Shehata (Migration) - [2023] AATA 3876

Shehata (Migration) [2023] AATA 3876 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr George Shehata
VISA APPLICANTS: Mr Rafeeq Refaat Tawfeeq Ross
Ms Iriny Gamal Azer Shehata
Miss Lydia Rafeeq Refaat Tawfeek Ross
Miss Nardeen Rafeeq Refaat Tawfeeq Ross

CASE NUMBER:  2214835
HOME AFFAIRS REFERENCE(S):          BCC2022/3672012
MEMBER:Member Nathan Goetz
DATE:6 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision made on 7 October 2022 refusing to grant Visitor (Class FA) visas to Mr Rafeeq Refaat Tawfeeq Ross and Ms Iriny Gamal Azer Shehata, and remits the visa applications back to the delegate for reconsideration with the direction that those applicants meet the following criteria for the grant of the visa:
· cl 600.211 of Schedule 2 to the Regulations.
The Tribunal sets aside the decision made on 7 October 2022 refusing to grant Visitor (Class FA) visas to Miss Lydia Rafeeq Refaat Tawfeek Ross and Miss Nardeen Rafeeq Refaat Tawfeeq Ross, and remits the visa applications back to the delegate for reconsideration with the direction that those applicants meet the following criteria for the grant of the visa:
· PIC 4018 for the purpose of cl 600.213(2) of Schedule 2 to the Regulations.

Statement made on 06 September 2023 at 12:47pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – no previous Australian immigration history – intention to comply with visa condition – other relevant matters – best interests of the applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.213; Schedule 4, PIC 4018
CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicants visitor visas.
BACKGROUND
On 7 September 2022 the visa applicants applied for the visitor visas. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.
On 7 October 2022 the delegate refused to grant the visa applicants the visitor visas.
On 8 October 2022 the review applicant applied to the Tribunal for review of the decisions.
On 21 August 2023 the Tribunal wrote to each visa applicant under s 359(2) of the Act and requested information from them. The information requested is detailed later in this decision record. The letter made it clear that a failure to provide the information requested by 4 September 2023 would result in the visa…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shehata (Migration)

Details

AGLC: Shehata (Migration) [2023] AATA 3876
Case: [2023] AATA 3876
Decision Date: 6 September 2023

CaseChat Overview and Summary

This matter concerned an application for review of decisions made by a delegate of the Minister to refuse to grant Visitor (Class FA) visas to four applicants. The applicants, Ms Iriny Shehata, her husband Mr Rafeeq Ross, and their two daughters, applied for visas under the Sponsored Family stream of the Subclass 600 (Visitor) visa. The delegate refused to grant the visas, and the applicants sought review by the Tribunal.

The primary legal issues before the Tribunal were whether the visa applicants genuinely intended to stay temporarily in Australia, as required by clause 600.211 of Schedule 2 to the Migration Regulations 1994, and whether granting the visas would be in the best interests of the child applicants, as required by Public Interest Criterion 4018 for those under 18. The delegate's refusal was based on the applicants not satisfying these criteria.

The Tribunal considered the applicants' stated intention to visit Mr George Shehata, Ms Shehata's brother and an Australian citizen, and noted a change in their travel plans due to a recent birth. The Tribunal found that the applicants had provided sufficient information and evidence to satisfy the genuine temporary entrant requirement and that the best interests of the child applicants were met. The Tribunal reasoned that the applicants' circumstances, including their family ties in Australia and their proposed travel dates, supported a genuine intention to visit temporarily.

Consequently, the Tribunal set aside the delegate's decisions to refuse the visas and remitted the applications back to the delegate for reconsideration. The Tribunal directed that the adult applicants were to be considered as meeting the criteria in clause 600.211, and the child applicants were to be considered as meeting the criteria in PIC 4018 for the purpose of clause 600.213(2).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of decisions made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicants visitor visas.BACKGROUND On 7 September 2022 the visa applicants applied for the visitor visas. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream. On 7 October 2022 the delegate refused to grant the visa applicants the visitor visas. On 8 October 2022 the review applicant applied to the Tribunal for review of the decisions. On 21 August 2023 the Tribunal wrote to each visa applicant under s 359(2) of the Act and requested information from them. The information requested is detailed later in this decision record. The letter made it clear that a failure to provide the information requested by 4 September 2023 would result in the visa applicant losing the right to appear at a Tribunal hearing. On 22 August 2023 the Tribunal wrote to the review applicant under s 360(1) of the Act and invited him to appear at a Tribunal hearing scheduled for 12nooon on 6 September 2023 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The hearing invitation form made it clear that the Tribunal wished to speak to all four visa applicants. The invitation advised the review applicant that the Tribunal hearing would occur by telephone. The Tribunal was satisfied that a Tribunal hearing by telephone was appropriate in all the circumstances, especially given that the visa applicants were overseas. On 6 September 2023 the visa applicants Mr Rafeeq Ross and Ms Iriny Shehata appeared at the Tribunal hearing by telephone from Egypt, as did the review applicant Mr George Shehata.CONSIDERATION OF CLAIMS AND FINDINGS Four separate visa applications were lodged. They were lodged as part of a group of applications. The visa applicants are identified as Ms Iriny Shehata, a female citizen of Egypt born in that country on 28 April 1984 and presently located there, her husband Mr Rafeeq Ross, a male citizen of Egypt born in that country on 23 April 1983 and presently located there, their daughter Miss Lydia Ross, a female citizen of Egypt born in that country on 1 July 2012 and presently located there, and their daughter Miss Nardeen Ross, a female citizen of Egypt born on 4 July 2016 and presently located there in New Cairo, Al Qahirah. According to the visitor visa application forms, the visa applicants applied for the visas in order to visit Mr George Shehata, an Australian citizen who is the brother of Ms Iriny Shehata. He is the review applicant. The visa applications also indicate a desire for the children of the siblings to meet during the Christmas and New Year period. The visa applicants desire to arrive in Australia on 23 December 2022 and remain until 17 January 2023.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Therefore, the requirements PIC 4018 for the purpose of cl 600.213(2) are met.DECISION The Tribunal sets aside the decision made on 7 October 2022 refusing to grant Visitor (Class FA) visas to Mr Rafeeq Refaat Tawfeeq Ross and Ms Iriny Gamal Azer Shehata, and remits the visa applications back to the delegate for reconsideration with the direction that those applicants meet the following criteria for the grant of the visa:· cl 600.211 of Schedule 2 to the Regulations. The Tribunal sets aside the decision made on 7 October 2022 refusing to grant Visitor (Class FA) visas to Miss Lydia Rafeeq Refaat Tawfeek Ross and Miss Nardeen Rafeeq Refaat Tawfeeq Ross, and remits the visa applications back to the delegate for reconsideration with the direction that those applicants meet the following criteria for the grant of the visa:· PIC 4018 for the purpose of cl 600.213(2) of Schedule 2 to the Regulations.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

On 6 September 2023 the visa applicants Mr Rafeeq Ross and Ms Iriny Shehata appeared at the Tribunal hearing by telephone from Egypt, as did the review applicant Mr George Shehata.CONSIDERATION OF CLAIMS AND FINDINGS Four separate visa applications were lodged. They were lodged as part of a group of applications. The visa applicants are identified as Ms Iriny Shehata, a female citizen of Egypt born in that country on 28 April 1984 and presently located there, her husband Mr Rafeeq Ross, a male citizen of Egypt born in that country on 23 April 1983 and presently located there, their daughter Miss Lydia Ross, a female citizen of Egypt born in that country on 1 July 2012 and presently located there, and their daughter Miss Nardeen Ross, a female citizen of Egypt born on 4 July 2016 and presently located there in New Cairo, Al Qahirah. According to the visitor visa application forms, the visa applicants applied for the visas in order to visit Mr George Shehata, an Australian citizen who is the brother of Ms Iriny Shehata. He is the review applicant. The visa applications also indicate a desire for the children of the siblings to meet during the Christmas and New Year period. The visa applicants desire to arrive in Australia on 23 December 2022 and remain until 17 January 2023. At the Tribunal hearing, the Tribunal was told Ms Iriny Shehata had recently given birth to another child named, Miss Sophia Ross born on 2 September 2023. The Tribunal was told that as a result of this recent birth, the visa applicants would like to travel to Australia in December 2024 and remain in Australia for approximately two weeks to cover the Christmas period. This would give the family time to apply for a passport for Sophia Ross, as well as time to make a visitor visa application for Miss Sophia Ross to visit Australia with the rest of her family in December 2024. The mother and father were refused the visas on the basis that they did not satisfy cl 600.211 of Schedule 2 to the Migrations. This provides the following:600.211 The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:(a)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; and(b)whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and(c) any other relevant matter. Their children were refused the visas on the basis of they did not satisfy PIC 4018 for the purpose of cl 600.213 of Schedule 2 to the Migrations. These provides the following:4018 The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.600.213 (1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.(2)If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.