1505800 (Migration)

[2015] AATA 3317

1505800 (Migration) [2015] AATA 3317 (30 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Omar Babkair

CASE NUMBER:  1505800

DIBP REFERENCE(S):  BCC2015/1074143

MEMBER:Mary-Ann Cooper

DATE:30 July 2015

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 30 July 2015 at 7:41am

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 April 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 9 April 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he was not satisfied that the applicant genuinely intended only to remain temporarily in Australia.  

5. The applicant appeared before the Tribunal on 28 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from his daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

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 staying with his daughter. 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)). Departmental records confirm that the applicant has been granted three previous tourist visas, with which he has complied. There is therefore no evidence of any non-compliance with conditions of those previously held visas.

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)).

12. The Tribunal notes that the visa applicant applied in this case under the Tourist stream rather than the Sponsored Visitor stream, and there is nothing on the Department’s file which indicates that the delegate required a sponsorship under cl.600.224.  Therefore the conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)(a)):

    ·8101 – must not work in Australia

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

13. There is no information before the Tribunal suggesting that the visa applicant would engage in any work or any study. The Tribunal is therefore satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

14. The delegate’s decision recorded concern that the visa applicant has been travelling in and out of Australia since July 2009 on a tourist visa and had spent much more time in Australia than out of it. In the circumstances he was not satisfied that the applicant genuinely intended a temporary stay.

15. As indicated by his visa application, the visa applicant is a citizen of Saudi Arabia, born in 1956, who is retired. The stated purpose of his visit to Australia is to remain with his daughter, as required by the terms of her scholarship from the Saudi Ministry of Higher Education, which mandates that she be accompanied by a male family member for the duration of her study.

16. Prior to the hearing the applicant’s representative forwarded a statement and several documents to the Tribunal including the following:

    ·Certified translation of a financial guarantee from the Government of Saudi Arabia in respect of the applicant’s daughter for the duration of her study in Australia, reserving a right to cancel her scholarship if its conditions are not met.

    ·Correspondence from the Saudi Arabian Cultural Mission-Australia confirming the applicant’s daughter is a sponsored student and the details of the payments made in respect of her study

    ·A certified translation of relevant paragraphs from the General Conditions of the applicant’s daughter’s scholarship from the Ministry of Higher Education in Saudi Arabia, requiring “The existence of a Muharram (unmarriageable person) for the scholarship student , who will travel with her, and stay with her until the end of the scholarship”

    ·Further certified translations of the relevant terms from related documents

    ·Certified translation of applicant’s identity card.

    ·Confirmation of applicant’s property ownership.

    ·Passport and visa information confirming his sons’ presence in the United States.

17. In his statement the applicant said he visits Australia regularly to see and stay with his daughter who has completed her Master’s degree and is now studying for a PhD. He further states that it is a condition of her scholarship from the Saudi government that she is required to have a male family member remain with her for the duration of her study, otherwise her scholarship will be cancelled. He explained that he is the only family member who can stay with his daughter in Australia because two of his sons are currently studying in the USA,  another two are at university in Saudi Arabia and his younger son is in his third year of high school. Documents provided confirmed the family composition.

18. At the hearing the applicant said he lives in Jeddah, Saudi Arabia, with his wife and 7 children, two of whom are studying in the USA and one daughter who is studying in Australia. He confirmed that, as a condition of her scholarship, she is required to be accompanied by a male family member and, as he is retired, he is the only person available to fulfil that requirement. He claimed that her scholarship would be cancelled if he did not remain with her and that he would be unable to continue to pay for her to stay here. He confirmed that he has several assets in Saudi Arabia including apartments and businesses but no property in Australia. The Tribunal asked him why he had not applied for a Student Guardian visa instead of a visitor visa. He responded that he had been advised by his former agent that a visitor visa best suited his circumstances because it allowed him to freely travel in and out of Australia, which, he understood, was not permitted on a student guardian visa unless his daughter was with him. He said that he was responsible for his mother’s care and, as she was aged and had been unwell, he needed the flexibility to be able to come and go when necessary. When asked his intentions in relation to the visa, he said as soon as his daughter completes her study he will return to Saudi Arabia. The Tribunal invited him to comment on factors which might be considered to be disincentives for his return, specifically, the relatively high non-return rate for Saudi nationals on visitor visas to Australia and recent terrorist incidents in Saudi Arabia[1].  He responded that he and his family lived over 1000 kilometres from the Yemen and Iraq borders and are living in peace. He further stated that his entire family is in Jeddah and he and his daughter would definitely return to be reunited with them.

    [1] Dept. of Immigration. Modified Non-Return Rate Quarterly Report Ending at 30 June 2013 and Arabia accessed 28 July 2015

19. The Tribunal then spoke to the applicant’s daughter who confirmed that she had chosen to study in Melbourne, had arrived in 2009 and initially studied English. She said she then completed a Masters in Biotechnology at RMIT and was currently studying for her PhD in infectious diseases, attending the laboratory at the Burnet Institute every day. She said she expected to finish her studies in two years at which point both she and her father would be returning to Saudi Arabia.

20. The Tribunal found the applicant and his daughter to be sincere and credible witnesses. It found the applicant’s claims, that he misses his family in Saudi Arabia, is worried for his mother’s health and is in Australia for the sole purpose of his daughter’s education, to be plausible and convincing and well-supported by the documentation provided. In addition, according to Departmental records, on three previous occasions since 2009 it has granted him visitor visas for lengthy periods and there is no evidence of non-compliance with those visas. There is nothing in his personal circumstances which indicates that he intends to act in any way inconsistently with any of the abovementioned visa conditions.

21. On this basis the Tribunal is satisfied that the visa applicant genuinely intends to visit Australia temporarily for the purpose of visiting and remaining with his daughter until she completes her study and will comply with his visa conditions (cl.600.211(b) and (c)).

    CONCLUSION

22. 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

23. 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.

    Mary-Ann Cooper
    Member