Joseph (Migration)

[2018] AATA 4917

Joseph (Migration) [2018] AATA 4917 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr George Joseph

VISA APPLICANT:  Mrs Mahie Mourice Aziz Milad

CASE NUMBER:  1723067

HOME AFFAIRS REFERENCE(S):           BCC2017/2954608

MEMBER:Nora Lamont

DATE:23 October 2018

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 23 October 2018 at 8:49am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – tourist stream – joint hearing with family members – visit son and grandchildren – abide by previous visa conditions – dependent daughter at home – decision under review remitted for reconsideration

LEGISLATION
Marriage Act 1961 (Cth) s 65
Migration Regulations 1994 (Cth) Schedule 2 cls 600.211, 600.221, 600.222, 600.611

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 7 September 2017 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 17 August 2017. 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 (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 because the delegate was not satisfied that the applicant intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 16 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, his Pastor and a friend. The Tribunal also spoke with the review applicant’s father as his visa application was under review at the same hearing (File 1723061—a separate decision will be issued). The Tribunal also spoke with the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The evidence before the Tribunal was sufficiently persuasive and for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 her son and grandchildren. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).

   Background

10. The initial visa application was made by Mrs Mahie Mourice Aziz Milad, a 57 year old female from Egypt. The application included that the applicant would be travelling with her husband Mr Sherif Halim Awadallah however a separate application was made and a separate Tribunal application and hearing was held. (File 1723061—a separate decision will be issued).

11. The stated purpose of the visits was to see her son and her grandchildren for a family visit. The planned date of arrival was October 2017. The applicant’s daughter in law was due to have a baby and suffers from some health issues and the mother in law wished to be in Australia to support and to meet her grandchildren.

12. The application was refused. The decision outlines that the applicant did visit Australia in 2014 and did abide by her visa conditions. However, this time the applicant would be travelling with her husband and leaving her non-dependent daughter at home, which whilst it may provide some incentive to return it was weighed against other concerns outlined in the decision.

13. The delegate then says that the applicant has not provided any evidence of previous travel or demonstrated previous compliance with immigration laws in Australia or other like countries. This contradicts the paragraph before in which the delegate gave weight to the applicant as she had previously been in Australia in 2014 and complied with her visa conditions.

14. The delegate also noted the applicant had limited funds in Egypt which indicated she planned to spend a significant portion of her funds on the Trip to Australia. The delegate also noted the invitation letter from the applicant’s family however, they were not satisfied that the applicant genuinely intends to stay in Australia temporarily.

    cl.600.211(a)

15. 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)).

16. The applicant visited Australia in 2014. The applicant abided by her visa conditions and the Tribunal considers that if the applicant wanted to migrate to Australia she would have done so in 2014.

17. The Tribunal also places weight in the applicant’s favour because the Tribunal has no information that the applicant did anything other than adhere to the conditions on her visa in 2014 and returned to Egypt. If she was paving the way to changing her visa status on shore she would have done so then.

18. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

19. The Tribunal was provided with evidence that the applicant inherited a jewellery shop and she works at the shop everyday with her husband. The Tribunal is satisfied the applicant is not coming to Australia to work and would therefore comply with condition 8101. Similarly, the Tribunal considers it highly unlikely that she would come to Australia to study on a long term basis.

20. The Tribunal notes that the applicant has a daughter at home who is not married and therefore is considered to be a dependent. This combined with the jewellery shop provides incentive for the applicant to return.

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The applicant’s son and daughter in law are established Australian residents with small children and no family in Australia. The Tribunal also spoke with two witnesses who verified that the applicant would be coming to Australia temporarily. The Tribunal has weighed this in the applicant’s favour.

22. On balance the Tribunal considers the family’s desire to reunite compelling and credible.

23. 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.

    Nora Lamont
    Member