Kamal (Migration) - [2024] ARTA 467

KAMAL (MIGRATION) [2024] ARTA 467 (18 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ahmed Mahmoud Mohamed Kamal
Visa Applicant:  Mr Moustafa Mahmoud Mohamed Kamal Mahmoud
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2400658

Tribunal:General Member M. Moustafine
Place:Sydney
Date: 18 December 2024
Decision:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 18 December 2024 at 5:32pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit brother – lack of clarity regarding employment in Saudi Arabia – serious concerns about the applicant’s current residence and work status in Saudi Arabia – not satisfied that the visa applicant has strong incentives to return to Egypt – do not genuinely intend to visit Australia temporarily – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 December 2023 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 2 November 2023. 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.
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.
Evidence before the Department
Based on his visa application, the visa applicant is a 51-year-old citizen of Egypt, born in Alkarada, Kafrelshikh province, and currently living and working in Saudi Arabia. He sought the visa for the purpose of visiting his brother, the review applicant, and his family for about a month. The visa applicant is married since 2009, and his wife and two children will remain in Egypt. Since January 2015 he has been employed as a technician at the Kawader Maintenance Company in Riyadh, Saudi Arabia. All costs of his visit will be funded by his brother, an Australian citizen, who will accommodate him at his house in Greenacre, NSW. The visa applicant has travelled to and lived in Saudi Arabia. He has previously been refused a visa to Australia.
Based on his sponsorship form, the review applicant is the visa applicant’s brother, born in Alkarada, Egypt in January 1975. He is an Australian citizen and a director of an air-conditioning and refrigeration company. He had not previously sponsored any other visitors.
Key documents submitted to the Department in support of the visa application included a submission from the representative and an invitation letter from the visa applicant’s brother, the review applicant, giving assurance that he would provide financial support and accommodation, ensure that his brother met all visa conditions and provide a security bond if required. Also provided were copies of translations of the birth certificates of the review and visa applicants demonstrating family relationship; the visa applicant’s Egyptian passport, including two 90 day Saudi visas valid until 26 April 2021 and 3 January 2022 respectively; a tax invoice for a visa fee dated 6 November 2023 which does not identify the invoice recipient; the visa applicant’s Saudi residence card showing an expiry date of 25 February 2024; his Egyptian family registration, including his wife and two children; his Saudi bank statement; a letter from his employer confirming his employment as a building electrician since 1 December 2015 and approving six weeks’ leave; the review applicant’s bank statements and ABN registration for his air-conditioning and refrigeration company.
On 21 December 2023, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa grant. Among other things the delegate noted that although the visa applicant had been living and working in Saudi Arabia since December 2015, his residence permit was only valid until 25 February 2024, and he had not provided evidence of longer-term authority to reside there. While accepting that the presence of his wife and two children in Egypt might offer some inducement for the applicant to return to Egypt, he expressed concern at the security, economic and political circumstances there.
Evidence before the Tribunal
On 17 January 2024, the review applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision, providing a copy for the purposes of the review. The review applicant was represented in relation to the review.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 22 and 26 November 2024, the representative provided a submission in which he addressed issues raised by the delegate in his decision as well as supporting documents. These included statements from the visa and review applicants; witness statements from the review applicant’s wife and son; a witness statement from the visa applicant’s employer, Mahmoud Alleathy, ‘transcribed in English’ from what was said to the review applicant by the witness in Arabic via Facebook videocall; the review applicant’s birth and marriage certificates and various financial documents. Relevant documents from the visa applicant included his Egyptian passport, showing two Saudi 90 day visas with validity to 26/4/2021 and 03/01/2022 respectively; translations of his marriage certificates, his birth certificate and those of his wife and children and their family registration certificate; the visa applicant’s skills level certificate; legal documents for purchase of apartment and land in Egypt; a recent Saudi bank statement; statements from his children’s school in Egypt; translation of an undated contract between the visa applicant and his employer, Kawader Maintenance Corporation; and the visa applicant’s untranslated Saudi residence card.
The hearing
The review applicant appeared before the Tribunal by MS Teams videoconference on 3 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by MS Teams videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The review applicant told the Tribunal that he initially visited Australia as a crew member on a ship and in March 2002, left the ship and applied unsuccessfully for a refugee visa, which he pursued through merits and judicial review. He subsequently met his wife in Australia and then returned to Egypt and applied for a partner visa offshore. They have four children. He owns an air conditioning and refrigeration business and has a share in another company selling fridges. He owns his house, which has a two-bedroom granny flat, where he will accommodate his brother. He has four sisters and two brothers in Egypt. His sister’s son is in Australia on a Student visa. The review applicant has not previously sponsored anyone to Australia.
Both the visa and review applicants told the Tribunal that the visa applicant wished to visit Australia for 2-4 weeks as he had not seen his brother’s children for over five years. He would pay for his flights while the review applicant would accommodate him and cover expenses. They said the visa applicant had been employed as a supervisory electrician for a company in Riyadh for the past 9 years at a monthly salary of 5,000 SAR, with the visa applicant adding that he also got overtime and fringe benefits for rent and food of 2,500 SAR. Both applicants identified the visa applicant’s job in Saudi Arabia and his wife and two children in Egypt as his key incentives to return home after his visit. The review applicant also mentioned his brother’s property in Alexandria, his land in his village where the family lived and his many friends in Egypt as additional incentives.
The visa and review applicants gave inconsistent evidence regarding the visa applicant’s leave conditions and frequency of seeing his family in Egypt. The review applicant said his brother’s leave arrangements were quite flexible, that he could take holidays every 6 months to see his wife and children in Egypt, coming and going at his own will and had most recently spent two months in Egypt, from September to November 2024. By contrast, the visa applicant said he was entitled to one month of annual leave and generally returned to Egypt once a year and if circumstances required, twice a year at his own expense. He said he most recently spent a month in Egypt in November because of a finger injury and was planning to go again for a week at Eid al Fitr in mid-March 2025. He would have to take unpaid leave to go to Australia. While the visa applicant told the Tribunal that before his current job, he worked in Saudi Arabia from 2010 in another job, the review applicant said his brother previously worked in the UAE.
Asked about his current visa status in Saudi Arabia, the visa applicant said he had a working visa in the form of a residence ID. He held up a copy of a residence card which looked the same as those previously submitted to the Department and the Tribunal. When asked the expiry date on the card, the visa applicant said 24 February ‘this year’ (2024) and claimed that the visa would be renewed automatically every year. Asked whether a card with an expired date was still valid and why he did not have a card showing a valid date, the visa applicant shifted his evidence, saying his residence card was due to expire on 24 February ‘next year’ (2025). The Tribunal pointed out that a few minutes earlier, he had said that the expiry date of the permit he showed was 24 February 2024. The Tribunal noted that the translated residence permit which he had provided to the Department also had an expiry date of February 2024, and looked the same as the one provided to the Tribunal without a translation. The visa applicant then claimed that he did not say 2024 but that his residence permit expired in February 2025 and that he could not stay in Saudi Arabia if it was expired. The visa applicant then held up his mobile phone, saying he had logged into the digital Absher app, which showed that he still had over two months until expiry, but that the app could not be accessed outside Saudi Arabia.
At the end of the hearing the review applicant commented that, by mistake, they had submitted to the Tribunal the same Saudi ID which they had previously provided to the Department, instead of the new one. He claimed that ‘100 percent’ he had the new one in his computer at home. Asked how he came to have it when his brother told the Tribunal that he did not have it, the review applicant did not respond directly. He claimed that the ID on the digital app which his brother had held up showed an expiry date of ‘24 May 2025’, then corrected this to ‘24 February 2025’, whereas the old one had a date of 24 February 2024.
In a further discussion about the visa applicant’s work arrangements in Saudi Arabia, the Tribunal expressed its concern that the contract he provided was undated and there was no evidence of a regular salary payment being deposited into a bank account. The visa applicant responded that he had a letter from his employer and that he was sometimes paid in cash and sometimes through the ATM.
Both the visa and review applicants confirmed that the visa applicant was not involved in politics or religion and did not have problems with the government in Egypt. The visa applicant said he was aware his brother had unsuccessfully sought a protection visa in Australia but said he would not do the same as his job in Saudi Arabia was good and he was close to his family as it was only a two-hour flight to Egypt.
At one point during the hearing the representative queried whether the interpreter had accurately translated the visa applicant’s evidence regarding the dates of his approved leave from his company, an issue not material to the Tribunal’s findings. At the end of the hearing the representative, confirmed that he was not an Arabic speaker himself and explained that he was asking the review applicant if the translation was correct as he had been surprised by the review applicant’s reaction to the visa applicant’s evidence. The representative affirmed that he had no issue with the translation and did not question the competence and professionalism of the interpreter.
Post Hearing Submission
On 5 December 2024, the representative provided a post hearing submission attaching a letter from Kawader Maintenance, dated 3 December 2024 and a ‘screen shot of the visa applicant, evidencing his ID expiry date of 14 February 2025’. He submitted that this supported a finding that the visa applicant had been living and working in Saudi Arabia as claimed. He noted that the employer, ‘Kawader’ confirmed in the letter:
·     That the visa applicant is employed as an electrical supervisor, at a salary of 5000 Saudi Riyals per month.
·     That his current contract ends on 14 February 2025, and that it will be automatically renewed.
·     That he is expected to work on projects that are expected to be completed by late 2026 at the earliest.
The representative also noted that the employer was available to give oral evidence at the hearing and that the applicants had ‘no objection to the Tribunal confirming the visa applicant’s employment with Kawader. He also submitted that the sponsor could provide a bond in support of the application and that Condition 8503 on any visa granted would also be appropriate.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.
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)).
As the visa applicant has not previously visited Australia, the question of previous compliance is not relevant. The review applicant complied with the conditions of his last substantive visa, the Partner visa he was granted on 17 January 2008. However, by his own evidence, after arriving in Australia as a ship crew member in early 2002 he applied unsuccessfully for a Protection visa, pursuing it through merits and judicial review.
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.
The Tribunal has considered the written and oral evidence of the review and visa applicants, as well as all the documentary evidence submitted in support of the application.
Based on the review applicant’s written and oral evidence, the Tribunal accepts that the review applicant will provide financial support for his brother’s visit and accommodate him during her stay in Australia. It accepts the visa applicant’s evidence that he does not intend to study while in Australia and intends to comply with Condition 8201. However, given the lack of clarity regarding his employment in Saudi Arabia, the Tribunal cannot rule out that the visa applicant may seek to work while in Australia so may not comply with Condition 8101.
Condition 8503 refers to an entitlement and is not a condition that involves compliance.
The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.
Both the visa and review applicants identified the visa applicant’s work in Saudi Arabia and the presence of his family in Egypt as the key incentives for him to leave Australia within the timeframe of his visa. However, as discussed with the applicants at the hearing, the Tribunal has serious concerns about the visa applicant’s current residence and work status in Saudi Arabia. Significantly, no evidence was provided of a valid Saudi residence permit. The translation of his Saudi residence permit provided to the Department gave an expiry date of 25 February 2024. As recorded at paragraphs 15 and 16 above, the visa and review applicants gave confusing and inconsistent evidence regarding the expiry date of the visa applicant’s Saudi residence permit. Notably, the review applicant claimed ‘100 percent’ that he had a copy of his brother’s new ID card with a date of 24 February 2025 on his computer at home. However, no such evidence was provided to the Tribunal after the hearing. Instead, the representative submitted a ‘screen shot of the visa applicant, evidencing his ID expiry date of 14 February 2025’, a date not previously mentioned by either of the applicants. Furthermore, the ‘screenshot’ was a composite of several pages purportedly taken from ‘My Dashboard’ of an Absher social media digital app, with categories like ‘Occupation’ obscured and the date of the screenshot not identified. The Tribunal therefore gives little weight to this evidence.
As discussed at hearing, the Tribunal is also concerned that no evidence was provided of regular salary payments from the Saudi employer into a bank account and the work contract submitted was undated. Although the visa applicant claimed that he was sometimes paid in cash and sometimes through the ATM, no evidence was provided of the ATM payments, which would presumably go into a bank account.
The Tribunal also found problematic the various correspondences provided from Kawader Maintenance, the visa applicant’s alleged employer. Ahead of the hearing, the representative provided a witness statement from ‘Mahmoud Alleathy,’ who was identified as the visa applicant’s employer. This statement was ‘transcribed in English’ by the review applicant from what was said to him by the witness in Arabic on a Facebook videocall. As the review applicant is not a qualified interpreter and is a party to this review, the Tribunal cannot give this evidence weight. Moreover, the letter from the visa applicant’s employer submitted after the hearing bore a digital signature of a different person, ‘Hassan Mohammed,’ whose position in Kawader Maintenance was not identified. When the Tribunal attempted to open the company website address identified on this letter ( it opened up to a page stating that this domain was ‘not connected to a website yet’. The representative noted in his email that the employer was available to give oral evidence at the hearing and the applicants had no objection to the Tribunal confirming the visa applicant’s employment with Kawader. However, in view of the difficulty of verifying who might be at the end of a telephone line, the Tribunal opted not to do so.

The Tribunal accepts that the visa applicant may have lived and worked in Saudi Arabia in the past, as evidenced by the Saudi visa stamps in his passport and the Saudi residence permit valid until 25 February 2024, as submitted to the Department with translation. However, in the absence of evidence of a current Saudi residence permit, salary payments into a bank account or a valid dated Saudi work contract, the Tribunal is not satisfied that the visa applicant has ongoing work in Saudi Arabia that would serve as an incentive for him to return from Australia within the visa time frame. The Tribunal also notes that the visa applicant has not provided any evidence of any employment in Egypt that might serve as an incentive to return there.
Based on documentary evidence provided, the Tribunal accepts that the visa applicant has family ties to his wife and children in Egypt. However, by his own evidence he only returned to Egypt for a month a year on paid leave or sometimes visited every six months. Under the circumstances, the Tribunal is not satisfied that the presence of his family in Egypt would serve as a sufficiently strong incentive for him to return home from Australia within the timeframe of his permitted stay should he be granted a visa.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The Tribunal notes the review applicant’s readiness to provide a security bond to guarantee his brother’s departure within the timeframe of his visit. However, this does not overcome the Tribunal’s concerns about the visa applicant’s incentives to return to Egypt.
Having considered all the evidence before it, the Tribunal is not satisfied that the visa applicant has strong incentives to return to Egypt within the timeframe of his Visitor visa, if granted. It is not satisfied that he will comply with Condition 8531.
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
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Date(s) of hearing: 3 December 2024
Representative for the Applicant: Mr Nigel James Dobbie