Abdelghany (Migration)

[2023] AATA 4338

Abdelghany (Migration) [2023] AATA 4338 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Ayman Abdelghany

VISA APPLICANTS:  Mr Mahmood Awes
Mrs Samia Hussein

CASE NUMBER:  2216256

HOME AFFAIRS REFERENCE(S):          BCC2022/3258745

MEMBER:Scott Clarey

DATE:18 December 2023

PLACE OF DECISION:  Melbourne

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 18 December at 3:03pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visits – strong family and social connections to home country – property investments in home country – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 11 October 2022 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 16 August 2022. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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 review applicant (and a witness, the review applicant’s brother) appeared before the Tribunal on 15 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted, having regard to whether the applicants have complied substantially with the conditions to which the last substantive visas, or any subsequent bridging visas, held by the visa applicants were subject; whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas would be subject; and any other relevant matter.

7. In the present case, the visa applicants seek the visas for the purposes of visiting the review applicant (the visa applicants are the parents of the review applicant) and his family, including his wife and two children. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

8. In assessing the issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file as well as the oral evidence given at the hearing.

9. In considering whether the visa applicants genuinely intend to stay temporarily in Australia for this purpose, the Tribunal must consider whether they have complied substantially with the conditions of the last substantive visas held, or any subsequent bridging visa (cl.600.211(a)).

10. The review applicant gave oral evidence that both review applicants had both previously visited Australia in 2014.  I note that the delegate’s decision record does not raise any issues relating to previous visa non-compliance by the visa applicants. The evidence before the Tribunal is that the visa applicants did comply with the conditions attached to their visas, including departing Australia before the visas ceased. The Tribunal accepts this and gives strong weight to the visa applicants’ previous travel history to Australia and their compliance with immigration conditions.

11. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas would be subject (cl.600.211(b)). The conditions to which visas 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.

12. I discussed each of these conditions with the review applicant at the hearing. The review applicant told the Tribunal that the visa applicants would comply with all conditions. He told the Tribunal that the visa applicants had no intention of remaining in Australia or working or studying here during the period of the permitted stay. The review applicant stated that he intended to apply to sponsor other family members to visit Australia again in the future. The review applicant said that both he and the visa applicants knew that any non-compliance from the visa applicants would likely all but guarantee visa issues for any future planned travel from other family members to Australia, which he stressed was a situation he was very keen to avoid. The Tribunal found the review applicant to be candid and credible and therefore accepts his oral evidence.

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

14. At the hearing, the Tribunal asked the review applicant questions relating to various factors that would act as an incentive for the visa applicants to remain in Australia after the proposed stay and those factors that would act as an incentive for them to return to Egypt.

15. The Tribunal asked the review applicant why his parents had applied for the visitor visas to visit Australia. He said that his parents simply wanted to come to Australia for a holiday to visit him and his family, including his wife and children, and their other son who also lvied here. The review applicant said that his parents would stay with him at his home for the duration of their trip.

16. When asked about his parents’ life in Egypt, the review applicant said that his parents had very strong connections to their Egypt based family, including nine siblings who they lived near. The review applicant said that his parents had strong social and cultural ties to Egypt. The review applicant told the Tribunal that his father was a formerly a doctor and has since retired very comfortably in Egypt. He said his parents have a property portfolio there and significant cash deposits. They said they have never had any issues with the government. They have two sons in Australia and two sons living in Kuwait and Oman respectively, who the visit regularly. The review applicant said his parents lived a good, comfortable life in Egypt and had no reason to not want to return there. The Tribunal accepts this.

17. The visa applicants were available and willing to provide oral evidence by telephone from Egypt but, having heard the review applicant’s oral evidence and reviewing the evidence before the Tribunal, the Tribunal did not consider it to be necessary.

    Findings

18. After considering all the evidence before it, on balance the Tribunal considers that factors such as the presence of the visa applicants’ extended family in Egypt, their well-established life in there, including their property investments, form stronger incentives for them to return to Egypt than the incentive for them to remain in Australia. The Tribunal also gives strong weight to the past visa compliance of both visa applicants who previously visited Australia in 2014, and the incentive for compliance that the review applicant discussed at the hearing, given his intention to sponsor other family members to visit him in the future. The Tribunal accepts that the visa applicants have a genuine intent to stay temporarily in Australia to visit the review applicant and other family members here. The Tribunal accepts that the visa applicants intend to return to Egypt within the specified timeframe.

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.

    Scott Clarey
    Member