Selwanes (Migration)

[2020] AATA 218

Selwanes (Migration) [2020] AATA 218 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Khaled Selwanes

VISA APPLICANT:  Mr Fady Khalil

CASE NUMBER:  1820875

HOME AFFAIRS REFERENCE(S):           BCC2018/2429628

MEMBER:Mary Urquhart

DATE:4 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 04 February 2020 at 2:55pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine intention to stay temporarily, accompanying elderly mother, who has been granted visa – previous compliant travel by applicant, mother and late father – employment, assets and income in home country – no other family ties or strong incentives to return – mother’s mobility problems and review applicant’s ill health – tribunal unable to contact visa applicant – decision under review affirmed

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 Immigration on 27 June 2018 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 6 June 2018. 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 (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 they were not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes of the visa.

5. The review applicant appeared before the Tribunal on 4 February 2020 to give evidence and present arguments. The Tribunal attempted unsuccessfully to take oral evidence from the applicant by telephone from Egypt; some 4 calls being made to his home number.  

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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 Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).

10. The applicant previously visited Australia on a tourist visa arriving on 25 January 2003 and departing on 25 February 2003. There is no evidence of non-compliance with visa conditions. The Tribunal takes this history into consideration whilst noting the visit was some 16 years ago and that his circumstances may have changed since that time.

11. 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

    ·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.

12. The applicant, Mr Fady Khalil Selwanes Khalil, born in Cairo on 30 October 1973 is aged 46. He is an Egyptian national. He declares he has a national identity card issued on 11 September 2012. He declares he has never married. The applicant states in his application his intention to travel to Australia with his mother, Ms Evelyn Fahmy Khalil, born 24 December 1938. The evidence is that the applicant and his mother applied for visas at the same time; the applicant’s mother’s application was granted. The evidence is that due to her age and mobility she is unable to travel alone and has not yet taken up the visa granted to her.

13. The applicant seeks a visit of up to 3 months.

14. The applicant declares his employment as a Chartered Accountant and Tax Expert. He states in his application that he commenced employment with his current employer on 1 June 2017.He has provided a translated copy of a Certificate of employment purporting to be from his employer. The letter is not signed and is not dated. It is not certified as a true copy of any original. The Tribunal gives little weight to the document.

15. The applicant states his trip will be self-funded. He declares he will bring AUD$4000 in cash and that his brother will provide full accommodation and support for his “one month” visit.

16. The applicant has provided bank statements in support of his ability to fund his trip. He claims to have assets being. The applicant has provided a bank statement and term deposit certificate. As well the Tribunal was provided with translated copies purporting to show rental income, and monthly income. The documents regarding assets and income are one page copies, undated and uncertified. No registered or official documents have been provided regarding property. The Tribunal has significant concerns regarding the credibility of the documents, (particularly given Mr Selwanes occupation as a pharmacist- who no doubt has certified documents for others and would have some understanding of the reasons for so doing,)  and raised this at the hearing. It places little weight on the evidence.

17. The applicant has a brother Mr. Khaled Selwanes born 30 January 1966 living in Australia. He is an Australian citizen. He declares he will be provided with accommodation and support by his brother who is a registered pharmacist during his visit.

18. Mr Khaled Selwanes, a registered Pharmacist, is the applicant’s only sibling. He first came to Australia as a Skilled migrant in May 2000. Married Ms Chan-Bopha Selwanes in 2010. He divorced in 2017. They have 3 children. He gave evidence that he is not in touch with his former wife and children. He said he could not even tell the Tribunal the name of his 3 year old son. He does not support the children.

19. The Tribunal notes that the applicant’s brother requested a fee reduction in relation to the application and questioned him about this and in particular asked about the information provided with the request. He gave evidence that due to ill health in 2014 he applied for and was granted a disability pension card. Questioned as to why he did not declare this pension when he requested a fee reduction he responded saying that he gets no cash from it. He said he only received reductions for car registration, utilities, council rates medications. He further explained that this was because he owns a house and a pharmacy. It was his evidence that he would be supporting the applicant but not with cash. He said the applicant would bring his own cash.

20. Mr Selwanes told the Tribunal that the applicant and his mother live together in a rented flat and have done so for many years. Asked why the applicant lives in a rented flat whilst claiming to own property assets including a flat Mr Selwanes explained that he had actually purchased the flat for his brother to pay off. He said the flat they live in is more suitable for a number of reasons.

21. The Tribunal questioned Mr Selwanes carefully as to incentives the applicant has to return home. Mr Selwanes initially responded saying that he could not really know what incentives there might be. He then listed his brother’s job as an incentive. The Tribunal noted the applicant claimed to have been in his job since 2017 and asked what he had done for employment before then. Mr Selwanes was unable to say. His evidence was that their conversations did not include such details.

22. Mr Selwanes said his brother’s properties provided incentive for him to return and that he needs to look after their mother. His father is now deceased and he said they have no other close family; they have lost all uncles and only have a few cousins who are not close. He said he could not think of anything further.

23. Later in the hearing Mr Selwanes referred to an email he sent to the department following the visa refusal. He read from the document. In summary he said his brother the applicant had a stable life and job and owned properties as per documents submitted; his brother had previously visited Australia, complied with conditions and that his circumstances had not changed. He has not seen his brother for a long time. He has only had 2 visits to Egypt since migrating to Australia He said his parents had each visited on 3 occasions and returned home. He said his mother has a conditional visa granted to her but will not be able to travel alone and the applicant would accompany her just as he had accompanied his father to come in 2006.

24. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia with his mother for the purpose of visiting his brother. However the Tribunal is unable to be satisfied that the applicant has sufficiently strong motivations or incentives to return home if granted a visa. His only near relative is his elderly mother now aged 81 who has mobility concerns. The Tribunal has significant concerns that if the applicant comes to Australia and his mother also comes, as is intended, there will be no family ties in Egypt to encourage them to return.

25. The Tribunal notes the claims to property and rental income however such assets are easily liquidated and money can be easily transferred these days. The Tribunal is not satisfied that property assets or money in the bank provide sufficient incentives for the applicant to return home. The Tribunal notes the applicant’s mother already has a visa to visit granted. The Tribunal has considered the applicant’s employment. However there is no evidence to confirm a work history and his own evidence is that he has been employed with his current employer since 2017. The Tribunal notes the applicant is a single man and is of working age.

26. The Tribunal has put some positive weight on the fact that the review applicant's mother has travelled to Australia on three previous occasions since 2009 and complied with her visa conditions as did his late father. As noted above his brother has also visited once before and the review applicant's own migration history is positive. The Tribunal accepts that the visa applicant has no intention of studying or undertaking any training in Australia.

27. However on balance the Tribunal is not satisfied that the applicant genuinely intends a temporary visit in Australia in accordance with the purposes of the visa.

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

29. 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

30. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Mary Urquhart
    Member