Nabih (Migration) - [2018] AATA 5741

Nabih (Migration) [2018] AATA 5741 (9 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANTS:  Mrs Naglaa Nabih
VISA APPLICANTS:  Mrs Hanaa Nabih Lotfy Attiatalla
Mr Bola Wahid Zarif Lotfy
Mr Bishoy Wahid Zarif Lotfy Attiatalaa
Miss Bassant Wahid Zarif Lotfy Attiatalaa
CASE NUMBER:  1729738
HOME AFFAIRS REFERENCE(S):           BCC2017/3971803
MEMBER:Meena Sripathy
DATE:9 November 2018
PLACE OF DECISION:  Sydney
DECISIONS:  The Tribunal has no jurisdiction to review the decisions relating to the second, third and fourth named visa applicants.
The Tribunal affirms the decision not to grant the first named visa applicant a Visitor (Class FA) visas.

Statement made on 09 November 2018 at 10:03am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – postponement of hearing declined – request related to a person with no standing to seek review – visiting sister – intention to comply with visa conditions – unemployed – familial ties in home country – political volatility and security issues – limited information and evidence before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347
Migration Regulations 1994 (Cth), r 4.12; Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 November 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 27 October 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Tourist stream.
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.
The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied the first named visa applicant genuinely intends to stay temporarily in Australia, having regard to evidence provided about her circumstances in Egypt. The second, third and fourth named visa applicants, as minor children of the first named visa applicant, were also refused on the same basis, on the understanding that the parent would be responsible for them and so have the same intentions.
Preliminary jurisdiction issue
The review application lodged on 27 November 2017 referred to all four visa applicants. A preliminary issue arose about the Tribunal’s jurisdiction to review the refusals of all named applicants. An officer of the Tribunal left a voicemail message for the review applicant on 11 January 2018 to explain that multiple visa refusal decisions cannot be combined in one review for a Tourist visa. This information was also subsequently provided in an email sent on 15 February 2018, explaining the possible jurisdiction issue relating to the second, third and fourth named visa applicants.
Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c). Regulation 4.12 of the Regulations determines when applications can be combined in a Tribunal review, and specifies only sponsored visitor visa applications can be combined in a review. As these are Visitor visa applications made under the Tourist stream, the refusal decisions cannot be combined.
The Tribunal therefore has no jurisdiction to review the decisions relating to the second, third and fourth named visa applicants.
On 8 October 2018 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 November 2018. On that same date the review applicant’s husband emailed the Tribunal to request a postponement of the hearing on the basis that he would have just arrived home from an overseas trip on 6 November 2018 and may be tired. The Tribunal considered this request but decided not to postpone the hearing as the reason given related to a person who did not have standing to seek review, and the review applicant herself has given no reasons for not attending. In response the review applicant emailed the Tribunal on 9 October 2018 and explained that she does not drive and does not know how to get to the city, and also it is the end of the year and a busy time and so she and her husband cannot attend the hearing. She stated “we trust your opinion regarding the application and will be happy with the decision”. An officer of the Tribunal contacted the review applicant and offered her the option of appearing by telephone hearing and explained that the Tribunal would provide an interpreter. However, the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. The Tribunal officer explained to the applicant that she if she has any other information or evidence she wishes the Tribunal to take into consideration she should provide this before 7 November 2018. To date no further evidence or information has been provided. This matter has therefore been determined on the evidence available to the Tribunal.
For the following reasons, the Tribunal has concluded that the [matter should be remitted for reconsideration OR decision under review should be affirmed in respect of the first named visa applicant.].
CONSIDERATION OF CLAIMS AND EVIDENCE
The first named visa applicant is a 38 year old married woman from Egypt who seeks to visit her sister in Australia. She indicates she is unemployed. She provided supporting evidence of ownership of three assets, a bank statement of an account in her husband’s name showing savings and a letter of invitation from her sister in Australia. Also provided are evidence of evidence of her sister’s Australian citizenship, change of name certificate and ANZ bank statement showing available funds.
Before the Tribunal, the following additional evidence was provided: Translation of an extract of Family Registration showing the review applicant and visa applicant’s relationship as sisters; letter from Xplore Nations Bible College in Egypt dated 23 November 2017 confirming that the visa applicant is a student at the college and attesting to her good reputation and integrity and recommending that she be permitted to visit Australia, and a medical report relating to Nabieh Lotfy (described on the review application form as visa applicant’s father’s medical report). The review applicant also provide information that she arrived in Australia in 2001 as the holder of a Subclass 309 visa, and was granted a permanent Subclass 100 visa in 2003. Department movement records show that she has travelled overseas numerous times since then, most recently in November 2017.
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 applicants seek the visas for the purposes of visiting her sister. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.
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)). There is no information before the Tribunal to indicate the visa applicant has travelled here previously, and therefore there is no relevant personal history to consider.
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 and 8201 – must not engage in study or training in Australia for more than 3 months. Other conditions including 8503, 8501 and 8558 may be imposed. There is no information before the Tribunal to indicate the visa applicant is likely to work or study, and given the reasons for her visit and her circumstances in her country of origin, it has no basis to find that she will not comply with these conditions.
The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal observes that there is limited information before it on which to base its assessment of the visa applicant’s intentions. It is unfortunate that the review applicant, having sought a review of the decision, declined the opportunity to provide evidence and make arguments on the issues arising in the case at a hearing before the Tribunal, or even by way of written submissions. She was given a number of opportunities to do so, but has clearly declined them. Therefore, the Tribunal makes the following findings, and conclusions on the basis of the information before it.
The Tribunal accepts the review applicant and visa applicant are sisters, on the evidence of the family registration extract provided to the Tribunal. It also finds on this evidence, that they are Christian. The visa applicant indicates in her application that she is unemployed and last held employment in 1999. The review applicant has provided to the Tribunal a letter stating that she is currently a student at Xplore Nations Bible College. Little other information was found by the Tribunal about this institution on a general internet search[1] but for present purposes, the Tribunal is prepared to give her the benefit of any doubts it may have, and accept that she is unemployed and presently a student at this college.
[1] A internet search found only very general and vague information: and nothing about courses conducted.
With regard to family ties, she has provided information that she has a spouse in Egypt and three children, who also made applications to travel with her, but whose applications were refused. On this basis the Tribunal finds that the visa applicant has a spouse and three minor children in Egypt and it considers this a strong incentive for her to return were she to visit Australia. The family registration document also indicates she has another brother and sister, but the Tribunal has no more information about where they reside now and the nature of her relationship with them.
The visa applicant submitted some evidence purportedly of her financial position, being evidence of ownership of several assets, apparently in her husband’s name and his bank statement. The Tribunal has been unable to ask any questions about this evidence of the review applicant or visa applicant due to the review applicant’s decision not to appear at a hearing. The Tribunal also notes the document provided by the review applicant described as her ‘dad’s medical report’, but no explanation has been provided with this document as to its relevance to the review. Therefore the Tribunal does not consider it is able to make any determinative findings on the basis of this material alone.
There is no evidence before the Tribunal about any relevant travel history of the visa applicant, the review applicant, or other close family members, that may support or be indicative of the visa applicant’s intentions to only visit Australia temporarily.
Given that the visa applicant is Christian, the Tribunal has considered country information about the circumstances facing Christians in Egypt and notes as a minority community, they face a degree of discrimination (mostly societal than official), and have been targeted in some communal violence incidents.[2] The DFAT report refers to a series of major attacks targeting Coptic Christian churches[3] including recent information of an attack on a Coptic Orthodox Church and shop in December 2017.[4] The Tribunal would have liked to discuss this with the applicants during the hearing, and put to them its concern about whether this would be a factor discouraging the visa applicant from returning. Unfortunately, by declining the offer of the hearing, and providing no other information for the Tribunal to take into consideration, it has been unable to consider the applicants’ perspective on this matter. The Tribunal considers, on the available country information, that political volatility and security issues in Egypt, in the absence of other information particular to the visa applicant, may be a factor that would discourage her from returning.
[2] DFAT Country Report Egypt 19 May 2017, 3.29-3.33, 3.22
[3] DFAT Country Report Egypt 19 May 2017 , especially paragraph 2.30
[4]
Ultimately, on the limited information and evidence before it, and limited findings the Tribunal has been able to make, 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 first named visa applicant a Visitor (Class FA) visas.
Meena Sripathy
Member

Gunman kills 11 in attacks on Coptic church, Christian-owned shop in Egypt, Reuters, 29 December 2017,

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