1511736 (Migration)

[2016] AATA 3127

1511736 (Migration) [2016] AATA 3127 (21 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Alaa Abdalla Hassan Abdelhady

VISA APPLICANT:  Mr Hassan Abdalla Hassan Abdelhady

CASE NUMBER:  1511736

DIBP REFERENCE(S):  BCC2015/1757403

MEMBER:Melissa McAdam

DATE:21 January 2016

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 21 January 2016 at 9:46am

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 25 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 review applicant was represented in relation to the review by his registered migration agent.

3. The visa applicant applied for the visa on 18 June 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.

4. 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.

5. The visa applicant provided the following information in his visa application:

   a.The visa applicant is an Egyptian national born in Gharbeya on 25 September 1986.

   b.The visa applicant wants to visit his brother and brother’s family in Australia between 20 July 2015 and 20 August 2015 and be with them during Eid. He has not seen his brother for over two years.

   c.His wife and one year old daughter will remain in Egypt. The visa applicant’s parents, sister, and two other brothers are living in Egypt.

   d.The visa applicant has been employed as a Marketing Manager for a Tourism and Aviation company in Gharbeya for 15 months. He has regular income from this employment. His brother will fund his trip to Australia and provide accommodation and food and cover any expenses incurred.

   e.The visa applicant was refused a visitor visa in 2014.

   f.He submitted the following documents:

   i.Egyptian Family Registration

   ii.Egyptian Birth Registration

   iii.Certificate from his employer confirming his employment and leave approval

   iv.Marriage Certificate.

   v.Egyptian ID card

   vi.Egyptian passport

6. The review applicant provided the following information in the visa application:

   a.The review applicant is the visa applicant’s brother. He is a permanent resident in Australia.

   b.The review applicant is self-employed as the Managing Director of two businesses.

   c.He submitted the following documents:

   i.Bank account statement

   ii.Accountant’s statement confirming the weekly turnover of his cleaning business

   iii.Tax Assessment

   iv.Egyptian passport with Australian 801 Visa stamp 

   v.Family Registration

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the non-return rate for Egyptians was higher than the general average;  he did not provide evidence of previous travel; current instability in Egypt; and the length of stay requested was not consistent with the visa applicant’s working age.

8. The review applicant appeared before the Tribunal on 20 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

9. The following is a summary of the information provided by the review applicant:

   a.The visa applicant wants to visit Australia because the review applicant is here. They are very close. The review applicant has told the visa applicant how good Australia is so that he wants to see it for himself.

   b.The review applicant has two distant cousins in Australia. His wife is also in Australia.  They no longer live together. The review applicant lives with a friend Mohammad Obeid.

   c.The applicants’ parents, sister and other brother are living in Egypt.

   d.The review applicant has not sponsored anyone to Australia before. He would like to sponsor his parents to visit Australia in the future. They have never been to Australia.

   e.He likes living in Australia because he has work here which he loves and because people treat each other with respect in Australia. His brother will not want to stay in Australia because his wife and daughter are in Egypt. Their life is stable there. They are in Gharbeya, Al Mahallah, Nimrat Al Basal. It is about two hours from Cairo and a half hour from Al Mansoura. The review applicant visited there a few months ago. The situation in the area was good, there were no problems. Nimrat Al Basal is a rural Sunni village. There are no religious problems or tensions there. There are no problems with the government.

   f.Two or three years ago the situation in Egypt was not so good but now things are normal and there is no trouble in the streets.

   g.The visa applicant’s work is in the city of El Kobra, about 12 minutes’ drive by car from his home.  He works in a tourism office. The company has work bringing people to Egypt from the Gulf countries and also arranging trips to Saudi Arabia for Umrah and Haj as well as to the Emirates and elsewhere.

   h.The review applicant is able to lodge a substantial security bond to guarantee the visa applicant’s visit in Australia. If he loses this money it would be financially difficult for him as he has ongoing expenses with his businesses.

   i.The visa applicant previously applied for a Visitor visa in 2014 as he intended to visit Australia with the singer Ehab Tawfik who was performing in Australia. Ehab Tawfik is a very famous Egyptian singer and the visa applicant played tabla for him. Ehab Tawfik applied for the visa applicant to accompany him to Australia but the application was refused.

10. The following is a summary of the information provided by the visa applicant at the hearing:

    a.He wants to visit Australia because the review applicant has told him how beautiful and clean Australia is and that people respect each other. He and the review applicant are very close and talk to each other a lot. He would like to spend time with his brother in Australia.

    b.Beauty and respect also exist in Egypt but not as much as in Australia. There is more respect for human rights and good laws in Australia. However the visa applicant has not had any problems himself in Egypt.

    c.His home village is small. It is some distance from the city. All his family live in the village except the review applicant. The security situation in the visa applicant’s home area is good. It is quiet and far from Cairo.

    d.He previously applied for a Visitor visa.  He also previously applied for a Student visa. Both applications were refused.

    e.His work is going well in El Kobra. There may be less tourists in Egypt but his company is still doing good business with arranging trips to Saudi Arabia for Umrah and Haj; families travelling for Ramadan and the Prophet’s Birthday, etc; and people from neighbouring Arab countries coming to visit places like Sharm El Sheikh and the pyramids.

    f.He submitted a letter from his employer confirming his monthly salary and approving him four weeks leave to visit Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

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

13. 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)).  The visa applicant has not previously held a substantive Australian visa so there is no evidence of former compliance or non-compliance before the Tribunal.

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.600.612):

    ·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.

15. The Tribunal accepts the visa applicant has regular and stable income in Egypt and that his employer has approved him four weeks leave to visit Australia. the Tribunal also accepts that the review applicant has substantial savings and income and can well support the visa applicant while he is in Australia. In these circumstances the Tribunal considers that there will be no need or desire for the visa applicant to work while in Australia. The Tribunal is satisfied that the visa applicant does not intend to work in Australia.

16. There is no evidence or indication before the Tribunal that the visa applicant wants to study in Australia. The Tribunal is therefore satisfied the visa applicant does not intend to study in Australia.

17. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

18. The evidence before the Tribunal indicates the visa applicant is a 30 year old married Egyptian man with family and work ties to Egypt. The Tribunal notes that one of the applicant’s siblings is in Australia but that the rest of his family, including his wife and young daughter, parents, and two other siblings remain in Egypt. The Tribunal accepts the visa applicant’s family ties in Egypt are, on balance, much stronger that those in Australia.

19. The visa applicant has submitted evidence of his employment at a tourist and aviation agency in El Kobra and the Tribunal accepts he is employed there. The Tribunal considers it represents some responsibilities as well as regular employment  for the visa applicant to return to.

20. The Tribunal notes information that there are levels of insecurity in some parts of Egypt and that the political situation in the country is not yet stable. However the Tribunal has not located any reports of incidents, tension or conflict in the visa applicant’s home area. The Tribunal is satisfied that despite security concerns in parts of Egypt the visa applicant’s home area is largely secure.

21. The Tribunal accepts that the proposed duration of stay, one month, is reasonable given it will be the visa applicant’s first visit to Australia and his first overseas travel, and it is a long distance to travel between Egypt and Australia. The Tribunal accepts that the visa applicant’s employer is granting him leave to visit Australia so that his employment will still exist on his return to Egypt.

22. The Tribunal also accepts that the review applicant would be highly motivated to ensure the visa applicant does return to Egypt before the expiry of his visa due to his desire to sponsor his parents to visit Australia in the future. The Tribunal notes that the review applicant is willing to lodge a security sum for the visa applicant’s visit to Australia and accepts this will provide further motivation for the visa applicant to abide by visa conditions and not overstay in Australia.

23. 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 see his brother and sights in Australia.

24. 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

25. 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