Girgis (Migration)

[2018] AATA 3129

Girgis (Migration) [2018] AATA 3129 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Emad Girgis

VISA APPLICANT:  Mr Maged Fahiem Yousef GERGES

CASE NUMBER:  1811279

DIBP REFERENCE(S):  BCC2018/1382891

MEMBER:Tania Flood

DATE:4 July 2018

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 04 July 2018 at 2:54pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream - Whether the applicant genuinely intends to stay in Australia temporarily – Where applicant intends to visit terminally ill family member - History of compliance with visa conditions – Strong incentives to return to home country – Limited incentives to remain in Australia – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, Conditions 8101, 8201, 8503, 8531

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 10 April 2018 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 24 March 2018. 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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied he genuinely intends to visit Australia temporarily.

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

6. In addition to supporting documents produced at the time of application, on 4 July 2018 the Tribunal received a submission and additional documentation including evidence of the visa applicant’s funds, property holdings and significant assets in Egypt, business ownership and residential status in Egypt.  It was further submitted that the visa applicant has visited Australia on previous occasions and complied with the visa requirements.  He wishes to visit Australia a further time because his father, who is 83 years old, and suffering from a terminal illness, wishes to see him.  Further, he has a wife and three children who live a comfortable and stable life in Egypt and he has no incentive to stay in Australia without them.

7. Based on the available information, and given the circumstances, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. 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)).

12. Between 19/1/95 and 3/1/98 the review applicant entered and departed Australia numerous times as the holder of Visitor visas.  On 20/8/98 he was granted an AJ-105 Skilled visa which was valid until 23/10/03.  On 19/11/02 he became an Australian citizen.

13. The visa applicant first arrived in Australia on 1/12/99 as the holder of a Visitor visa.  He was granted a series of Tourist (Long Stay) visas and departed Australia on 10 September 2000 before his last visa ceased.  On 28/5/15 he was granted a Visitor visa and arrived in Australia on 7/6/15.  He departed Australia on 20/7/15 before his visa ceased.  On 17/4/16 he was granted a further Visitor visa and arrived in Australia on 31/5/16.  He was granted a further Visitor visa on 16/8/16 and departed Australia on 29/9/16 before his visa ceased.  On 20/6/17 he was granted a further Visitor visa and arrived in Australia on 3/7/17.  He departed Australia on 2/8/17 before his visa ceased.  The visa applicant’s wife and three children accompanied him on his last visit to Australia and departed with him on 2/8/17.

14. The Tribunal finds there is no adverse family migration history to consider.

15. 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.

16. The evidence before the Tribunal, including copies of company documents, audited income statements and bank statements indicates that the visa applicant conducts a successful Home and Electrical Appliances business in Cairo.  In addition he has provided proof of ownership of fixed assets including three commercial shops, an apartment complex and a further commercial premises.  The Tribunal is satisfied that he will not and has no need to work in Australia if he is granted a Visitor visa.   The purpose for the visit is for the visa applicant to visit his terminally ill father.  There is nothing before the Tribunal to indicate that the visa applicant intends to engage in study or training in Australia.  For these reasons the Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

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

18. Based on the available evidence the visa applicant has established commercial interests in Cairo.  In addition, his wife and three children, aged 15, 10 and 9 will remain in Egypt for the period of the proposed visit.  The Tribunal considers he has strong financial and personal incentives to return to Egypt after visiting Australia.

19. The Tribunal has placed much weight on the visa applicant’s migration history.  The department’s records indicate he has visited Australia four times between 1999 and 2017.  His most recent visit was in July 2017 and notably on that occasion he travelled with his wife and three children.  On all occasions the visa applicant complied with the conditions of his visa and departed Australia prior to his visas ceasing.

20. Despite that the visa applicant last visited Australia in July 2017 the review applicant has produced evidence to show that their very elderly father is suffering from a terminal illness and his condition is deteriorating.  In the circumstances the Tribunal considers the request for a further Visitor visa to be reasonable and not indicative of any intention on the part of the visa applicant to remain in Australia after his visa ends.

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

22. 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

23. 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