Abbas (Migration)

[2020] AATA 4343

Abbas (Migration) [2020] AATA 4343 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mustapha Abbas

VISA APPLICANT:  Mrs Gumana Abdullrahman

CASE NUMBER:  1935390

HOME AFFAIRS REFERENCE(S):          BCC2019/4599754

MEMBER:Moira Brophy

DATE:14 October 2020

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 14 October 2020 at 12:34pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – validly married – visa and travel history – previous application for partner visa onshore while on tourist visa refused and refusal affirmed – overstay by three days – compliant travel to other countries – children and employment in home country – review applicant’s physical health and offer of security bond from small savings – intention to apply for partner visa offshore – incentive not to jeopardise that application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 11 October 2019 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 13 September 2019. 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 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 had a genuine intention to stay temporarily in Australia.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

6. The review applicant, Mr Mustapha Abbas, appeared before the Tribunal on 21 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mrs Gumana Abdullrahman. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

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

   Background

9. The visa applicant is a 50-year-old female who was born in Iraq. At the time of application, she was residing in Germany with her son who was a student there. She is a citizen of Italy and was in Germany on a Visitor visa. The visa applicant stated she was employed in a bakery, Pizza Hot and Fresh, and she had been employed there since 1 June 2018. The visa applicant has three sons and one daughter who would not be accompanying her. The visa applicant stated she wished to visit Australia for a period of up to three months from 25 September 2019 to 25 October 2019.

10. The visa applicant had previously visited Australia having been granted a Tourist (Subclass 651) visa on 5 September 2012. She arrived in Australia on 23 November 2012. She departed Australia on 22 February 2013 and returned on 11 March 2013 with her four children. On 11 June 2013 she lodged a Partner (Subclass 820) visa on the grounds of being in a relationship with Mr Mustapha Abbas, the sponsor in the present application. The visa applicant and Mr Abbas had married on 11 May 2013. The delegate refused the Partner visa application and review was sought at the Administrative Appeals Tribunal. The Tribunal affirmed the decision of the delegate on 13 January 2016. The visa applicant departed Australia on 12 May 2016.

11. Prior to the hearing, the review applicant provided the following to the Tribunal:

    ·Copy of the Marriage Certificate of the review applicant and the visa applicant

    ·Photographs

    ·WhatsApp Chat records

    ·Western Union receipts

    ·Letter from visa applicant’s employer verifying leave entitlements

    ·Hospital records relating to the review applicant

    ·Submissions

    CONSIDERATION OF CLAIMS AND EVIDENCE

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 visiting her husband. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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. The review applicant told the Tribunal the visa applicant was born in Iraq, was a citizen of Italy and was currently living in Germany. She had visited Australia in 2013 and had lived here until 2016. He had travelled to Germany in 2017 where they spent time together and they also travelled to Lebanon. He said she had not been refused a visa by any country and that she had always complied with the terms of her visa. When specifically asked if she had overstayed her visa in Australia, he said she had by three days. It had been an unintentional error and she had written a letter of apology to the Department.

16. The visa applicant told the Tribunal the only country to ever refuse her a visa was Australia.

17. On her application, the visa applicant stated she wanted to visit Australia for a period of up to three months. Her planned arrival was 25 September 2019 and her planned departure was 25 October 2019. At the time of hearing the review applicant said she would come for up to three months and the visa applicant said she would come for two to three months only.

18. 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.

19. The Tribunal discussed with the visa applicant how she would arrange her employment during her proposed absence. She told the Tribunal she had arranged a period of up to three months leave with her employer. The Tribunal is concerned that while the visa applicant is employed and earning an income in Germany her position would not be an incentive to return. Severance of this tie could occur with a minimum of difficulty and her professional skill set would be portable.

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

21. In assessing intention, the Tribunal was mindful of the evidence given by the review applicant when asked if he would be prepared to post a security bond and if so for what amount. He was not hesitant in answering he would be prepared to post a bond of $5,000 to $10,000. The Tribunal noted his earlier evidence as to the paucity of his savings. The Tribunal has taken this into account.

22. The Tribunal was mindful of the evidence given by the review applicant as to his circumstances. He resides alone in a rented three-bedroom property for which he pays $350 per week rent. He is not in paid employment. His last paid work was as a taxi driver in 2011. He is in receipt of newstart. His income is $1262 per fortnight. It was put to him that amount reflected the temporary increase in payment because of COVID-19 and was not his ongoing rate. The review applicant stated his rate prior to COVID-19 was $728 per fortnight.  The Tribunal noted his rate of payment was only $30 more per fortnight than his rent. The review applicant agreed and said his situation was very difficult and he often had to borrow money to survive.

23. The visa applicant gave evidence she lives in Germany in a rented home with her four children. She said she had lived in Germany for some 11 years. She works six days a week as a pizza chef. The applicant said her children and her work would be her incentive to return at the end of her stay in Australia. The Tribunal put to her that her past migration history was indicative of a person who wanted to stay in Australia long term and that she had previously entered Australia on a Visitor visa and then sought to change her immigration status while onshore. She has one son who has returned to Australia on a Student visa. The Tribunal put to the visa applicant that it was difficult to conceive her work and children would be a stronger incentive now especially given her husband was in Australia. The visa applicant said this was now about her having time to nurse her husband back to health and to assist him put in place systems to allow him to manage better. It was a different situation now.

24. The Tribunal also discussed with the review applicant its concerns that the visa applicant would not return to Germany at the end of her stay if the visa was granted. The Tribunal put to the review applicant that the visa applicant had previously entered Australia on a temporary visa and had overstayed this visa. The review applicant said she had only overstayed three days and that had been as a result of being given wrong advice by the migration agent. It had been an unintentional error and the visa applicant had expressed her apologies for that error. The cost of the review applicant travelling to Germany was prohibitive and his present health was not conducive to his flying, so allowing the visa applicant to come to Australia was the only way he could see his wife.

25. The Tribunal discussed with the review applicant the concerns of the Tribunal that this was really an application to obtain a migration outcome that allowed her and her partner to be together in Australia. The review applicant stated the visa applicant would return home because of her children and because she recognised that if she did not comply with her visa obligations now it would be very difficult for her to obtain a permanent visa. The review applicant told the Tribunal they intended to lodge an application for a Partner offshore visa (Subclass 309).

26. The Tribunal has carefully considered the decision and has taken into account the visa applicant’s personal profile, the circumstances of the review applicant, the fact he has not seen his wife for some time and that because of his health and his finances he is not able to travel. The Tribunal has also taken into account the previous adverse migration history given the visa applicant entered Australia on a Visitor visa and then sought to change her status onshore.  Given the evidence the visa applicant intends to lodge an application for a Partner offshore visa (Subclass 309) the Tribunal was persuaded the visa applicant would comply with the conditions of any visa granted so as not to jeopardise the granting of that application.

27. 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

28. 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.

    Moira Brophy
    Member