Elbishry (Migration)

[2022] AATA 3319

Elbishry (Migration) [2022] AATA 3319 (29 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Omar Ahmed Seifeldin Abdelhamid Elbishry

CASE NUMBER:  2105579

HOME AFFAIRS REFERENCE(S):          BCC2017/1328139

MEMBER:Naomi Schmitz

DATE:29 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa

Statement made on 29 August 2022 at 10:34am

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – member of the family unit – substantially reliant – incapacitated for work – no substantial visa at the time of application – recognition of professional qualifications process – marriage to an Australian citizen – multiple visa applications – relationship ceased – decision under review affirmed          

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2
Migration Act 1958, ss 5(1), 57, 65, 359, 363, 379
Migration Regulations 1994, Schedule 2, cl 461.212; Schedule 4, Public Interest Criterion 4001; rr 1.03, 1.05, 1.12, 1.13

CASES

Hasran v MIAC [2010] FCAFC 40     

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 14 April 2021 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 4 April 2017.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl. 461.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).

4. On 29 April 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided the Tribunal with a copy of the delegate’s decision record.

5. On 14 June 2022 the Tribunal wrote to the applicant and requested under s.359(2) of the Act that the applicant provide the Tribunal with information to address the following:

   Information that shows you were (at the time of application) and still are (at the time of decision) wholly or substantially reliant on Ahmed Seif El Din El-Bishry for financial support because you were and continue to be incapacitated for work due to the total or partial loss of bodily or mental functions

6. The request to provide information was sent to the last address provided in connection with the review[1] and the applicant was advised that if the information was not provided in writing by 28 June 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments: s.360(3) of the Act.

   [1] Section 379A(5)(d) of the Migration Act 1958 (Cth)

7. On 17 June 2022 the Tribunal invited the applicant to appear at a hearing commencing at 9:30am on 6 July 2022. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

8. The applicant did not provide information pursuant to s.359(2) within the prescribed period and no extension was requested or granted. In these circumstances s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear.[2] The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

   [2] Hasran v MIAC [2010] FCAFC 40

9. On 29 June 2022 the hearing listed on 6 July 2022 was cancelled and the applicant was notified of the cancellation of the hearing by email.[3]

   [3] Email sent at 1:45pm on 29 June 2022 notifying the applicant of the hearing cancellation

10. The Tribunal notes up until the time of decision the applicant did not provide any updated material on the matters the applicant might have wished to rely on in respect of why the Tribunal should be satisfied that the applicant met cl.461.212.

11. On 29 June 2022 at 11:04am the Tribunal sent an SMS hearing reminder to a mobile phone number provided by the applicant.[4] Subsequently on 29 June 2022 between 2:00pm and 2:40pm a Tribunal Officer (erroneously) conducted a successful Microsoft Teams test dial with the applicant. During the test dial the applicant provided a new mobile contact number and email address which the Tribunal noted on its records. The applicant stated the previous phone number belonged to his father, who would give evidence at the hearing. The applicant also confirmed a representative would attend the hearing. The applicant was advised to file a completed MR5 form which was never received by the Tribunal.[5]

    [4] Tribunal Case Note Number 2

    [5] Tribunal Case Note Number 3

12. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), using the contact information provided by the applicant. It is the applicant’s responsibility to keep his contact details updated. Further, there is no evidence to suggest that the applicant did not receive any of the Tribunal’s correspondence. To the contrary, the applicant confirmed the phone number originally used on the review belonged to his father who he had been in contact with.[6] Of significance, the applicant has not filed any updated information to support his application of review since 29 April 2021, approximately one year and four months ago, a significant lapse of time. This is also significant given the applicant’s oral assertions to the Department via telephone on 2 October 2018, approximately four years ago, where he claimed he would provide medical evidence in support of his application of review.[7] The Tribunal does not consider it is required to make the applicant’s claims for him. The Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[8] In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal. [9]

    [6] Ibid

    [7] Delegate’s decision record

    [8] s.2A of the Administrative Appeals Tribunal Act 1975 (Cth)

    [9] s.363B [Part 5] of the Migration Act 1958 (Cth)

13. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant satisfies cl. 461.212. 

15. As the primary applicant at the time of application the applicant must satisfy cl. 461.212 of the Regulations.

16. Clause 461.212 stipulates the following:

    (1)  The applicant meets the requirements of subclause (2), (3) or (4).

    (2)  An applicant meets the requirements of this subclause if the applicant is a member of the family unit of: 

    (a)  a person, other than an eligible New Zealand citizen, who is in Australia as the holder of a Subclass 444 (Special Category) visa; or 

    (b)  a person, other than an eligible New Zealand citizen, who: 

    (i)  is outside Australia; and 

    (ii)  will be accompanying the applicant to Australia; and 

    (iii)  will, on entry, be the holder of a special category visa.

    (3)  An applicant meets the requirements of this subclause if the applicant: 

    (a)  either: 

    (i)  is in Australia as the holder of a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa; or 

    (ii)  is not the holder of a substantive visa and the last substantive visa held by the applicant was a Subclass 461 visa; and 

    (b)  is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and 

    (c)  has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).

    (4)  An applicant meets the requirements of this subclause if the applicant: 

    (a)  is outside Australia; and 

    (b)  either: 

    (i)  the applicant was lawfully present in Australia as the holder of a Subclass 461 visa for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa; or 

    (ii)  the Minister is satisfied that the applicant: 

    (A)  has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and 

    (B)  has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence; and 

    (c)  on last departure from Australia was a holder of a Subclass 461 visa; and 

    (d)  is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and 

    (e)  has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).

17. Subclause 461.212(1) has the effect that the applicant must meet the requirements of subclause (2), (3) or (4).

18. Regulation 1.03 states that member of the family unit has the meaning set out in regulation 1.12.

19. Regulation 1.12 Member of the family unit

    (1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

    (2) A person is a member of the family unit of another person (the family head) if the person:

    (a) is a spouse or de facto partner of the family head; or

    (b) is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:

    (i) has not turned 18; or

    (ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c) is a dependent child of a person who meets the conditions in paragraph (b). This subregulation has effect subject to the later subregulations of this regulation.

20. ‘Dependent’ pursuant to regulation 1.05A(1)(b) stipulates the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

21. Pursuant to regulation 1.03, a ‘dependent child’, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a

    child or step-child who:

    (a) has not turned 18; or

    (b) has turned 18 and:

    (i) is dependent on that person; or

    (ii) is incapacitated for work due to the total or partial loss of the child’s or step-child's bodily or mental functions.

22. The visa applicant lodged an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa on 4 April 2017 on the grounds of being a member of the family unit of a New Zealand citizen, Mr Ahmed Seif El Din Elbishry, the applicant’s father, who at the time of application and decision continues to be the holder of a TY-444 visa.

    Applicant’s migration history

23. The delegate’s decision[10] summarised the applicant’s visa/immigration history as follows:

    [10] Delegate’s decision record

24. The applicant first arrived in Australia on 13 September 2007, as the holder of a Tourist (TR676) visa valid to 31 December 2007, and departed on 17 September 2007. The applicant visited Australia six more times as the holder of a Tourist (TR676) / Visitor (FA600) visa holder between 10 September 2008 and 25 January 2016. On 31 January 2016, the applicant arrived in Australia as the holder of a Visitor (FA600) visa valid to 30 April 2016. On 30 April 2016, the applicant’s Visitor (FA600) visa ceased.

25. On 30 April 2016, the applicant lodged an onshore Temporary Work (Skilled) (UC457) visa application associated with the prospective sponsoring employer, BISHRY INTERNATIONAL INVESTMENTS PTY LTD, for the position of Director of Medical Services. The applicant was granted an associated Bridging A visa. On 1 August 2016, the employer nomination was refused for the prospective sponsoring employer, BISHRY INTERNATIONAL INVESTMENTS PTY LTD.

26. On 5 September 2016, the applicant lodged a second prospective employer sponsorship for BISHRY INTERNATIONAL INVESTMENTS PTY LTD a Temporary Work (Skilled) (UC457) visa application for the position of Director of Medical Services. On 26 October 2016, the employer nomination was refused for the prospective sponsoring employer, BISHRY INTERNATIONAL INVESTMENTS PTY LTD.

27. On 24 November 2016, the applicant lodged a third prospective employer sponsorship for THE TRUSTEE FOR K P ENTERPRISES TRUST a Temporary Work (Skilled) (UC457) visa application for the position of General Practitioner.

28. On 4 April 2017, the applicant lodged an onshore application for a New Zealand Citizen Family Relationship (UP461) visa application on the basis of being the dependent family member of a New Zealand citizen, namely the applicant’s father. The applicant was granted an associated Bridging C visa.

29. On 3 May 2017, the employer nomination was refused for the prospective sponsoring employer, THE TRUSTEE FOR K P ENTERPRISES TRUST.

30. On 5 June 2017, the applicant withdrew his onshore Temporary Work (Skilled) (UC457) visa application. The applicant is currently the holder of a Bridging visa C.

    Information provided by the applicant

31. The delegate noted when the applicant lodged his application he declared the following education and qualifications:[11]

    a.03/1992 – 06/2003 – Attended the German school, Deutsche Evangelische Oberschule in Cairo;

    b.09/2003 – 06/2005 – Attended Dar El Tarbiah American School in Cairo and completed a High School Degree;

    c.10/2005 – 08/2012 – Attended Misr University for Science and Technology, completing a Bachelor of Medicine and Bachelor of Surgery degree; and

    d.10/2012 – 09/2013 - Completed medical internship at Ain Shams University Hospital, Cairo.

    [11] Ibid and Departmental File: BCC20171328139

32. In support of the applicant’s education, qualification and occupation claims the applicant provided the following evidence:

    a.Bachelor of Medicine and Bachelor of Surgery graduation certificate issued 5 November 2012, by Misr University for Science and Technology;

    b.Bachelor Degree of Medicine and Surgery certificate issued on 1 December 2013, by Misr University for Science and Technology; and  

    c.Internship completion certificate issued by Ain Shams University Hospitals.

    CONSIDERATION OF CLAIMS

33. The issue in the present case is whether the applicant is, at the time of application and at the time of this decision a member of the family unit of another a person who is in Australia as the holder of a Subclass 444 (Special Category) visa. In this case the applicant alleges he is a member of the family unit of his father who at the time of application and decision is the holder of a Subclass 444 (Special Category) visa.

34. At the time of application, the applicant was aged 27 years of age and therefore already turned 23 years. At the time of decision, the applicant is aged 34 years. The applicant is therefore required to demonstrate that he is dependent on the family head due to being incapacitated for work due to the total or partial loss of his bodily or mental functions. At the time of application, he did not provide any medical evidence in support of his application.

35. The Tribunal has carefully reviewed the departmental file and is satisfied that the Department accorded the applicant procedural fairness. The Tribunal notes that the Department sent a s.57 natural justice letter dated 11 September 2018 to the applicant’s two previously appointed migration agents, namely Mr David Wayne Hadley and Ms Sharon Harris. The natural justice letter provided the applicant with a further opportunity to comment or provide further medical information as to why the applicant satisfies the definition of a member of the family unit.

36. On 27 September 2018 the Department received notification from the appointed migration agent that they ceased to act. Later, on 27 September 2018 the applicant notified the Department of the same.[12]

    [12] Ibid

37. On 2 October 2018, the applicant contacted the Department by telephone and claimed he had not been provided with the natural justice letter from the applicant’s two previous appointed migration agents. The Department advised the applicant to contact his last appointed migration agent to obtain a copy of the letter and it was explained to the applicant that the migration agent had an obligation to provide the applicant with the letter. It was also explained the content of the letter and the timeframe to provide a response. The applicant claimed he did not understand the matter of concern affecting his application and the applicant was provided with an explanation of the prescribed requirements and the definition of member of the family unit and how he is affected by this definition.

38. During the applicant’s telephone call to the Department he volunteered the following information:

    a.The applicant claimed to have a medical condition – a gastric ulcer. When questioned if this prevented the applicant from being able to work the applicant responded he would have to consult with his doctor.

    b.The applicant confirmed he is studying to have his medical qualifications recognised in Australia to enable him to work as a doctor in Australia.

    c.It was drawn to the applicant’s attention that his ability to obtain medical qualifications and current efforts to obtain recognition of his qualifications with the view to working as a doctor in Australia indicated that the applicant is not incapacitated for work either physically or mentally.

    d.In response the applicant claimed to have a mental condition, Attention Deficit Disorder (ADD).

    e.It was noted to the applicant that his ADD had not prevented him from studying, qualifying and working as a doctor in Egypt during his internship and therefore did not appear to be a condition that incapacitates him for work. The applicant responded he would have to consult with his doctor on this matter.

    f.The applicant confirmed that if granted a visa that permitted him to live and work in Australia and his qualifications were recognised, he would seek employment and work.

    g.On the basis of the information provided during the telephone call, the applicant was advised that there is no evidence of any partial or total loss of physical or mental wellbeing that incapacitates the applicant to work and therefore the applicant did not appear to have grounds to satisfy the member of the family unit definition.

    h.In response the applicant stated he had married an Australian woman in 2017. The applicant refused to provide further details regarding the woman’s name, address or timeline details with regard to the relationship.

    i.On the basis of this information, the applicant was advised that this meant the applicant had started his own family unit and could not be the member of the family unit of his New Zealand citizen father, even if he were medically incapacitated for work. On receiving this advice from the Department, the applicant responded that the marriage was only a religious marriage and not a lawfully recognised one and that she and the applicant do not live together, they only spend time together on weekends and so the applicant had no evidence of his relationship but intended to start collating evidence with the view of lodging a partner visa application.

    FINDINGS and REASONS

1. The Tribunal has carefully considered the totality of the evidence. Despite multiple requests and opportunities by the Department and Tribunal, the applicant has not provided any current or other relevant medical evidence which demonstrates that he is dependent on the family head because he is incapacitated for work due to the total or partial loss of his bodily or mental functions. At the time of application, the applicant did not provide any medical evidence in support of his application. The only documents that were provided were identity documents showing the applicant’s relationship to his father. Approximately five years and six months have passed since the applicant lodged his visa application and one year and four months since the applicant filed his application for review and the applicant’s case has not enhanced and he has not filed any medical evidence in support of his claims.

2. The Tribunal has also had regard to the applicant’s migration history, including three applications for temporary working visas, including two for the position of Director of Medical Services and one for the position of a General Practitioner. Such visa applications are incongruent with a person who is incapacitated for work. This is further supported by the applicant’s education history and various qualifications, where he has attended tertiary institutions, undertaken a medical internship and obtained various bachelor degrees in science and medicine in Egypt. Since his arrival in Australia he has then worked towards having these qualifications recognised in Australia. Such studies and efforts are inconsistent with the visa applicant being incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions.  

3. Further, the Tribunal has considered the applicant’s admission to the department where he stated that he intended to work once his qualifications were recognised and registered in Australia and his visa conditions permit him to work. These statements undermine the applicant’s claims that he is incapacitated for work. The Tribunal has also had regard to the applicant’s varying responses outlined in paragraph [38] above and does not consider the applicant’s evidence to be reliable or credible.

4. The Tribunal has not considered the applicant’s claims of a partner relationship due to having insufficient information.

5. Overall, the Tribunal considers the paucity of medical evidence concerning the applicant’s incapacity to work, in addition to his migration history, education and qualifications and representations that he intends to work once permitted, indicates that the applicant does not satisfy the definition of member of the family unit as set out in Regulation 1.13 of Schedule 2 of the Regulations and therefore the Tribunal is not satisfied that the applicant meets cl.461.212(2).

6. As the applicant was in Australia at the time of application and has not previously been the holder of a Subclass 461 visa, the applicant cannot meet cl. 421.212 (3) and (4).

7. As the applicant does not meet the requirements for subclause 461.212 (2), (3) or (4), the applicant therefore does do not meet the requirements of subclause 461.212 (1).  Consequently, the applicant does not meet clause 461.212.

8. As the applicant does not meet clause 461.212 of the Regulations, the applicant does not meet the criteria for the grant of a New Zealand Citizen Family Relationship (Temporary) (Class UP) (Subclass 461) visa.

   decision

9. The Tribunal affirms the decision to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.

   Naomi Schmitz
   Member