Abdelzaher (Migration)

[2024] AATA 3951

Abdelzaher (Migration) [2024] AATA 3951 (19 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammed Abdelzaher

VISA APPLICANT:  Mrs Fatima Mirghani Ahmed Ali

REPRESENTATIVE:  Mr Kris Ahn

CASE NUMBER:  2427291

HOME AFFAIRS REFERENCE(S):          BCC2024/3501567

MEMBER:Moira Brophy

DATE:19 September 2024

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 19 September 2024 at 11:03am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s positive migration history – visa applicant visiting her partner – ongoing training program in Qatar – desire for further visits – balance of her family in Qatar – offer of security bond – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.612; Schedule 8 Condition 8101

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 5 August 2024 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 2 July 2024. 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 (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.

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 genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 18 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Ms Fatima Mirghani Ahmed Ali.

6. The review applicant was represented in relation to the review.

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

   BACKGROUND

8. The visa applicant is a 33-year-old citizen of Sudan who was born in Saudi Arabia. She is presently living in Qatar with her parents and younger brother. In her application for a Tourist visa, she requested a visa for up to 12 months for a family visit; she is a medical practitioner and is presently working in Qatar.

9. The review applicant, Mr Mohammed Abdelzaher, is the husband of the visa applicant. He is an Australian citizen.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting her partner. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

12. 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)).

13. At the time of hearing the visa applicant told the Tribunal that she had previously travelled to Qatar, Turkey, UAE, Spain, Germany, Malaysia, France, Netherlands, Luxemburg, Tokyo, Kula Lumpur, Egypt, and Switzerland. She had always travelled within her permitted visa time. The only country to refuse her a visa is Australia.

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. In considering whether the visa applicant would comply with these conditions, the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit her partner. The review applicant said he has a demanding job, and he is finding it difficult to conduct his business and spend long periods of time with his partner. The visa applicant is in a fellowship training program in Qatar and her visa there is sponsored by her employer. While having been in a relationship since 2022 and having married in November 2023 the couple have got together whenever possible, most recently in Malaysia. An examination of the review applicant’s movement records was corroborative of this. It is very important to them that they be able to celebrate their first wedding anniversary together. The Tribunal accepts it is the intention of the visa applicant to visit her partner, to spend time with him and for them to explore Australia together. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

17. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed with the parties the length and purpose of the visa applicant’s proposed stay in Australia. The review applicant gave evidence that he last saw the visa applicant in August 2024 when they spent time together in Malaysia, they have only spent limited time together since they married in November 2023. The visa applicant stated she wanted to spend time with the review applicant and to be able to see where he lived and worked. They intended to make Australia their home when she completed her studies. While the time apart is difficult the visa applicant said if she completed her fellowship she would be qualified as a medical specialist and that would assist her in gaining employment in Australia.

18. The review applicant gave evidence that the visa applicant wants to come to Australia for 1 month. That was the maximum amount of leave she could take at this time. The visa applicant told the Tribunal that she would stay for one month at the longest. The parties had discussed lodging an application for a Partner visa and were intending to lodge in 2025. They were trying to coordinate their application with her participation in her fellowship training program. They were both acutely aware that any non-compliance if their present application was granted would adversely impact on any future application. The visa applicant said she lives with her parents and their residence in Qatar was attached to her sponsorship for the fellowship training program. She was conscious of her caring responsibilities to her parents and the ramifications for them if she did not comply with the conditions attached to any visa she may be granted.  

19. The Tribunal asked the review applicant what incentives the visa applicant has to return to the Qatar the end of her permitted stay in Australia. The Tribunal was mindful at the time of the delegate’s decision he had assessed the visa applicant as being from Sudan but the reality was, she had not lived there for some five years. Prior to being accepted into the fellowship program in Qatar she had resided in Turkey for a year.

20. The review applicant responded that the visa applicant’s incentives to return are her family, both immediate and extended, and the commitment she had made to her work. The review applicant told the Tribunal the fellowship program the visa applicant was accepted into in Qatar was quite prestigious and highly sought after. If the visa applicant were to leave the program, she would be required to repay 30% of the costs of the program. He said that in addition to these responsibilities, the visa applicant was not likely to do anything that would jeopardize any future Partner visa application. The visa applicant does not have family in Australia. The balance of her family is Qatar. When asked what would happen if the visa applicant came here, changes her mind, and does not want to return to Qatar, the review applicant responded that the visa applicant well understood the ramifications of not complying with a country’s visa requirements. The visa applicant would return to her home as she understood that was what the law required of her and a failure to abide by that would jeopardise her fellowship program and any future Partner visa application. She has too much to lose if she does not comply.

21. The Tribunal has considered the evidence given by the review applicant. The Tribunal appreciates he wants to share this special milestone with his partner. They were very aware that a failure to abide by any visa conditions imposed would have ramifications for any future visa applications they may make.

22. When asked if he was prepared to lodge a security bond, the review applicant said he was, and he was prepared to lodge whatever amount the department deemed appropriate.

23. The Tribunal accepts that the visa applicant has the financial resources to pay for her trip to Australia. The Tribunal accepts that she does not intend to work, study, or undertake any training in Australia.

24. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that his partner is able to visit him in Australia and that he will ensure that the visa applicant complies with the conditions of her visa so as not to jeopardize prospects of obtaining any visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of her visa.

25. 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

26. 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