Galil (Migration)

[2021] AATA 3120

Galil (Migration) [2021] AATA 3120 (13 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Anne Galil

VISA APPLICANT:  Mr Ahmed Faisal Saleh

CASE NUMBER:  1906656

HOME AFFAIRS REFERENCE:               BCC2018/5283635

MEMBER:Rosa Gagliardi

DATE:13 July 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 13 July 2021 at 3:15pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – sponsor did not want to proceed with the application – genuine temporary stay criterion ––decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.212

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 17 January 2019 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 26 November 2018. 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 Sponsored Family 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.

5. The review applicant appeared before the Tribunal briefly by telephone on 29 May 2021 to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister, the sponsor and review applicant.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

   Background

9. The sponsor/review applicant is currently undergoing chemotherapy.  When the Tribunal attempted to hold a hearing with her, the sponsor stated she was feeling very unwell and did not want to proceed with the application any further.  Indeed, she was distressed.  She stated that she needed her mother who was living in Germany to come and care for her, as apart from her husband, she had nobody in Australia.  The Tribunal understands that the sponsor’s mother has applied independently to visit Australia to be with her daughter during her illness.  In the circumstances, the Tribunal attempted to draw to the sponsor’s attention the possibility of withdrawing from the review as it appeared that this is what she wanted to do.  Despite reaching out to the sponsor to determine how she might wish to proceed in the circumstances, the Tribunal has not been contacted further in relation to this matter by the sponsor and the Tribunal has little choice but to proceed on the evidence before it.

10. As explained in its hearing invitation dated 14 April 2021, the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone.  As detailed below, the Tribunal had questions it would have pursued at hearing had it proceeded.

11. The Tribunal notes that the applicant has submitted a copy of the Departmental decision for the purposes of the review.

12. The Tribunal has contacted the Department to request that the sponsor’s mother’s application be assessed in an expeditious manner, emphasising how unwell the sponsor is and how it appears that the support of the sponsor’s mother at this difficult time would be beneficial to the sponsor.

    cl.600.211(a)

13. 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)).

14. The Tribunal notes that the applicant has travelled to Cuba, Mexico, Dominica and Turkey.  The Tribunal places some weight on this previous travel and for the purposes of this review, the Tribunal is prepared to accept that the applicant complied with the conditions on his visas on those travels.  The Department stated in its decision that the applicant did not have ties to those countries unlike in Australia where his sister (the sponsor) is living and is undergoing serious illness.  The Tribunal has limited information before it about the purpose of the applicant’s visit to those countries and presumes it may have been for recreational purposes, but had the hearing proceeded the Tribunal would have liked to query the applicant about his travel and whether he has other family members in any of these countries. 

15. Overall, the Tribunal places some weight on the applicant’s travel history, noting that the countries he has travelled to are not particularly comparable to Australia in terms of standard of living and work opportunities.  Nonetheless, the Tribunal notes that the applicant is employed in Germany and that seeking employment opportunities in Australia is not a critical consideration in determining whether the Tribunal can be satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

    cl.600.612

16. 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 600.612):

    ·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.

17. The information before the Tribunal shows that the applicant has been employed by Audi IG Ingolstadt since 1 July 2015.  The Tribunal considers that this is a solid work record and as stated above, the Tribunal is does not find that the applicant would be strongly motivated to come to Australia solely to find work.  Similarly, the Tribunal does not consider that the applicant who is 32 years old, would necessarily be using the Visitor visa as a means to be able to gain a student visa onshore.  The applicant, the Tribunal presumes, could just as easily study in Germany if that was his intention.

18. At a hearing the Tribunal would have liked to ask questions about the applicant’s personal circumstances and whether he had made a commitment to a partner in Germany (or elsewhere) that would act as an incentive for the applicant to return to his host country, Germany or elsewhere.  These are matters about which the Tribunal has limited information, and which therefore leave the Tribunal with doubts about whether the applicant does have strong affective ties in Germany to return to. 

19. The Tribunal is aware that the applicant’s parents are living in Germany also and that he has a brother living elsewhere, but the applicant has not indicated where his brother lives.  While the applicant is no doubt close to his parents, were the applicant to contemplate a new life in Australia, and able to secure a more permanent migration outcome by changing his status onshore, then the Tribunal would consider that the applicant’s parents would not play a significant role in incentivising the applicant to return to Germany on the expiry of his visa.

20. In terms of the applicant’s brother, had the Tribunal been able to, it would have explored with the applicant where the applicant’s brother resides and what migration status his brother holds in the country in which he resides.

21. The Tribunal considers the matter of the applicant’s residency status in Germany to be critical.  At a hearing the Tribunal would have liked to ask the applicant how he was able to gain residency in Germany, and whether he has a meaningful right to reside in that country, and to eventually seek citizenship to obtain all the benefits and certainty that citizenship of Germany might confer.  The Tribunal accepts that the applicant is a permanent resident of Germany but would like to have had information about what benefits such status confers as opposed to citizenship.  On the information before it, the applicant continues to be an Iraqi citizen, and it is not clear to the Tribunal when the applicant might become eligible to apply for German citizenship, if ever.  The Tribunal has many questions around the applicant’s status in Germany and this raises doubts about whether the applicant might be seeking in Australia a durable migration status solution, particularly as his sister also lives here.

22. The Tribunal notes that it has been evidenced that the applicant has in excess of 15,000 Euro and would have no accommodation costs in Australia.  The Tribunal accepts that the applicant has savings that might cover expenses for a brief visit to Australia.  Nonetheless, given the many unknown factors about the applicant’s residence in Germany, the Tribunal places less weight on the applicant’s financial standing.

23. The Tribunal notes that the sponsor has stated that she is in a good financial position to host the applicant for a period and the Tribunal accepts this to be the case.  Nonetheless, this matter is outweighed by the Tribunal’s concerns about what the applicant’s ties to Germany are and whether his future there will entail citizenship. 

24. At a hearing the Tribunal would have also liked to query the applicant about any other substantial assets he might have in Germany to demonstrate that he would return to that country on expiry of his visa.

25. Because of the Tribunal’s unanswered questions as set out above, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted. 

    cl.600.211(c)

26. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  The Tribunal appreciates that this review involves a Sponsored Family Visitor visa application and that security would need to be paid to secure the visa.  The Tribunal accepts that such security could be provided to the Department, but because of the unanswered questions above, is not persuaded that the issue of security outweighs the Tribunal’s concerns that the applicant might be attempting to seek a migration outcome in Australia to be with his sister.  This is particularly so as the applicant has transferrable skills and would be able to adjust to the Australian environment, without concerns that he might ever have to return to his home of citizenship, Iraq.

27. For the above reasons the Tribunal is not 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 not met.

    DECISION

28. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Rosa Gagliardi
    Member