Alnahdi (Migration)

[2023] AATA 2182

Alnahdi (Migration) [2023] AATA 2182 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Marei Alnahdi

VISA APPLICANT:  Mrs Maryam Ali S Alharaibi

CASE NUMBER:  2210842

HOME AFFAIRS REFERENCE(S):          BCC2022/1063210

MEMBER:Linda Holub

DATE:19 June 2023

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 June 2023 at 1:06pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visit husband– on-going and stable employment in home country – has complied with previous visa conditions – visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Home Affairs on 18 July 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 16 March 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 applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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 am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out.

5.    The review applicant appeared before the Tribunal on 6 June 2023 to give evidence and present arguments. I exercised my discretion to hold the hearing by video through the Microsoft Teams application as the review applicant resides in Adelaide and I am a Sydney-based Member. I determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6.    The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages

7.    The review applicant was not represented in relation to the review.

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

BACKGROUND

9.    The review applicant is the husband of the visa applicant. The review applicant was born in 1969 and is an Australian citizen by grant. Department records indicate the review applicant first arrived in Australia in October 1995 travelling on his Student (560) visa. From December 1995 until June 1997 the applicant remained onshore on a series of Student (560) visas with the last granted ceasing August 2000.

1. In August 2000 the review applicant commenced an application for a Combined Spouse (UK 820/BS 801) visa as the partner of an Australian citizen. In December 2000 he was granted a Partner (UK 820) visa. In October 2002 he was granted a Partner (BS 801) visa.  He became an Australian citizen by grant in July 2005.

2. Department records indicate the review applicant has made multiple trips offshore since being granted Australian citizenship. The review applicant departed Australia in September 2005 and returned April 2012. He again departed in August 2016 and returned December 2016. In July 2018 he departed returning September 2018. In July 2019 he departed Australia and did not return until August 2020. In September 2022 he departed, before returning to Australia in March 2023. He has remained onshore since this time.

3. In a written statement dated 22 May 2022 provided to the Department, the visa applicant stated she was married to, and living with the review applicant in Jeddah from 2009 until the review applicant had to leave Saudi for Australia in 2011. They have been living in two countries since. In 2014 the visa applicant spent a period of almost a year in Australia on a Partner visa. Her permanent residency in Australia was subsequently refused. Since 2018 they have travelled from their respective countries and they have spent time together in Indonesia, Malaysia and the UAE, but have not seen each other since 2020. She wishes she could stay with her husband permanently, but she has responsibilities in Saudi Arabia such as her job at the government hospital, the community and the care she provides for her grandmother.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband and to visit various places in South Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

3. 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)).

4. The visa applicant was born in Riyadh, Central Province, Saudi Arabia in 1970 and is a citizen of Saudi Arabia. She is married to the review applicant.

5. Department records indicate that the visa applicant first travelled to Australia in May 2012 travelling on a Tourist (subclass 676) visa that ceased 27 November 2013. The applicant departed on this visa in July 2012, before returning to Australia in August 2013. While onshore the applicant lodged an application for a Partner Combined (UK 820/BS 801) visa as the partner of the review applicant on 28 October 2013 and was granted an associated Bridging visa A. On 22 September 2014 the visa applicant was granted a Partner (UK 820) visa that would cease 27 March 2018. From 2014 to 2017 she departed and returned to Australia four times travelling on this visa. Departmental records indicate she complied with her visa conditions.

6. On 11 September 2017 the visa applicant departed on this visa and has remained offshore since that time. On 27 March 2018 the Department refused the applicant’s Partner (BS 801) visa. The applicant sought a review of the Departments decision at the Tribunal that was finalised as No Jurisdiction 30 April 2018.

7. On 22 May 2018 the visa applicant lodged an application for a Visitor (FA 600) visa. On 25 July 2018 the Department refused the application.

8. On 16 March 2022 the applicant lodged a further Visitor (FA 600) visa that was refused by the Department 18 July 2022. The applicant sought review of the Department’s decision at the Tribunal 27 July 2022, the decision that is currently under review.

9. 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 600.611(2):

   ·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.

Evidence provided by the review applicant

1. The review applicant stated he has a Master’s degree in Agricultural Science. He stated he was a researcher at university but now works in construction as a cleaner. He works casually at the moment.

2. I asked the review applicant about the unavoidable circumstance which meant he had to leave Saudi Arabia for Australia in 2011, referred to by the visa applicant in a statement she submitted. There was also reference to him being deported from Saudi Arabia. The review applicant stated that he had previously been married and had three children. After he and his former wife separated, he had full custody of the children. He stated his wife came back to Australia but that she wanted to see her children. In 2011 the Royal Saudi court ordered him to leave Saudi Arabia for good. He tried to appeal. He stated that subsequently there was a court case in Australia and his wife got custody of the children. He stated that he tried to apply many times for visit to enter Saudi Arabia but has always been refused. On one occasion in 2016 he was granted a visa but was refused entry into the country. He stated he tried to explain that he had been granted a visa, but they refused. He claimed he has tried to appeal these decisions, but they rejected his applications. He stated that he has evidence of his case in Saudi Arabia from the Department of Foreign Affairs because the embassy in Saudi Arabia was involved in his case.

3. The review applicant stated that the visa applicant used to come to visit him because he can’t visit her and they have also met overseas including in Turkey, Yemen, and the UAE. He stated that they can’t keep going like this.

4. The review applicant stated he shares a house with a friend but stated he would find another place if the visa applicant is granted a visa. He has no assets except his car.

5. The review applicant stated that the visa applicant lives with her grandmother, brother and four sisters. All her work siblings work.

6. It was claimed that the visa applicant has responsibility for caring for her grandmother. When asked why this is the case given her four sisters also live with the grandmother, the review applicant stated that she has experience in the health sector. The review applicant stated that the other siblings also help and in relation to her specific tasks, the Tribunal heard evidence that the visa applicant administers the medication and does some of the cooking and spends time with her grandmother. She also has this responsibility because she is the oldest.

7. The review applicant stated that the maximum period the visa applicant would stay in Australia is for two months. She would combine her annual leave with other holidays. They mainly want to spend time together, but they plan to do some travel together in South Australia and Victoria.

8. The Tribunal heard evidence that the visa applicant will pay for her airfare as she earns a good salary and as noted above the review applicant will try to get other accommodation as she will stay with him.

9. In relation to the incentives for the visa applicant to return to Saudi Arabia, the review applicant stated she has more incentives for her to live there than in Australia. He stated that is the reason she did not remain in Australia when she was granted the Partner (820) visa. He stated she is a citizen of Saudi Arabia and has been working in its Ministry of Health for 24 years. He stated she enjoys her well-paid job and her entire family lives there. The family have their own properties. He stated that when they applied for the Partner visa, what they understood is that it would enable her to come to Australia freely.

Evidence provided by the visa applicant

1. The visa applicant stated that she wants to come to Australia to see her husband. She stated that according to her annual leave she would have one to two months leave. In relation to the incentives for her to return to Saudi Arabia, she stated that her job with the Ministry of Health is the main reason, and additionally she cares for her grandmother and her younger sister.

2. The visa applicant stated that she lives with her sisters and brother. When asked why it is her who carries the major responsibility to look after her grandmother. She responded that she is eldest, and grandmother prefers her, and the others are busy with work, and she works in the health industry. The visa applicant cited examples of what her tasks are in relation to the care of her grandmother. She stated that she feeds her grandmother when she is home, she gives and manages her medication; takes her to the toilet and bathes her and while they are talking, she massages her. Her grandmother doesn’t have a case worker. When asked who feeds the grandmother in the day, she stated they divide it with the others and share the duties. When she is in Australia, her other sisters will do it for her.

3. Both the applicants stated that the visa applicant has had no problems in Saudi Arabia for any reason. The Tribunal was told that she will not undertake any work, study or training during her stay, although the visa applicant stated that if she has an opportunity to do any voluntary work, she would be happy to do so. She stated that if there is a No Work condition on her visa, she will of course abide by that.  

4. The visa applicant told the Tribunal that she misses her husband and wants to stay with her husband.

5. Upon the request of the review applicant the hearing was adjourned at 2.39 pm following evidence provided by the visa applicant and resumed at 2.42 pm.

6. When asked about their long-term plans the review applicant stated that if he gets the opportunity after he solves the issues, he will be close to his wife and his mother who also resides in Saudi Arabia. He keeps appealing the refusal decisions. In the meantime, he would like the visa applicant to come to Australia from time to time to visit him.

Issues and concerns discussed with the review applicant

1. The Tribunal was provided with statements from the parties’ joint bank account. The review applicant acknowledged that it has not been used as a joint account since the visa applicant departed Australia in 2014. I explained that I would give it no weight to the bank statement in forming a view as to whether or not the applicant genuinely intends to remain in Australia temporarily as I did not believe it is probative.

2. I asked the review applicant about other written evidence provided to the Tribunal and explained to him that it was not clear to me what the purpose of providing the evidence was: including photographs of the visa and review applicant, a photocopy of a membership card to a hotel in Dubai in the names of the visa and review applicants, Vodaphone records and untranslated logs of calls and text. He stated that they thought it would help prove their relationship. I told him that I accepted they are in a relationship, however that does not necessarily address the issue of the visa applicant’s genuine intention to remain in Australia temporarily. I explained that it suggests that the fact of their relationship raises concerns about her intentions.

3. In relation to the claims of the visa applicant’s role in the care of her grandmother being an incentive for her to return to Saudi Arabia, I put it to the review applicant that I did not find the claim convincing given the other family members reside with the grandmother and the emphasis put on the importance of the visa applicant’s job. In his response, the review applicant referred to the cultural expectations placed on the eldest daughter, and also acknowledged it is not the main incentive for her return. He stated that she has six to eight weeks of leave, and she has worked at the Health Ministry for 24 years. He stated that if she leaves her job, she will get nothing. Her stated she has a good, permanent, government job and does not want to sacrifice that. The visa applicant does not have plans to remain in Australia. He stated that she could have done so previously and referred to her previous record of complying with her visa conditions.

4. I put to the review applicant, that it would appear that having a husband who is in Australia and who is unable to enter the country in which she resides, is perhaps a significant incentive for the visa applicant to remain in Australia. He stated that although they want to spend time together, the visa applicant has strong incentives to return to Saudi Arabia, including her job and family. She wants to visit him because he can’t go back, and it is very difficult for them to meet elsewhere on an ongoing basis.

Post hearing submissions

1. Following the hearing, the review applicant provided a copy of documents provided to him by the Department of Foreign Affairs and Trade under a Freedom of Information request. The documents are copies of letters from the Australian embassy in Saudi Arabia to the Ministry of Foreign Affairs of the Kingdom of Saudi Arabia regarding the review applicant’s detention and deportation and also relates to his children. Additionally, Department file notes regarding his situation were submitted. The information provides no useful insights into why he was detained or deported nor does it provide probative evidence in regard to the visa applicant’s intentions.

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

Findings

1. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for six to eight weeks for the purpose of visiting her husband. The Tribunal accepts that she will fund the cost of her airfare and that she will stay with the review applicant while she is in Australia.

2. The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia on the basis that she has on-going and stable employment in her home country.

3. The Tribunal has some concerns regarding the incentives for the visa applicant to remain in Australia given her husband resides here. While the Tribunal did not put significant weight on the visa applicant’s carer’s role, the Tribunal is prepared to accept that the visa applicant’s job and her family provide sufficient incentives for her to return to her country of residence at the end of her permitted stay in Australia. The Tribunal did place greater weight on the visa applicant’s migration history. In this regard, the Tribunal notes that she has complied with previous visa conditions. Condition 8503 refers to entitlement and does not require compliance. On balance, the Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

4. 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

1. 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.

Linda Holub
Member