2213893 (Migration)

[2023] AATA 2554

2213893 (Migration) [2023] AATA 2554 (27 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Anna Emad (MARN: 1680386)

CASE NUMBER:  2213893

MEMBER:David Crawshay

DATE:27 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 27 July 2023 at 4:17pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – visiting family and nephew’s wedding – previous substantially compliant visits – long-term rental accommodation and recent, low-paying work – two children intending to travel but not applicants for review – other family members in Australia – real concern of application for protection visa – family violence by ex-husband – offer of security bond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.612, Schedule 8, condition 8531

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 14 September 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 8 April 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the visa applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

3. 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted. In coming to this decision, the delegate was not satisfied that the visa applicant had provided sufficient evidence to demonstrate strong financial, employment or personal ties that would demonstrate an incentive to abide by the conditions of the visa.

4. The review applicant appeared before the Tribunal on 12 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this matter 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by her was subject; whether she intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

7. In the present case, the visa applicant seeks the visa for the purposes of visiting family, and specifically for the wedding on the visa applicant’s nephew in November 2023 and to visit other family members and the grave of the visa applicant’s mother. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Clause 600.211(a)

8. 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)).

9. The last substantive visa held by the visa applicant was a Visitor visa in the Sponsored Family stream. The visa, which was granted in August 2019, had the four mandatory conditions attached to it – being conditions 8101, 8201, 8503 and 8531. There is no evidence other than that the visa applicant adhered to these conditions. In particular, the Tribunal notes that she left Australia within the visa period. The Tribunal gives this evidence some weight, although it gives more weight to other factors given the change in the visa applicant’s circumstances. This is dealt with in more detail below.

   Clause 600.211(b)

10. 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 three 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.

11. The Tribunal has considered the information in front of it and accepts that the visa applicant will abide by the “no work” and “no study or training for more than three months” conditions of the visa during the period of any visitor visa granted to her. This aspect is given weight.

12. Condition 8503 relates to an entitlement and is not able to be complied with.

13. Condition 8531 is considered in more detail below.

    Clause 600.211(c)

    Travel and migration history

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has considered the visa applicant’s travel history. Apart from her last visit to Australia in 2019, which is dealt with separately above, movement records show that she had previously travelled here on two other occasions – in 1998 for what was a nine-month visit and in 2001 for a two-and-a-half month visit. While she left the country on both occasions as a legal non-citizen, records show that she was unlawful for a day when her Tourist (Short Stay) visa ceased in December 1998 although she was subsequently granted one of two Tourist (Long Stay) visas thereafter. However, these visas were granted over 20 years ago and the Tribunal finds that they are not indicative of the visa applicant’s current circumstances, behaviour and attitude towards Australia’s migration system, nor is the claim (unsubstantiated by documentary evidence) that she had previously been eligible for a partner visa to Australia but did not take up this offer. This aspect is therefore given little weight.

    Living and employment circumstances

15. The Tribunal has considered the visa applicant’s living circumstances. It accepts based on the evidence that the visa applicant currently leases a property in Alexandria and that this lease began on 1 January 2022 and will end on 31 December 2027. It accepts that she paid the total amount of 750 EGP (equivalent to around $35)[1] which covers the entire period. The review applicant told the Tribunal that the amount was very low due to an old law, and that the new law was different.

    [1] >

    In terms of the visa applicant’s employment circumstances, the Tribunal heard from the visa applicant that she works at a shop selling goods for which she receives a commission. She said that she typically makes around 3,000 EGP-a-month (equivalent to around $142).[2] No documentary evidence was provided to substantiate this claim, and it is a new claim given that she was listed as “unemployed” in her application form from 8 April 2022. She said that the review applicant also sends her money for living expenses.

    [2] >

    The Tribunal has considered these circumstances. In relation to the visa applicant’s living circumstances, it finds that she will forego the ability to complete the last four years of her very favourable rental agreement, but also finds that she had paid a relatively small amount for that agreement in the first instance. In terms of her employment circumstances, which for present purposes it accepts, it finds that she has only recently begun to work and that this employment is supplemented by financial support from the review applicant. It finds that these circumstances would provide little incentive for the visa applicant to return, and they are accorded little weight

    Family circumstances

16. The Tribunal has considered the visa applicant’s family circumstances. In this regard, it accepts that she is divorced and accepts based on the testimony of the review applicant and visa applicant at hearing that this occurred in 2019. It accepts based on the information in front of it that she has two children who are aged [Ages]. It accepts based on their testimony at hearing that the visa applicant intends for these children to travel with her despite them not having applied for review in respect of their visa refusals. It accepts that she has two sisters in Australia – being the review applicant and another sister who lives in [Suburb]. Finally, it finds that her parents have both died.

17. The Tribunal has considered these circumstances. It finds that the fact of the visa applicant having most if not all of her family represents a major inducement for her to stay in Australia. This matter is given substantial weight of an adverse nature.

    Type of visa stream and potential for conversion to another visa class

18. The Tribunal has considered that the visa applicant has applied for a visitor visa in the Sponsored Family stream. This means that she is subject to two further mandatory conditions – being the “no further stay” condition 8503 and condition 8531 relating to not remaining in Australia after the end of her permitted stay. Furthermore, it notes that the “no further stay” condition means that she is unable to apply for further visas onshore unless she is able to have the condition waived. While this would ordinarily count very much in her favour, this condition does not apply to protection visas which are explicitly carved out.

19. The significance of this is that the Tribunal has real concerns that the visa applicant may be at risk of converting to a protection visa upon her arrival to Australia. In this regard, it notes that the review applicant told it that the visa applicant may have suffered family violence at the hands of her ex-spouse, something that the visa applicant confirmed herself in answering “yes” to a question from the Tribunal at hearing about whether her ex-spouse was abusive towards her and her children.

20. The Tribunal suggested to the review applicant that this may form the basis for a claim of a protection claim and would therefore be an inducement for the visa applicant to stay in Australia with her children and with the review applicant and her other sister. In response, the review applicant told it that she was not ready to sponsor anyone at the moment. She said that she had a good income and a very successful job but was not ready to pay money to have them stay. It put to her that a protection visa was cheap and the review applicant would not need to sponsor the visa applicant for the visa. The review applicant told it that she had never heard of a protection visa before and had not dealt with anything to do with immigration. She said that she had never applied for her mother to stay as a permanent resident, and her mother was visiting often.

21. The Tribunal has considered the review applicant’s response. On the issue of whether she was “ready” to sponsor the visa applicant, it finds that no such sponsorship is required for a protection visa. In terms of any financial support that the review applicant would need to provide to the visa applicant and her children, while it accepts that this support would be required during the initial visitor visa period, it does not accept that this arrangement would need to continue beyond that period when the visa applicant is granted a bridging visa with work rights. In relation to the claim by the review applicant that she has never applied for her mother to stay as a permanent resident despite her mother having visited often, it finds that even if this is true (and the Tribunal has no reason to believe that it is not) it is irrelevant in this matter where the visa applicant’s circumstances as a claimed victim of abuse are sufficiently different from those of the review applicant’s mother. Lastly, and dealing with the review applicant’s claim to be unfamiliar with aspects of Australia’s migration system, it finds this unlikely in circumstances where she has sponsored the visa applicant previously in 2019. In any case, the issue to be considered under cl.600.211 is about whether the visa applicant has a genuine intention to stay temporarily and not the review applicant. Therefore, the review applicant’s knowledge or otherwise of protection visas is largely irrelevant. As a result of the above findings, the Tribunal accords little weight to the review applicant’s response.

22. The Tribunal has lastly considered information from a statutory declaration dated 19 May 2022 and from the review applicant at hearing showing that she is willing to pay a security bond in respect of the visa applicant. It gives this information favourable weight.

    Conclusion

23. The Tribunal has considered and weighed the information in front of it and balanced this information against itself when assessing whether the visa applicant meets cl.600.211. While it accepts that the visa applicant complied with the conditions of her last substantive visa in 2019 and complied substantially with conditions of her visas before that and accepts that the review applicant is willing to provide a security bond in respect of the visa applicant, it gives more weight to other matters that would either act as an inducement for her to stay in Australia or that would provide little incentive for her return to Egypt. Among these are weak living and employment circumstances in Egypt, as well as the circumstance of having most of her family in Australia (either as existing residents in the case of her two sisters, or as intended travelling companions in the case of her two children).

24. 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

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

    David Crawshay
    Member