1508566 (Migration)

[2015] AATA 3586

1508566 (Migration) [2015] AATA 3586 (2 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Louai Abdelrazek Abdelmoez Abdelkader

VISA APPLICANT:  Mr Shady Abdelrazek Abdelmoez Khalifa

CASE NUMBER:  1508566

DIBP REFERENCE(S):  bcc2015/1268043

MEMBER:Chris Keher

DATE:2 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 02 November 2015 at 10:22am

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 21 May 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 1 May 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 the delegate was not satisfied the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 15 October 2015 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information about a range of matters in writing. In particular the letter asked for the following information:

   You are invited to provide the following information in writing:

   ·The purpose and duration of the proposed visit;

   ·Confirmation of the review applicant’s family composition;

   ·The review applicant’s migration and travel history including a full copy of passport;

   ·Does the review applicant have any other relatives in Australia?

   ·If so, what is their migration history (if known to the review applicant)?

   ·Has the review applicant previously sponsored the visa applicant or any other relatives, and if so, what was their compliance? i.e did they comply with all visa conditions? If not, why are they sponsoring the visa applicant now?

   ·What are the visa applicant’s circumstances in their home country? Please provide evidence of:

   oAddress and who they are living with;

   oFamily composition and ties;

   oWork history including dates and employer detail;

   oIncome source – provide documentary evidence of this;

   oAny other business, cultural, family ties;

   oDoes the visa applicant have any issues or concerns about the economic,

   security, political situation in their home country?

   ·Has any other family member left their home country in recent times?

   ·Has the visa applicant previously travelled to Australia or anywhere else previously? If so when?

   ·If the visa applicant has travelled to Australia provide specific detail of periods, type of visa and reasons for the visit/visa.

   ·Has the visa applicant ever overstayed a visa in Australia? Provide detail including period and reasons.

   ·What type of visas has the visa applicant ever lodged for Australia? What was their outcome? Are any pending? What is their progress?

   ·If granted the visa will have certain conditions (no work, no further stay, must not remain beyond visa period, no more than 3 month study). How can the Tribunal be satisfied that the visa applicant will not overstay and/or work?

   ·Do you understand the implications if the visa applicant does not comply with the conditions of the visa, i.e. if they do not leave upon its expiry?

   ·Are you prepared to give a financial security? How much? What is your capacity to offer this?

   ·Do you understand about security bonds, and the consequences of forfeiture of that security bond?

   ·Are you aware how non-compliance may affect any future sponsorship you wish to make i.e. 5 year exclusion on making another sponsorship?

   ·Do you intend to sponsor other relatives in the future?

   ·Anything further you wish to submit on the visa applicant’s intention to genuinely visit Australia?

6. The invitation was sent to the email address provided in connection with the review and advised that, if the information was not provided in writing 29 October 2015, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the [information OR comments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The review applicant is Mr Louai Abdelrazek Abdelmoez Abdelkader. He is an Australian citizen, is 28 years old, and works as a factory hand for a small goods company. He is the brother of the visa applicant. The visa was requested so that the visa applicant could travel to Australia from 20 June to 20 July 2015 to attend his brother’s birth day in Australia in July 2015.

10. The visa applicant Mr Shady Abdelrazek Abdelmoez Khalifa he is an Egyptian citizen and is 32 years old. He is married and has a son born in April 2010. He has an Egyptian passport issued in January 2014. It is claimed he works as a supervisor for a petroleum company at a petrol station. In the application it states he has been employed since 2 March 2006, and has his own funds for the travel as he works for a big company in Egypt and he also has 2 brothers in Australia.

11. The review applicant provided a copy of the delegate’s decision with the application for review and also some further documents in support of the application. The delegate’s decision in part raises issues of credibility as the applicant failed to disclose that he had a prior visa application refused in Cairo on 21 July 2014. One of the documents provided by the visa applicant is a letter of reference (folio 1) from his employer saying in part he has worked for them since 1 March 2011. A copy of his passport (folio15) notes his employment as “researcher of company”.

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of attending his brother’s birthday. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

14. 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)).

15. It seems the visa applicant has not previously travelled to Australia; there is no apparent evidence of non-compliance with conditions of a previously held visa.

16. 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.

17. As detailed above the review applicant has not responded to the information request and accordingly I cannot be satisfied of this requirement.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)). As detailed above the review applicant has not responded to the information request and accordingly I cannot be satisfied of this requirement. I note as well that the stated purpose of the visit has passed. I have concerns in relation the visa applicant’s employment (noting the differing information of what he does and how long he has been employed).

19. 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

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

    Chris Keher
    Member