having to pay medical costs or rent, the applicant’s salary of USD1,500 per month is a “reasonable” one. In addition, the applicant does not receive gas bills as Lebanon’s gas supply is individually sourced by purchasing gas cylinders.  The migration agent explains that the applicant wants to see his sister and to tour the country for a period of four weeks and will return to Lebanon to resume his employment which is vital to his subsistence in Lebanon. 

    She also writes, “While it is acknowledged that the adverse country information may be a factor that could encourage the Applicant to remain in Australia, it is submitted that the Applicant must be considered on his own merits.  In the present case, the Applicant’s age, family and work circumstances, together with the absence of any adverse migration history on the part of the Applicants or any other close relatives, suggest that the incentives for him to comply with conditions and return within the visa validity far outweigh the factors that would encourage him to remain”. 

    ·Post hearing submissions noting that while protests have occurred in Lebanon recently, such protests are not predominant in the applicant’s region, namely South Beirut, and that the protests have been peaceful and that protests have occurred mainly in the north of the country in Tripoli.

    cl.600.211(a)

34. In considering whether a visa applicant to stay temporarily in Australia for this purpose, the Tribunal must genuinely intends 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)).

35. The applicant has travelled to Turkey and the Tribunal accepts that this is the case.  Nonetheless, the applicant has little other travel to countries similar to Australia which might present him with the opportunity to provide for his family’s future, especially that of his children’s education and prospects.  The Tribunal has heard the applicant’s arguments that he does not want his children to adopt any other lifestyle or culture but given the country information about Lebanon’s difficulties, it does not seem implausible that the family would attempt to seek better economic circumstances for their children. 

36. The Migration Agent has argued that the Tribunal should place positive weight on the fact that the applicant has little international travel and that this demonstrates that the applicant has not breached any visa conditions.  The argument might have some merit, however, clearly in being satisfied that the applicant genuinely intends to stay temporarily in Australia, positive evidence of compliance with conditions would be far more compelling. 

    cl.600.211(b)

37. 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.

38. The Tribunal has taken the evidence into account individually and holistically.  The Tribunal accepts that the applicant does not need to pay rent or medical costs and that his salary in terms of Lebanese standards overall is “reasonable”.  Further, both the applicant and his spouse are working and therefore are permitted a lifestyle that does not demonstrate significant financial need. 

39. The Tribunal does not place adverse weight on the fact that the sponsor was not aware that the applicant had been working for the same company for many years, as attested by the applicant who stated that the paperwork demonstrated that he had been working with IDRISS TRADING since 2014 because it was only then that the company operated under a license.  The Tribunal accepts that the sponsor was not attempting to mislead the Tribunal in any way. 

40. What is noteworthy, however, is that there is little evidence supporting the applicant’s claims that he has been employed as a SALES MANAGER or in any other capacity prior to 2014.  Had the applicant been working for an unlicensed company such as IDRISS TRADING prior to 2014, including as a mechanic, the Tribunal is perplexed as to why the owner of the company has not mentioned this in the brief letters provided in support.  There is also little corroborative evidence to confirm  the applicant had been working since 20 years of age as claimed, and what he might have been doing work-wise prior to 2014.  The Tribunal accepts that the applicant may have worked as a mechanic for some of the time, but he is 43 years of age and the Tribunal would have expected that the applicant would be able to demonstrate that he has had more or less continual work since leaving school. 

1. The applicant has acknowledged that prior to 2014 things were chaotic in Lebanon and presumably he meant that businesses were not necessarily all registered and that this is why he does not have evidence of his work prior to 2014.  Nonetheless, the Tribunal does have reservations that the applicant’s work history is somewhat opaque and possibly precarious prior to 2014, which includes the period after his twins were born. 

2. While the Tribunal accepts that the applicant may now be working with a solvent company and has done so for 5 years during a stable period in his work life, the memory of the “chaos” as he put it in Lebanon, prior to 2014 would be fresh in his mind, as would be the urgency of the need to secure a future for his family. 

3. The Tribunal has examined the Bank Accounts that have been submitted by the applicant demonstrating that he has substantial savings, in fact significant savings relative to the low cost of living in Lebanon.  Having examined these accounts closely, the Tribunal notes that there are large injections of funds in terms of cash deposits.  For example, on 3 March 2018 the applicant deposited USD8,920.00 in cash.  And there have been several large injections of cash over the period March 2017 – March 2018, including USD9,500 on 10 May 2017.  The more recent Account Statements do not indicate such large cash deposits. 

4. Firstly, it is evident that the applicant’s salary of around USD1,500 is not being directed to such an account on a monthly basis and the Tribunal is therefore left to question the origin of the large funds initially submitted to the Department to demonstrate the applicant’s financial capacity.  Indeed, the Tribunal questions whether the large sums were not deposited at the time of application to inflate the savings held by the applicant.  While the later account demonstrates that these funds continued to remain in the account despite the fact that much lesser amounts in cash deposits were made in the account submitted at the time of review, the Tribunal queries whether the dissonance in the amounts deposited at the time of application and at the time of review is because the funds are only being held in the account for the purposes of the applicant attaining a visa to Australia.  Furthermore, the more recent account demonstrates that the applicant has not been able to sustain the previous pattern of savings, leaving the Tribunal to query whether he ever had the capacity to save around USD19,000.  The Tribunal has some reservations about these bank accounts therefore.

5. The migration agent has also been keen to emphasise to the Tribunal that it cannot make a decision on the country information alone, in particular the history of sectarian violence in Lebanon.  The Tribunal has heeded this caution.  Further, the Tribunal accepts that protests have not occurred in South Beirut where the applicant and his family reside and that sectarian violence in Lebanon is a long-standing issue.  Were the Tribunal only required to take into account sectarian violence in Lebanon it would mean that very few visitors would be permitted to travel to Australia on that basis alone and clearly persons from Lebanon do visit Australia. 

6. The Tribunal explained at hearing, however, that it was not so much sectarian violence and historical animosities between various groups in Lebanon that were of concern, or the fact that protests have recently occurred there.  Indeed if persons were precluded from travelling to Australia on the basis that their home country held protests, most nationals would never be able to travel to Australia, which is clearly against the spirit of the Visitor visa regime and against the regulations themselves.  What the Tribunal does consider relevant, however, are the reasons people are protesting as well as the concern the Tribunal has about the reaction of the authorities when people attempt to assert their human rights to freedom of expression and assembly.

7. Below is the relevant country information put to the sponsor and applicant which would partially contradict the migration agent’s assertions that protests were occurring predominantly in Tripoli and not in the applicant’s home area in the south of Beirut:

   Tensions have flared in Lebanon after President Michel Aoun urged protestors to go home, sparking a new wave of demonstrations during which a man was shot by a soldier who opened fire to disperse people blocking roads south of the capital, Beirut.[1]

   [1] Aljazeera, News Middle East, Man killed as tensions flare in Lebanon after Aoun interview, https//: accessed on 14 November 2019.

8. In terms of the reasons for the protests and the authorities’ excessive reaction, the Tribunal put the following to the sponsor and applicant:

   (Beirut) – Lebanon’s security forces used excessive and unnecessary force against protestors in downtown Beirut on October 18, 2019, Human Rights Watch said today.  The Internal Security Force’s riot police fired tear gas at thousands of largely peaceful protesters, including children, in downtown Beirut.  The army cleared the areas, sometimes using excessive force as riot police fired tear gas and rubber bullets at fleeing protesters. 

   The anti-government demonstrations, which began on the evening of October 17, were prompted by the government’s announcement of new taxes, including on the messaging application WhatsApp, which it revoked hours later due to popular outrage.  However, the countrywide protests devolved into expressions of anger against the entire political establishment, whom they blame for the country’s dire economic situation. (Tribunal emphasis). 

   ‘Instead of protecting protesters demanding reform, Lebanese security forces beat and arrested them, causing far more havoc than the protestors, “ said Sarah Leah Whitson, Middle East director at Human Rights Watch. “This should be a wake-up call to the Lebanese government that they can’t abuse the patience of their long-suffering citizens forever”. 

   Thousands of protesters gathered across Beirut decrying what they called the government’s corruption and economic mismanagement and calling for its resignation.  Similar protests took place in cities across the country, including Tripoli, Jbeil, Baalback, Said, Sour and Nabatieh.  

   Human Rights Watch observed the protests in Beirut, which took place downtown, in Hamra, and the main highway to the airport.  During the day, thousands of people who appeared to be from a variety of sects, socioeconomic classes, and ages gathered in downtown Beirut, chanting against corruption and seeking the formation of a new government…
   ….

   Human Rights Watch observed dozens of people having trouble breathing and vomiting from tear gas inhalation, including women and children.[2]

   [2] Human Rights Watch, Lebanon: Security Forces Use Excessive Force Against Protesters,

9. The Tribunal considers that the country information shows that the country’s economic situation is in such a state it has forced people onto the streets to demand transparency and proper economic management.  The Tribunal appreciates that the applicant has not participated in protests and may have no interest in doing so, but this does not mean that new taxes and other measures imposed on the population do not affect him and that the general economic circumstances of the country are of no concern to him in terms of the future of his young family. 

10. While the Tribunal accepts that the banks re-opened after closing, however, the fact that this could occur, meaning that customers could not have access to cash, demonstrates the extent of the malaise in the economy and the government’s intolerance for peaceful protest and opposing voices.[3]

    [3] Aljazeera, Stefanie Dekker, Lebanon banks remain closed, accessed on 14 November 2019.

11. Given the Tribunal’s reservations about the applicant’s savings capacity and given the Tribunal’s questions around whether the applicant has indeed had a more or less uninterrupted work life, together with the country information concerning the economic situation in Lebanon currently, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    cl.600.211(c)

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal has taken into account the migration agent’s submissions that in various decisions by the Administrative Appeals Tribunal and the Federal Court of Australia, little if any weight has been given to the general civil unrest in Lebanon in terms of the grant of protection visas, meaning that the applicant is not looking to change his status by applying for refugee status.  The Tribunal also notes the list of decisions remitted by the Tribunal despite the range of security challenges faced by Lebanon.  In this case, however, the Tribunal has not relied solely on the security situation in Lebanon, but has also relied on the economic situation and its human rights approach to freedom of expression in light of recent events.  Of concern also, are the applicant’s personal circumstances in terms of his work history and ability to provide his young family with a secure future in the context of the dire economic situation faced by the country.

13. The Tribunal has also noted that the sponsor has claimed that she simply wanted to show her brother how beautiful Australia is in gratitude for his support of her, and the applicant and sponsor both emphasised that it was the sponsor who was promoting the travel.  The Tribunal is not convinced, however, that the applicant would be undertaking travel outside his country if he were not motivated by something more significant such as a migration outcome for his family. 

14. While the Tribunal appreciates that the applicant could have fled his country at any time to seek a better life for his family, including prior to having his children, the Tribunal also notes that the applicant now has a settled relative in Australia (the sponsor) who through a Visitor visa may provide him the opportunity for a long-term migration outcome out of Lebanon.

15. 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

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

    Rosa Gagliardi
    Member

    
    
    

19 October 2019, accessed on 14 November 2019.