ALY (Migration)

[2017] AATA 704

ALY (Migration) [2017] AATA 704 (5 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MAGDY ABDELHAY DAWOUD ALY

VISA APPLICANT:  Mrs ZEINAB MOHAMED HASSANIN HUSSEIN KESHK

CASE NUMBER:  1621294

DIBP REFERENCE(S):  BCC2016/3947503

MEMBER:Tania Flood

DATE:5 May 2017

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 05 May 2017 at 2:16pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 – Genuine temporary stay – Immediate family in Egypt – No English language capacity – Secure local environment – Financial security

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 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 Immigration on 11 December 2016 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 23 November 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 she was not satisfied the applicant intends a genuine temporary visit to Australia.  

5. The review applicant appeared before the Tribunal on 2 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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

   BACKGROUND

8. The visa applicant was born on 5 December 1945 in Dakahliya, Egypt.  She is the mother of the review applicant.  She has two children and eight grandchildren, including the two children of her deceased son living in Egypt and a son and two grandchildren in Australia.   She has not previously visited Australia.

9. The review applicant is an Australian permanent resident.  He is married with two children born 5 February 2014 and 9 February 2015. He has been employed as a full-time Security Manager since 1 July 2014.

   TRIBUNAL HEARING

10. At the Tribunal hearing the review and visa applicant’s provided consistent evidence which is summarised below:

11. The review and visa applicants are from Mit Mahmoud in Mansoura Province, Dakahliya, Egypt. They are Muslim.

12. The visa applicant has a son and two grandchildren in Australia and a son, daughter and eight grandchildren in Egypt including the two children of her deceased son.

13. The review applicant is employed by a security company earning a gross average fortnightly sum of $1,999.

14. The visa applicant is in receipt of pensions belonging to her deceased husband and son and also receives an age pension in her own right.  Her combined pension payments total about 4,000 pounds per month.  In addition she has two pieces of agricultural land from which she derives additional income.

15. The visa applicant lives in her own home which she shares with her son and his family.  The children of her daughter and deceased son regularly spend time with her at the family home.

16. The visa applicant reports no health concerns and nor is she undergoing any medical treatment at present.

17. The visa applicant has only ever travelled to Saudi Arabia.  She would have preferred that the review applicant visit her in Egypt but as his work and family commitments do not allow this she has agreed to travel to Australia to meet her grandchildren.  She would want to stay in Australia for no longer than two months.

18. The visa applicant will return to Egypt at the end of her stay in Australia because that is where the majority of her family reside and where her deceased husband, son and grandchild are buried.   Further she is in a stable financial situation and being elderly and unable to speak English it would be impossible for her to live in Australia.

19. The visa applicant’s village is secure and there are no reported security incidents where she lives.  It is a safe community and she has good relations within her community.  When need be she travels to Mansoura but prefers to spend her time in the village.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

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

22. 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)).

23. The review applicant was granted a student visa (TU573) on 1 December 2008 and entered Australia on 1 January 2009.  He was granted a series of Bridging visas and on 7 July 2015 he was granted a Partner Visa (UK-820).  On 27 October 2016 he was granted a Partner Visa (BS-801).  He is currently a Permanent Resident. The visa applicant has never travelled to Australia.

24. In view of the above there is no adverse family migration history to consider.

25. 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.

26. The visa applicant is a 71 year old woman who does not work.  However, she has produced evidence which supports she is in receipt of her deceased husband and son’s pensions as well as her own age pension.  Further, she has two agricultural properties from which she derives an income.  Based on the review and visa applicant’s evidence at hearing the visa applicant is able to cover the cost of her own travel and living expenses while in Australia however she will be accommodated by her son.  Further, the evidence before the Tribunal indicates the review applicant is in stable employment and is in receipt of a regular income.  In view of the circumstances, and given the visa applicant’s age and the fact she speaks no English, the Tribunal is satisfied that she will not, and has no need to work in Australia for the period of her visit.  The Tribunal is also satisfied that she will not engage in study or training for the period of her visit.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if she visits Australia.

27. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia.

28. The Tribunal acknowledges the concerns of the Delegate regarding the visa applicant’s lack of financial ties in Egypt however the Tribunal has had the benefit of receiving additional information including evidence of her pensions, land holdings and bank savings.   The Tribunal acknowledges she is not in ongoing employment however based on the available evidence the visa applicant lives in her own home with her son and his children and in fact, is in a position to, and does provide financial support to her family in Egypt.  The Tribunal is satisfied the visa applicant would not need to remain in Australia beyond the term of her visa purely for financial reasons.

29. Based on the available evidence the majority of the visa applicant’s family reside in Egypt.  She has two children and eight grandchildren in Egypt.  She lives in the same house as her son and his three children and regularly sees her daughter and remaining five grandchildren in Egypt.  By contrast, the visa applicant has only her son and two grandchildren living in Australia.  In addition, in accordance with tradition the visa applicant has a weekly ritual of visiting the graves of her deceased husband, son and grandchild.  The Tribunal finds the visa applicant’s family ties in Egypt far outweigh the family ties she has in Australia.  The Tribunal considers the presence of family in her own country provides a strong incentive for her to return home at the end of a visit to Australia.

30. At the hearing the review and visa applicant’s gave consistent evidence about the proposed length of the visit.  The Tribunal accepts the visa applicant is intending to visit Australia for no longer than two months.  As she has not seen her son since late 2008 and has never met his children the Tribunal considers the proposed length of the visit is reasonable particularly given her age and the distant to be travelled.  The Tribunal does not find the proposed length of stay indicative of any intention to remain in Australia beyond the term of her visa. 

31. The Tribunal acknowledges recent reports of violent attacks carried out in parts of Egypt by extremist Islamic groups but based on the available evidence the rural village in which the visa applicant resides has been unaffected by such attacks.   Further, being an elderly widow the visa applicant spends the majority of her time in her home location.  There is nothing before the Tribunal to indicate the applicant is seeking refuge from an insecure living environment by remaining in Australia indefinitely.

32. At the hearing the review and visa applicant’s confirmed the visa applicant is in good health for her age and not currently undergoing any medical treatment.

33. The Tribunal notes and has also given weight to the fact the review applicant is willing to lodge a security sum of $5,000 to ensure compliance by the visa applicant of any visitor visa conditions. 

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

35. 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

36. 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.

    Tania Flood
    Member