Morgan (Migration)

[2021] AATA 5447

Morgan (Migration) [2021] AATA 5447 (13 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Adam Morgan

VISA APPLICANT:  Mr Essmat Abelhameed Mousa Shewita

CASE NUMBER:  1920597

HOME AFFAIRS REFERENCE(S):          BCC 2019/2400952

MEMBER:Nora Lamont

DATE:13 December 2021

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 13 December 2021 at 9:14am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –– tourist stream – visiting his son, daughter and grandchildren – has significant ties to home country – genuine intention to stay temporarily –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 23 May 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 6 May 2019. 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 (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 because the applicant is retired, did not provide evidence of assets and the delegate was not satisfied the applicant intended a temporary stay in Australia.

5. The review applicant appeared before the Tribunal on 8 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Egypt. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

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

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)).

11. The applicant is a retired elderly gentleman who wishes to see his children. He has no travel history other than to Saudi Arabia on numerous occasions, so I have given little weight to that. However, I also acknowledges that there is no adverse information before the Tribunal that would indicate the applicant would not comply substantially with the conditions on his visa.

12. 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)

    ·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.

13. The applicant has limited English and is 70 years old. He does not intend to work, study or engage in any activity outside of visiting his son, daughter and grandchildren. The visa applicant spoke of not seeing his children and grandchildren since 2018 and how difficult it is to have them visit him as it is expensive to have to buy multiple plane tickets for the grandchildren. It is cheaper for all concerned if he travels to Australia for a visit.

14. The visa applicant has two brothers and sisters who live close by who he spends time with weekly. He holds the key to his local Mosque, and this is a very prestigious position. He opens the Mosque each day before prayers. He likes to go to the market and catch up with his friends.

15. The visa applicant wishes to come to Australia for 4 or 5 weeks and leave as he doesn’t want to be a burden on his family here. He lives in his own apartment and before he retired, he was an accountant. He told me that he really wants to see his grandchildren because his granddaughter Lara he last saw when she was 6 months old and now when he sees her online, she hides from him as she doesn’t know him. This makes him sad, and he wishes for that connection with his grandchildren.

16. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The review applicant stated he has worked hard in Australia to get to where he is, and he wants to show his father how far he has come. He wants to share his dream with him. He said his father is an honourable man and would comply with the conditions on his visa.

17. I have taken into consideration the facts of this application and weighed them up. I do not believe that the applicant intends to stay in Australia beyond the validity of his visa. He is elderly, misses his children and grandchildren and simply wishes to visit them and see where and how they live. There is nothing before the Tribunal that indicates otherwise.

18. 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

19. 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