1506503 (Migration)

[2015] AATA 3395

1506503 (Migration) [2015] AATA 3395 (17 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ghazwan Faisal Ali Fahmi

VISA APPLICANT:  Ms Ghada Faisal Ali Fahmi

CASE NUMBER:  1506503

DIBP REFERENCE(S):  BCC2015/842944

MEMBER:Karen Synon

DATE:17 August 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 17 August 2015 at 3:11pm

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 16 March 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 16 March 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 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 was not satisfied that she genuinely intends to visit Australia temporarily.

5. The visa applicant’s brother, Mr Ghazwan Faisal Ali Fahmi, applied for review of the primary decision on 12 May 2015 and provided a copy of the department’s decision to the Tribunal.

6. Prior to the hearing the review applicant provided the following relevant statement:

   Ghada is applying for a visa to visit me and my wife and our new baby after she is born.  My parents cannot travel at this time and Ghada is the only family member who would be able to visit in the foreseeable future and this is an important event in our family life which I would like her to be able to share.

   Ghada would also like the opportunity to take part in a Graduation ceremony for her Master of Education degree form Deakin University.  Because of the situation in Iraq when she completed her Bachelor’s degree she was unable to attend graduation.  Deakin University has indicated that they will allow her to attend a ceremony whenever she is able to.

   Ghada applied for a visitor’s visa in 2014 to attend my wedding and her own graduation which occurred within a week of each other.  This was refused.  In the meantime, I have become an Australian citizen and therefore she has applied for a sponsored visa.

   The main issue for the refusal of a visa is that the case manager “is not convinced” she will return to the UAE.  This is noted in the refusal…I am certain Ghada would not abandon her children.  She is their sole provider and has been since they have all lived in the Emirates.  She has been alone with them in the UAE for 10 years.  Her history of unwavering care and nurture of them is strong evidence that they are the most important priority.  She has travelled before for short holidays without her children but always returned to them.  The children represent the most powerful incentive to return and therefore comply with the visa regulations.

   I find it unusual that the department sees the ownership of property as more often incentive than family to return to the UAE.  As part of an employment contract Ghada and her children are provided with accommodation, there is no need to own any property.  Family is the most important aspect of our culture and the main reason I am seeking an opportunity for my sister to visit.

   Residence in the UAE is linked to employment.  Residence visas are sponsored by the employer.  In the documents provided for the visa application Ghada has a contract for a full-time, ongoing position at Ajman Academy.  Visas are typically given for three-year periods and renewed, updating salary conditions, address and health records.  Ongoing employment mean she will automatically be sponsored for residence.

   Ghada has a demonstrated history of working at the Victoria International School of Sharjah for eight years which involved three contract renewals, each of which were given enthusiastically.  The evidence is that the three-year visa does not indicate she would not comply with these regulations as she has a history of maintaining a household and family in the Emirates for over a decade.

   Because of the completion of her Master’s degree, Ghada has been able to obtain a middle management position as Head of Information Technology at Ajman Academy, a highly reputable international school.  Because of the current value of the Australian dollar, Ghada’s wages in the UAE are higher than a similar position in an Australian school.  The employment also provides free high quality education for the children along with accommodation and health care for herself and children, as well as significant annual bonuses.  While she does not own property there are significant economic incentives to return to employment and residence in the UAE and comply with visa regulations.

   Ghada has a history of travel to: Turkey; Malaysia; China; United States; and Jordan.  [She] has complied with visa regulations on all occasions returning to work on time and meeting all legal requirements.  Her history indicates a pattern of obeying the laws of wherever she is.

   Ghada has been a law-abiding citizen in the UAE.  The visa application includes a police check.  For the visitor’s visa, the Principal of her school provided her with a letter indicating his support for her application and confidence that she would return to work [to the] UAE.  Two Australian citizens in responsible positions, John McSwiney and Dr Greg Whateley both believe her character is such that she will comply with visa regulations.

   Ghada has carved out a life and career for herself in the United Arab Emirates in the field of international education.  She has been and continues to be successful in the field of education, gaining recognition for her work from the various authorities with whom she works.  I have complete confidence that she will abide by all regulations.  I understand that in some cases a bond may be payable to ensure that visitors leave Australia.  If that were offered to Ghada, I would have no hesitation in posting it is am certain that the money would be returned when she left the country.

7. Also provided before the hearing were following two letters of support:

   ·     Dr John McSwiney, Director Victorian Curriculum and Assessment Authority in a letter, dated 4 August 2015, writes that he has known the visa applicant for over 8 years and in that period has worked closely with her on issues related to the delivery of VCE in the Middle East and in strengthening VCE delivery to students around the world.  He was a joint speaker with the visa applicant at International VCE Conferences in the Chinese cities of Wenzhou and Suzhou and in her presentations she demonstrated the latest innovations in computer-based learning.  These were highly regarded by the government officials, school leaders, teachers and administrators who attended.  Dr McSwiney writes that the visa applicant has played a pivotal role in developing contemporary pedagogy for local Islamic Studies and Arabic curriculum and has made a valuable contribution to the success of the VISS school and to the international reputation of Victorian education practice.  He also writes that the visa applicant is a consummate professional who is forthright, erudite, ethical, cooperative and highly intelligent with a passion for international education and enhancing learning experience for teachers and students.  He fully supports her application for a visitor visa.

   ·     Professor Greg Whateley, Dean, University of Western Sydney College, writes that he met the visa applicant on a visit to the Victoria International School of Sharjah and she impressed him as a highly ethical and responsible teacher.  He also writes that he is familiar with her work in producing and editing an application for school registration by the Australian Institute of Music High School Melbourne to the Victorian Registration and Quantifications Authority which was a lengthy and complex document which displayed an understanding of the regulatory framework and subsequent nuances which assisted in a successful application process.  Professor Whateley supports the visa applicant in her application and is confident she will meet all legal requirements.  If successful it would be his pleasure to bring her to visit the University of Western Sydney College.

8. The review applicant appeared before the Tribunal on 17 August 2015 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant, Ghada Faisal Ali Fahmi via telephone from the United Arab Emirates (UAE).  The Tribunal also took witness evidence from Mr Thomas O’Connor; a professional colleague of the visa applicant.

9. The review applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

10. In summary the review applicant gave the following evidence at the hearing:

    His father lives in Baghdad while his mother and younger sister live in Jordan.  His parents are not separated but could not make a shared decision on where to live.  His mother prefers to live in Jordan with her extended family including her sister, aunties and cousins.  Many of them moved there in the mid-1990s.  His younger sister is single and an artist; she paints and does interior design.  The visa applicant is a citizen of Iraq but she left there many years ago and now has an established lifestyle in the UAE.  The family has never suffered any persecution or discrimination in Iraq and the review applicant described them as a liberal/secular family.  He applied for his parents to visit Australia for his wedding but this visa was refused.  He has never had any family visit Australia.  The review applicant came to Australia on a 457 visa as an Emergency and Critical Care doctor.  He did his initial medical training in Baghdad after attending a Catholic school where he was taught in English.  He completed his Masters in Malaysia and there met Professor Cameron who was the Director of Emergency Medicine at the Alfred Hospital.  He was his Masters Examiner and he encouraged him to consider practising medicine in Australia.  He married an Australian citizen in December 2014.  His wife is a nurse and they are expecting their first child on 1 September.  They honeymooned in Dubai and met with his family including his two sisters and his mother and father.

    His sister, the visa applicant, has applied on many occasions to visit Australia and to study because she then worked in a Victorian school in the UAE and other teachers promoted Victoria and its education system.  Every time he suggests she apply for a visa, his sister is not keen due to the administrative work and the number of refusals she has received.

    The visa applicant is divorced and has two children who attend school in the UAE.  He is prepared to pay a bond of up to $20,000 to guarantee his sister will comply by the terms of her visa and depart Australia within its validity.  He is very confident that she will not breach any of the visa conditions.

    He seriously regrets that no family were able to attend his wedding.  He has worked hard for his achievements and would never risk damage to his reputation or to his wife’s reputation by his sister not abiding by any visa conditions.

11. In summary the visa applicant gave the following evidence at the hearing:

    She wants to visit Australia to spend time with her brother and meet her new niece.  She is a first-time aunty and her only brother lives in Australia.  She also hopes to attend her graduation ceremony from Deakin University.  Due to her employment commitments she can stay a maximum of 1 to 2 weeks in Australia.  During her visit her mother will look after her children either in Jordan or in the UAE.  If the children are on school holidays she will take them to Jordan but it if it is during term time her mother will come to the UAE. 

    She left Iraq in 2006 because the opportunity arose for her husband to work as an IT Network Administrator.  The UAE is a nice, stable place with a similar culture to Iraq and also convenient because it is still close to her family.  Her father has visited her many times from Iraq.  She is now divorced and her former husband has re-partnered and lives in the USA where he is a citizen.  Her children have visited the USA twice to see their father.

    In addition to travelling to China and Jordan frequently the visa applicant has also travelled to the USA for a holiday last year and to France in December 2014 also for a holiday.  She has never experienced any discrimination or persecution and, at the moment, has no desire to live in Australia.  She finds the UAE very convenient because her family is provided with free accommodation, free education, free health care and airfares to see her family.  She sees it is as extremely important to raise her children in a religious culture.  She describes herself as a progressive, open minded, practising Muslim and considers religion to be a good ethical compass.

    She left the Victoria International School of Sharjah in December 2014 as she was offered a new position at the Ajman Academy.  This school follows the British curriculum and she was promoted to a management position.

12. In summary Mr Thomas O’Connor gave the following evidence at the hearing:

    Mr O’Connor is a former colleague of the visa applicant at the Victoria International School of Sharjah which is a joint project between the Emirate of Sharjah and the Victorian government through the Education Department.  Mr Thomas explained that the Victorian Education Department sponsored this school and is constantly seeking to expand its education services and curriculum to other countries.  His position at the Sharjah school was Program Manager.  The school started in 2003.  Earlier the Sheik of Sharjah went around the world looking at various education systems and chose Victoria to co-sponsor the school which was to be known as a Lighthouse School in the Emirates.  Mr O’Connor was responsible for hiring local staff that were responsible for teaching the Arabic language and Islamic Studies and for mentoring the Arabic teachers in Victoria’s education pedagogy.  In this respect the visa applicant was most impressive and the Principal would take her to other Emirate countries to demonstrate and profile the school and her class was typically chosen as one of the model classes for any visitors to the school.  The school has about 3,000 students and 180 - 200 teachers of which 20 are locals.  Most of the teachers are Victorians on secondment or contract.  During her time at the school the visa applicant progressed to being a teacher of VCE IT.

    By way of background Mr O’Connor explained that he now works with other schools including Thomas Carr College and Firbank Grammar to deliver VCE to schools in China and that he has invited the visa applicant to visit China to talk about education opportunities and provide a demonstration lesson in particular focusing on the modern use of IT in classrooms.  She visited schools in China that were/are considering offering the Victorian VCE program including a Uyghur school.  Twenty Chinese schools now deliver the Victorian VCE system.  These schools pay a licence fee to the Victorian government to deliver VCE.  Schools in Vietnam, South Africa and Timor-Leste see also deliver the Victorian VCE curriculum.

    Mr O’Connor said the applicant has recently accepted a promotion to a management position as the IT Coordinator at the Ajman Academy (a neighbouring Emirate).  She is also responsible for reviewing all staff training.  Mr O’Connor said there is no chance that the visa applicant will overstay or not comply with her visa conditions as she is a person of ethics and integrity and he has absolute confidence in vouching for her.  He said she is far better off economically in the UAE than in Australia as she would not be able to secure a teaching job here and her first commitment is to her children who are the mainstay of her life.  In the UAE they receive free education of a quality she could not afford here.  Mr O’Connor submitted that the visa applicant has made a great contribution to Victoria and to its educational reputation and pointed out that people such as Dr John McSwiney, the Director of the Victorian Curriculum and Assessment Authority and Professor Greg Whateley from the University of Western Sydney both know her and would not jeopardise their reputations in supporting and commending her if they had any concerns about her intentions.

13. Following the hearing the Tribunal was provided with a copy of the visa applicants visa to the USA which was issued on 16 June 2014 and expired on 14 June 2015.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In the present case, the visa applicant seeks the visa for the purposes of visiting family.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

17. 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).

18. The visa applicant has never held an Australian visa.  Accordingly there is no evidence of non-compliance with conditions of any previously held visa.  However the visa applicant has travelled extensively both in relation to her profession and for recreation including recently to the USA.  The Tribunal has been provided with evidence of her USA visa that was issued on 16 June 2014 and was valid for 12 months until 14 June 2015.  The Tribunal also accepts that the visa applicant has recently holidayed in France.  On both occasions she returned to the UAE within the validity of her visas.  The Tribunal accepts this travel to other ‘western’ countries as persuasive evidence of her attitude to visa compliance.

19. 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.

20. The Tribunal discussed the above conditions with the review and visa applicants at the hearing.  It accepts the review applicant’s evidence that he is acutely aware of these conditions and the implications and consequences of any non-compliance on him in terms of forfeiture of any security lodged and a great difficulty in future sponsorships.  The visa applicant is proposing a short visit of 1 to 2 weeks to visit her brother and her niece due to be born on 1 September.  She will also arrange to attend a graduation ceremony in relation to a recently completed Master of Education at Deakin University.  The Tribunal accept that the applicant has no intention or need to work or study in Australia during this brief visit.  It further accepts that as a single mother the continuing presence of her 2 young children in the UAE provides a powerful incentive for her to return to her country of residence after her short visit.

1. The Tribunal has also considered all other relevant matters: cl.600.211(c). In particular the Tribunal found the review applicant to be sincere and genuine in his evidence and his earnest desire to have his sister visit Australia.  The Tribunal considers that his senior position as an Emergency doctor at a major metropolitan hospital is sufficient reason for him to not want to jeopardise either his reputation or that of his wife or her family by sponsoring a person who did not comply with all visa conditions.  The Tribunal also accords significant weight to the written evidence of Professor Greg Whateley and Dr John McSwiney and their unequivocal support and testament to the visa applicant’s professionalism and ethics.  The Tribunal also accords significant weight to the oral evidence of Mr Thomas O’Connor who attended the hearing and spoke of the esteem with which the visa applicant is held in relation to her promotion and demonstration of the Victorian VCE curriculum both in the UAE and in China.  Finally, the Tribunal considers the visa applicant’s employment conditions including free private education for her two children, free accommodation, free health care and an attractive salary all provide a very strong incentive for her to return to her current country of residence before the expiration of the visa, should be granted.

2. In arriving at this decision the Tribunal has carefully considered the comments and concerns of the delegate both in relation to the absence of property ownership and that should the visa applicant have to return to Iraq, she would be returning to a country in which the security situation has deteriorated significantly.  The Tribunal accepts that the applicant has no need to purchase property as accommodation is provided as part of her employment package.  It further accepts that she will have ongoing residency in the UAE for the period of her professional employment which, at this stage will be for at least 2½ years.  Having this evidence before it the Tribunal is satisfied that the concerns noted in the primary decision have been addressed.

3. 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

4. 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.

   Karen Synon
   Member