Nasrallah (Migration)

[2017] AATA 3044

Nasrallah (Migration) [2017] AATA 3044 (14 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Maria Samir Fawzy Nasrallah

VISA APPLICANT:  Mrs Amal Samir Azir Soliman

CASE NUMBER:  1713662

DIBP REFERENCE(S):  BCC2017/1819971

MEMBER:Roslyn Smidt

DATE:14 December 2017

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 14 December 2017 at 6:12pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Strong family ties – Well-paying job – Aware of breaches

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 600.211, 600.221, 600.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 13 June 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 22 May 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 she was not satisfied that the applicant intended a genuine visit to Australia.

5. The review applicants appeared before the Tribunal on 7 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicants were represented in relation to the review by their registered migration agent.

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

   BACKGROUND

8. The visa applicant is the review applicant’s mother. The visa applicant applied to come to Australia for a 3 month visit in September 2017 to spend time with her daughter who was about to give birth to her second child. The review applicant has now given birth. The visa applicant wishes to come for a 2 or 3 month visit to spend time with her daughter and granddaughter.

9. The review applicant arrived in Australia in 2012 as a dependent of her husband who held a student visa. Her husband applied successfully for a [different] visa. The review applicant has two young children and does not currently work outside the home. Her husband works as a driver. The review applicant and her husband confirmed that they would provide accommodate and support the visa applicant during her stay in Australia. They also stated that they would be willing to provide a bond in support of the visa applicant’s application.

10. The visa applicant is a 55 year old married woman from Egypt. She provided a letter dated 3 December 2017 from Williams Home and Office Furniture which states that she had worked as a Sales Manager at the Heliopolis Branch of the business since 2008 and earns a monthly salary of 7000 Egyptian pounds. It states that the company is willing to give the visa applicant up to 3 months leave which would include one month paid leave and two months unpaid leave to visit her family in Australia. She also provided character references from priest from the Coptic Church which state that she will return to Egypt at the end of her stay in Australia.  The visa applicant travelled to Malaysia in July 2014 to meet her daughter who travelled to Malaysia from Australia.

11. At the hearing the review applicant stated that apart from her husband and children she has no relatives in Australia. Her parents and two siblings remain in Egypt. Her father is a jeweller. Her brother is 24 years, still lives at home with his parents and has a close bond with his mother. Her sister is married and has a child. She also works long hours and the visa applicant often helps to cares for her after school hours.  The visa applicant also has an older sister who relies on her for support and care. She is also deeply involved with her church and this association is very important to her.

12. The visa applicant confirmed this information.

13. The Tribunal observed it understood that the situation in Egypt may some Coptic Christians fearful about the future and I had some concern that the visa applicant would not return to Egypt within the time specified on her visa. The visa applicant said that she had not faced any problems and she lived a peaceful and normal life in Cairo.

14. The conditions which would the visa applicant would have to comply if her application succeeded were discussed. The applicants were made aware that any breaches of these conditions were likely to impact on the ability of the visa applicant and other members of the review applicant’s family to visit Australia. Both applicants were adamant that the review applicant would not breach any of the conditions on her visa/

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

17. 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 never visited Australia and cannot be assessed against this criterion.

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(2)):

    ·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.

19. There is nothing in the evidence which suggests that the visa applicant would work or study during her proposed two to three months stay in Australia. I am satisfied that she will comply with conditions 8101 and 8201.

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

21. At the hearing the review applicant and the visa applicant provided a convincing account of her the visa applicant’s circumstances in Egypt. The Tribunal is satisfied that the visa applicant’s strong family ties to her husband, children and grandchild provide a strong incentive for her to return home at the end of her stay. The Tribunal also notes that she has held a relatively well paying job with employers for some years and has employers who appear to treat her well. She is also aware that if she breaches this condition it would make it difficult for the review applicant who is alone in Australia to invite or sponsor other family members to visit her in Australia. The Tribunal accepts that these factors also provide a strong incentive for her to return to her homeland at the end of her stay. The Tribunal is  satisfied that the applicant will comply with condition 8531,

22. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  In particular the Tribunal notes that the review applicant arrived in Australia on a temporary visa and obtained residency when her husband [applied for another visa] in Australia. However, the circumstances of this application have no relevance to the visa applicant’s situation.

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.

    Roslyn Smidt
    Member