Helmy (Migration)

[2020] AATA 2903

Helmy (Migration) [2020] AATA 2903 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Maysa Helmy

VISA APPLICANT:  Mrs Mai Ali Hassan Zaki SHETA

CASE NUMBER:  1811665

HOME AFFAIRS REFERENCE(S):          BCC2018/873104

MEMBER:Melissa McAdam

DATE:30 April 2020

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 30 April 2020 at 12:25pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – proposed visit to applicant’s aunt – evidence of employment – applicant’s husband and daughter remaining in Egypt – family commitments in Egypt – husband’s previous compliant travel to New Zealand – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 16 March 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 23 February 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 (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 applicant provided the following information in her visa application:

   a.She is a 37 year old married woman from  El Sheikh Zayed in Giza, Egypt.

   b.Her parents, spouse, son, and brother are living in Egypt.

   c.Her aunt, the review applicant, and aunt’s family live in Australia.

   d.She wants to come to Australia with her 5 year old son for up to three months, to visit her family here and introduce them to her son.  Her husband will remain in Egypt while she and their son visit Australia.

   e.She has been employed at an international telecommunication company in Egypt since March 2016.

   f.She has her own funds to support herself and her son during the visit to Australia.  Her aunt is also willing to help them.

   g.She was previously refused a Visitor visa in May and July of 2017.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the presence family members in Egypt did not sufficiently demonstrate she intended a genuine temporary stay in Australia; she did not provide evidence of her employment; and she did not provide evidence of other significant ties in Egypt.

   Information to the Tribunal

   Written Submission

6. On 23 April 2020 the review applicant sent the following written information to the Tribunal:

   a.    The passport pages from the visa applicant’s husband’s passport showing that he travelled to New Zealand on 4 November 2018 and re-entered Egypt on 11 December 2018.  The review applicant writes that the visa applicant’s husband was sent by his work "Vodafone - Egypt" to New Zealand to participate in advanced IT training pioneered by Vodafone international. He stayed in New Zealand for approximately 6 weeks (the duration of training) then returned to his work at Vodafone Egypt on completion of training.

   b.    The review applicant’s step-son’s bank account statement.

   c.     A statement by the review applicant’s daughter, Ms Salma Helmy, stating that the visa applicant is her cousin and they have a very close relationship. In 2017 she invited the visa applicant to Australia to be bridesmaid at her wedding but the visa applicant’s application for a visitor visa was refused because she had not previously travelled overseas.

   d.    A statement by the review applicant’s step-son, Mr Shaddie Helmy, stating that he has been very close to his step-cousin, the visa applicant, for 30 years. He has not seen her for several years and would love her to visit Australia to meet his wife and children.

   e.    A submission that the visa applicant genuinely wants to visit her family here in Australia and return to her home country after her stay. She has many personal responsibilities and commitments to return to including work commitments and her husband and family back home in Australia. She also has a new born daughter. Her aunt and cousins in Australia wish to spend time with her and will support her through her stay here in Australia.

   f.   The Egyptian birth certificate for the visa applicant’s baby daughter, born on 20 January 2019.

7. 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 on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her aunt in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)). The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.

11. 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.

12. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the visa applicant has access to sufficient funds to support herself during a visit to Australia. She will also be travelling to Australia with her young son who will require her personal care. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

13. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

14. Condition 8503 refers to entitlement and is not a condition that involves compliance.

15. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

16. The Tribunal accepts that the visa applicant is a married woman from Egypt.  The Tribunal accepts the visa applicant’s husband, son, baby daughter, parents and brother also reside in Egypt.  The visa applicant intends to travel to Australia with her young son.  The Tribunal considers that the presence of the visa applicant’s other close family, particularly her one year old daughter and husband, in Egypt represents significant incentive for the visa applicant to return there after a short stay in Australia.

17. The Tribunal accepts that the visa applicant and her husband work at Vodafone Egypt and their work there appears secure and valued.

18. The Tribunal notes that the visa applicant’s husband recently travelled to New Zealand in 2018 for work-related training, and that he returned to Egypt after his six week training seminar was completed.  The Tribunal gives this fact substantial weight in the visa applicant’s favour that her family life is stable and comfortable in Egypt and that she and her husband feel no compulsion to remain outside Egypt.

19. The Tribunal gives substantial weight to the good migration history of the review applicant in Australia.  There is no indication before the Tribunal that her relatives or family have breached visa conditions in Australia.  The Tribunal acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia. 

20. There is no indication before the Tribunal that the visa applicant wishes to travel to Australia for a purpose other than a temporary visit to see her aunt and cousins here and introduce them to her son.  In view of the fact that she is leaving her husband and one year daughter behind in Egypt the Tribunal is satisfied that she will return to them there after a short stay in Australia.

21. 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

22. 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.

    Melissa McAdam
    Member