Okili (Migration)

[2024] AATA 1445

Okili (Migration) [2024] AATA 1445 (6 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ethan Okili

VISA APPLICANT:  Mr Amer Ahmad Arshed Alogiliy

REPRESENTATIVE:  Mr Richard Amhaz (MARN: 1796249)

CASE NUMBER:  2218827

HOME AFFAIRS REFERENCE(S):          BCC2022/2961553

MEMBER:Tania Flood

DATE:6 February 2024

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 06 February 2024 at 10:47am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – substantial compliance with previous visa conditions – intention to comply with visa conditions – wife and children in Jordan – presence of siblings in Australia – owns and operates a supermarket business in Jordan – willingness to pay a security bond – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 17 October 2022 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 30 July 2022. 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.

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 visa was refused on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that he genuinely intends to visit Australia temporarily.

5. The Tribunal did not deem it necessary to conduct a hearing with the review applicant as it was able to make a favourable decision based on the available information. 

6. The review applicant was represented in relation to the review.

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

   Application for the Visitor Visa

8. In the application for the Visitor Visa the visa applicant indicated the following:

   -He is intending to visit his siblings in Australia for a period of 3 months from 20 October 2022 to 19 January 2023.  His brother will support the cost of his travel to Australia and his living expenses while in Australia. 

   -He usually resides in Balika, Jarash.  His wife and two children reside in Jarash and will not be accompanying him to Australia.

   -He has two brothers and a sister residing in Australia.  They are Australian citizens.

   -He owns and manages a supermarket in Irbid, Jordan.

   -He has previously held visas to Australia, China and India.

9. Documentation provided in support of the application:

   -    Non-Criminal Record Certificate issued by the Ministry of Justice, Kingdom of Jordan

   -    A Legacy Argument issued by the Registry of the Sharia Court of the Kingdom of Jordan.

   -    A Commercial Registration Certificate in respect of a Grocery business in Irbid.

   -    A visa grant notice indicating the visa applicant was previously granted a Visitor visa to Australia in 2017.

   -    Copies of passport pages showing various entry and exit stamps and visas to China and India.

   -    Copy of a Family Book issued in the Kingdom of Jordan.

   -    Copy of a Family Civil Status Book of the visa applicant providing data of the head of the family, first wife and two children.

   -    A Rent Contract for a supermarket business for the period 1 August 2020 to 1 August 2025.

   -    A change of name certificate and bank statements for the review applicant.

   -    Copy of the visa applicant’s passport.

   -    A statutory declaration made by the review applicant on 25 July 2022.  The review applicant states that he has the financial means to support his brother’s visit to Australia.  He notes that the visa applicant previously travelled to Australia and abided by the conditions of his visa.  He states that the visa applicant will be leaving behind his partner and children and his business and has no intention to overstay his visa. He indicates a willingness to pay a security bond to facilitate the grant of the visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

12. 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)).

13. The Departments records indicate that the visa applicant was granted a Visitor visa on 19 July 2017.  He arrived in Australia on 15 November 2017 and departed on 13 January 2018, one day prior to the cease date of his visa.

14. 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.

15. The available evidence indicates that the visa applicant is intending to visit Australia for the purpose of visiting his siblings.   The supporting documentation indicates that he owns and operates a supermarket business in Jordan and in any event his brother, the review applicant, has indicated that he is willing to cover the costs of the visa applicant’s travel and living expenses for the duration of the visit.  He provided copies of bank records which indicate he has the financial means to do so.  Based on the available evidence the Tribunal is satisfied the visa applicant will not work or engage in study or training in Australia if he is granted a Visitor visa.  Accordingly the Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if granted the visa.

16. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

17. The visa applicant provided the Department with documentation which supports he is married and has two children aged five and four in Jordan.  There is no information before the Tribunal to indicate that these family members will be travelling to Australia with the visa applicant.  While it is acknowledged the visa applicant’s three siblings are residing in Australia permanently the Tribunal considers his wife and children in Jordan outweigh the presence of his siblings in Australia.  The Tribunal is satisfied that the visa applicant’s family ties in Jordan will act as a strong incentive for him to return home after undertaking a short visit to Australia. 

18. As noted above, the evidence, including a Commercial Registration Certificate and Rental Contract, indicates that the visa applicant owns and operates a supermarket business in Jordan. The Tribunal also considers he has a significant economic incentive to return to Jordan after visiting Australia.

19. The Tribunal notes the visa applicant has travelled to China and India and returned to Jordan.  He also previously travelled to Australia in 2017 and abided by the conditions of his visa.  The Tribunal has placed weight on his previous travels, particularly his compliant travel to and from Australia.

20. The Tribunal has also placed weight on the review applicant’s willingness to pay a security bond in order to facilitate the grant of the visa.

21. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

22. 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

23. 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.

    Tania Flood
    Member