ElZeiny (Migration)

[2022] AATA 454

ElZeiny (Migration) [2022] AATA 454 (22 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hatem ElZeiny

VISA APPLICANT:  Ms Asmaa Magdy Mohamed Mohamed ElZeiny

CASE NUMBER:  2001623

HOME AFFAIRS REFERENCE(S):          BCC2019/803279

MEMBER:Antonio Dronjic

DATE:22 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 22 February 2022 at 1:41pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – previous compliant visits – care of elderly parents in Egypt – desire for further family visits – property ownership in home country – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 29 January 2020. With his application, the review applicant submitted a copy of the primary decision record.

5. By letter dated 25 November 2021, the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a telephone hearing scheduled for 11 January 2022.

6. On 5 January 2022, the review applicant submitted a copy of the Department’s visa grant notice of 12 May 2017 related to the visa applicant’s past application for visitors’ visa.

7. The review applicant appeared before the Tribunal on 11 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

8. The review applicant is a solution architect working as a subcontractor for the Australian Department of Defence. He came to Australia in 2011 as a holder of a skilled visa and is now an Australian citizen. Together with his partner, he lives in a two-bedroom apartment they rent. He has no children. His brother, two sisters and parents all live in Egypt. He undertook to provide financial assistance for her sister’s travel and stay in Australia during her visit.

9. The visa applicant, Ms ElZeiny, is the review applicant’s sister. She is single. She has completed two bachelor’s degrees in Egypt. She worked as an accountant but is no longer employed. She resides with her parents and is looking after their well-being. Ms ElZeiny owns an apartment in Cairo and has provided documentary evidence in support of this claim.

10. She was previously granted an Australian tourist visas three times (24 August 2014, 30 May 2017 and 28 January 2019). According to Department’s records, she departed Australia within the permitted period of stay. There is no evidence before the Tribunal that she breached any of the conditions imposed on her previously granted tourist visas.

11. Mr ElZeiny further stated that his parents and another sister previously applied and were granted an Australian visitors’ visa. None of them ever breached any of the conditions imposed by the Department.

12. When asked about the visa applicant’s incentives to return to Egypt, the review applicant stated that his sister is looking after their parents who will stay behind during her proposed travel to Australia. In addition, Ms ElZeiny owns an apartment in Cairo and has no intention of moving to Australia on a permanent basis.

13. If granted visitors’ visa, Ms ElZeiny would travel to Australia latter this year and stay for a period of up to three months. The Tribunal explained the conditions that will be imposed on her visitor visa if granted. Ms ElZeiny indicated her willingness to comply with any condition that will be imposed on her visa.

14. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone conferencing. The Tribunal is satisfied that both the review applicant and the visa applicant were given a fair opportunity to give evidence and present arguments.

15. On 24, 28 and 29 January 2022, the review applicant submitted additional documentary evidence in support of the review application. The list of documents is attached to this decision record and marked as Attachment A.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

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

19. 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)).

20. Based on the evidence before it, including the visa applicant’s movement records, the Tribunal finds that the visa applicant was first granted a visitor visa on 24 August 2014. She arrived in Australia on 24 August 2014 and departed on 16 September 2014.

21. Her second visitor visa was granted on 30 May 2017. She arrived in Australia on 7 June 2017 and departed on 13 August 2017.

22. Her third visitor visa was granted on 30 May 2017. She arrived in Australia on 7 June 2017 and departed on 28 January 2019. She arrived in Australia on 12 February 2019 and departed on 1 April 2019.

23. There is no evidence before the Tribunal that on any of those three occasions Ms ElZeiny breached any of the conditions imposed on her visa. The Tribunal gives significant weight to these findings.

24. 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.

25. Based on the applicant’s evidence and her immigration history, the Tribunal is satisfied that the applicant does not intend to work in Australia if granted a visitor visa. The Tribunal accepts that her brother will provide financial support during her 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.

26. The Tribunal is satisfied that the visa applicant will not remain in Australia after the end of her permitted stay and that he will comply with condition 8531 if imposed on her visa.

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

28. The visa applicant has parents who are living in Egypt and 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.

29. The Tribunal notes that the visa applicant’s brother lives in Australia which may pose an incentive to the visa applicant to remain in Australia but only if this was considered in the absence of all the other factors. She has been in Australia three times and has always complied with the conditions imposed on her visa.

30. The Tribunal accepts that the visa applicant owns an apartment in Cairo which is another incentive for Me ElZainy to return to Egypt after completing her travel and stay in Australia. She was previously employed as an accountant and has completed two bachelor’s degrees in Egypt.

31. The stated purpose of the visa applicant’s visit to Australia is to visit her 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 her proposed stay in Australia is consistent with the purpose for which the sponsored visitor visa is granted.

32. 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

33. 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

    
    

    Attachment A: Document List

    1.On 24, 28 and 29 January 2022, the applicant’s representative provided the Tribunal with the following documentation:

    ·Applicant’s payslips for the period 1 November 2021 to 31 December 2021

    ·Bank account statement for the period 1 October 2021 to 30 December 2021

    ·Contract of sale of property dated 7 December 2014

    ·Receipt for cash payment dated 13 January 2022

    ·Visa applicant’s statement dated 15 January 2022