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1509334 (Migration) [2015] AATA  3647  (10 November 2015)

Last Updated: 26 November 2015

1509334 (Migration)  [2015] AATA 3647  (10 November 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Dr AHLAM YEHIA

VISA APPLICANT: Mr AMIN ABDELHAMID ABDELWAHAB YEHIA

CASE NUMBER: 1509334

DIBP REFERENCE(S): BCC2015/1644350

MEMBER: Melissa McAdam

DATE: 10 November 2015

PLACE OF DECISION: Sydney

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 10 November 2015 at 5:10pm

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 18 June 2015 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 July 2015. 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 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 visa applicant provided the following information in his visa application:
   1. The visa applicant is a 40 year old male from Egypt. He lives in Alexandria in Egypt.
   2. He is married with two young children. He has been employed as a supervisor in the hospitality industry since 1998.
   100. He wants to visit Australia between 1 September 2015 to 26 November 2015 or up to three months.
   4. He will not undertake study in Australia.
   5. He will visit his sister, the review applicant, in Australia.
   6. He has $US 5,000 to fund his visit to Australia.
   7. He submitted the following document copies:
      1. Letter from Hamdy Kebab Shop confirming the visa applicant is employed there since 1998 as a supervisor.
      2. His Marriage Certificate.
      3. Copies of his passport pages showing Australian stamps.
      4. The purchase contract for his apartment.
      5. His Birth Certificate.
      6. A letter of invitation to Australia from the review applicant. The review applicant writes that she works as a medical officer at Western Sydney Health District and that she wants her brother to visit her to celebrate her grandchildren’s first birthday.
      7. The review applicant’s bank account statement showing a closing balance of approximately $7,000.
5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the visa applicant has limited previous international travel; he provided no evidence of income; and he had not provided evidence of sufficient funds to cover his trip to Australia.
6. The Department records note that the visa applicant was previously granted a three month Visitor visa to Australia on 4 December 2008. He arrived in Australia on 1 January 2009 and departed Australia on 26 March 2009.
7. The Department Delegate has also noted that the visa applicant was refused a sponsored Visitor visa in 2007 and 2011.
8. The review applicant provided the following written information to the Tribunal:
   1. The visa applicant had previously been refused a visitor visa by the Department and had applied for review of that decision to the Migration Review Tribunal (MRT). The MRT remitted the matter so that the visa applicant was granted the visa. He visited Australia and complied with his visa conditions.
   2. Because family values are a priority in Egypt the visa applicant would not leave his wife and two children for any reason.
   100. The visa applicant is a middle class worker who works long hours and has lots of responsibilities as a manager. This is why he has not had much time for international travel.
   4. The visa applicant’s savings are in cash, not in the bank, which is common in Egypt.
   5. The visa applicant wants to visit the review applicant and her family including her grandchildren who are now one year old.
9. The Tribunal’s records confirmed the review applicant’s information regarding her application for review of a visa refusal decision in 2008 [MRT File Number 0802745].

CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.
11. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.
12. 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)).
13. The visa applicant previously held a three month Visitor visa in Australia. Department records show he departed Australia before the expiry of the visa. There is no indication he breached any condition of the visa. On the evidence before it the Tribunal is satisfied that the visa applicant has substantially complied with the conditions of a previously held visa.
14. 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.
15. The visa applicant is a 41 year old man from Alexandria, Egypt. The Tribunal accepts that he has been employed since 1998 as a supervisor in a kebab shop. The Tribunal accepts that he has savings. The Tribunal is also satisfied that the visa applicant’s sister in Australia will accommodate the visa applicant and has the financial resources to readily cover the expenses of his trip to Australia. The Tribunal considers there is no indication the visa applicant wishes or needs to work while in Australia. In view of these circumstances the Tribunal is satisfied the visa applicant intends to comply with condition 8101.
16. There is no evidence or indication before the Tribunal that the visa applicant wishes to study in Australia and the Tribunal is satisfied the visa applicant intends to comply with condition 8201.
17. The Tribunal has also considered all other relevant matters (cl.600.211(c)).
18. The Tribunal considers that the visa applicant has demonstrated employment ties to Egypt. He has steady, valued and ongoing employment in a supervising position.
19. The Tribunal also considers that the visa applicant has demonstrated strong family ties to Egypt given the presence of his wife and young children there.
20. The Tribunal considers that the visa applicant’s family ties, and employment/business ties represent strong incentive for him to return to Egypt.
21. The Tribunal gives substantial weight to the fact that the visa applicant has visited Australia previously during which time he complied with his visa conditions and did not overstay.
22. While the Tribunal accepts there may be some wish for the visa applicant to stay past his visiting period, it considers that this concern is outweighed by the visa applicant’s need and wish to return to his wife and children and to his employment in Egypt.
23. The Tribunal also accepts that, if a security bond was required of the review applicant, the review applicant would be highly motivated to ensure the visa applicant does return to the Egypt before the expiry of his visa.
24. In sum the evidence before the Tribunal does not indicate that the visa applicant wants to visit Australia for any purpose other than a genuine temporary stay to visit his sister and her family.
25. 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

26. 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.

Melissa McAdam
Member