ElZeiny (Migration)

[2022] AATA 434

ElZeiny (Migration) [2022] AATA 434 (24 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hatem Elzeiny

VISA APPLICANT:  Mr Ihab Magdy Mohamed Mohamed Elzeiny

CASE NUMBER:  2001881

HOME AFFAIRS REFERENCE(S):          BCC2019/803277

MEMBER:Antonio Dronjic

DATE:24 February 2022

PLACE OF DECISION:  Melbourne

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 24 February 2022 at 12:34pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – applications by two siblings – parents and another sibling, property ownership and employment in home country – parents’ visas now ceased – evidence of review applicant’s funds to support travel and stay provided – previous compliant travel to Australia by other family members and to third country by applicant – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), 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 28 January 2020 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 9 January 2020. 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. The review application was lodged with this Tribunal on 2 February 2020. With his application, the review applicant submitted:

   ·a copy of the primary decision record;

   ·copies of the Department’s visa grant notices of 30 May 2017 and 28 January 2019 related to the review applicant’s mother’s past visitor visa applications;

   ·copies of the Department’s visa grant notices of 4 August 2014 and 31 May 2017 related to the review applicant’s father’s past visitor visa applications;

   ·copies of the Department’s visa grant notices of 4 August 2014 and 28 January 2019 related to the review applicant’s sister’s (Ms Asmaa Elzeiny) past visitor visa applications;

   ·a copy of the Department’s visa grant notice of 4 August 2014 related to the review applicant’s sister’s (Ms Israa Elzeiny) past visitor visa application.

5. On 24 January 2022, the review applicant submitted:

   ·a copy of his bank account statement as evidence of funds necessary to financially support his brother’s travel and stay in Australia;

   ·copies of the review applicant’s recent payslips as evidence of financial capacity to support his brother’s travel and stay in Australia;

6. On 6 February 2022, the review applicant submitted:

   ·a copy of the visa applicant’s statement dated 30 January 2022;

   ·a copy of the visa applicant’s driver’s licence (with English translation);

   ·a copy of the contract of sale (with English translation) dated 7 December 2014 as evidence of the visa applicant’s property ownership in Egypt;

   ·a copy of an electricity invoice dated 13 January 2022 as evidence of the visa applicant’s residency at apartment 2;

   ·a copy of a letter from EgyptAir dated 2 February 2022 as evidence of the visa applicant’s continued employment as an accountant at this company.

7. The Tribunal conducted a telephone hearing with the review applicant on 11 January 2022 in the related review application lodged in relation to Mr Elzeiny’s sister Asmaa’s visitor visa refusal (Tribunal case number 2001623). The review applicant’s oral evidence related to his ability to provide financial support for his sister’s and brother’s travel and stay in Australia was considered in the present case.

8. The review applicant gave evidence, inter alia, that his parents were granted visitor visas in 2020 but were unable to travel to Australia due to COVID-19 related travel restrictions imposed by the Australian Government. Their visas are now ceased and they will be staying in Egypt during the review applicant’s brother’s and sister’s’ travel and stay in Australia. In addition, another family member, the review applicant’s sister, Ms Israa Elzeiny, will remain in Egypt.

9. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to s 360(2)(a) of the Act.

   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 his brother. 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. The visa applicants did not travel to Australia previously. Based on the evidence presented, the Tribunal accepts that the visa applicant previously travelled overseas in December 2015. There is no evidence before the Tribunal that the visa applicant did not comply with the conditions imposed on his visa on that occasion. The Tribunal notes that immediate members of the visa applicant’s family travelled to Australia on multiple occasions and complied with the conditions imposed on their visas.

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 600.611(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.

15. Based on the evidence before it and taking into consideration the review applicant’s family immigration history, the Tribunal is satisfied that the visa applicant does not intend to work in Australia if granted a visitor visa.

16. The Tribunal accepts that his brother will provide financial support during his proposed stay in Australia. Similarly, the Tribunal does not have concerns that the applicant is coming to Australia to study for more than three months, if at all. The Tribunal is satisfied that the visa applicant will not remain in Australia after the end of his permitted stay and that he will comply with condition 8531 if it is imposed on his visa.

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

18. The Tribunal accepts that the visa applicant has strong employment ties in Egypt. Based on the evidence before it, the Tribunal is satisfied that the visa applicant is and has been employed as an accountant with EgyptAir since September 2008.

19. The visa applicant has parents and a sister who are living in Egypt and will remain in Egypt during the visa applicant’s travel and stay in Australia. The Tribunal accepts that the visa applicant maintains a strong relationship with them. Consequently, the Tribunal accepts that the visa applicant has significant personal ties in Egypt.

20. The Tribunal notes that the visa applicant’s brother lives in Australia which may pose an incentive for the visa applicant to remain in Australia but only if this was considered in the absence of all the other factors.

21. The Tribunal accepts that the visa applicant owns an apartment in Cairo which is another incentive for Mr Elzeiny to return to Egypt after completing his travel and stay in Australia.

22. The stated purpose of the visa applicant’s visit to Australia is to visit his brother. The visa applicant wishes to remain in Australia for a period of up to three months. The Tribunal finds that the purpose of the visa applicant’s visit and his proposed stay in Australia is consistent with the purpose for which the visitor visa is granted.

23. The Tribunal considered all the applicant’s individual circumstances, including the claimed reason for visiting Australia. 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

24. 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.

    Antonio Dronjic
    Member