1514686 (Migration)

[2016] AATA 3145

1514686 (Migration) [2016] AATA 3145 (3 February 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Aisha Fadol Daleel Mohammed

VISA APPLICANTS:  Mr FADOL DALEEL MOHAMED ISMAIL
Mrs SADIA DAWOUD MOHAMED ISMAIL

CASE NUMBER:  1514686

DIBP REFERENCE(S):  BCC2015/2111011

MEMBER:Michelle Grau

DATE:3 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 03 February 2016 at 3:57pm

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 27 August 2015 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 27 July 2015. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied the applicants intended a genuine visit temporarily.

5. The review applicant appeared before the Tribunal on 29 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal 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 applicants seek the visas for the purposes of visiting their daughter, the review applicant. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

11. The visa applicants have never previously held an Australian visa therefore cl. 600.211(a) is not applicable.

12. 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.

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

14. According to the visa application and supporting documents, the visa applicants are the parents of the review applicant and they live in Khartoum. They own a dairy farm, have significant savings and six sons living in Khartoum and two daughters, one of whom is the review applicant.

15. The review applicant’s evidence confirmed the information in the visa applications. The review applicant also added that two of her brothers in Sudan were police officers, two were in business, one worked in a takeway shop and her sister lived in Egypt. The visa applicants have travelled to Egypt for a holiday and returned to Sudan. The visa applicants also look after the review applicant’s grandparents. The review applicant works at the Brisbane airport and earns about $1500 a fortnight and her husband works for a solar company. They rent a house for $305 a week. She stated the visa applicants had no reason to stay in Australia as all of their family are in Sudan. Their farm business and Sudan is their whole life.  She would like her sister to visit Australia in the future also.

16. The tribunal accepts the review applicant is a credible witness as she gave free flowing, coherent and credible evidence. While the tribunal was concerned about the applicants’ incentive to return to Sudan given the political and economic situation there, the tribunal accepts they have significant family and personal ties in Sudan. As well they are relatively well off, owning a dairy farm with significant savings. Further, 6 of their children live in Sudan and have good jobs. The tribunal also accepts the visa applicants’ care for the grandparents and that this is a further incentive for them to return.

17. The tribunal also considers as this is a first visit and it is likely that they will want to visit in the future there is a strong incentive for the visa applicants to abide by conditions of this visitor visa to ensure this is possible in the future. Further, the tribunal considers that the review applicant (and possibly her husband) want other relatives to visit in the future is a further incentive for the visa applicants to abide by the conditions of the visa. The tribunal accepts the visa applicants will abide by the above visa conditions.

18. On balance, the tribunal finds the visa applicants’ family, personal and financial ties in Sudan outweigh concerns about the situation in Sudan. Further, the tribunal considers the visa applicants’ age and desire for future visits to Australia by them or other family in the future are a further incentive for them to return and to abide by the visa conditions and genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted.

19. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

20. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Michelle Grau
    Member