Zaki (Migration)

[2018] AATA 1413

Zaki (Migration) [2018] AATA 1413 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hanan Yousif Zaki

VISA APPLICANTS:  Mr Hani Yousif Zaki Tadros
Mrs Erini Heshmat Samos Seidhom
Miss Anastasia Hani Yousif Zaki
Master Macarious Hani Yousif Zaki
Miss Analucia Hani Yousif Zaki
Master Arsanious Hani Yousif Zaki

CASE NUMBER:  1718527

DIBP REFERENCE(S):  BCC2017/1786362

MEMBER:Moira Brophy

DATE:27 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 April 2018 at 9:09am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Seeking to visit family members – Unstable security situation – Primary applicant a young professional – Review applicant hesitant to post a security bond – Tribunal unsatisfied that  there are strong incentives return to Sudan

LEGISLATION
Migration Act 1958 s 65

Migration Regulations 1994 Schedule 2 cls 600.211, 600.612, 600.231

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 applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 19 May 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 (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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied the applicant intended a genuine visit to Australia.

5. The review applicant, Ms Hanan Yousef Zaki appeared before the Tribunal on 16 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant, Mr Hani Yousef Zaki Tadros. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicants seek the visas 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.

10. 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)).

11. The applicant had previously been to Australia in 2008. He stayed for two weeks. He now seeks to return with his wife and four children. His mother was originally included in the application but she passed away last September 2017.

12. On his application form he indicated he wanted to stay for a period of up to three months and to spend the time with his sister and her family and to travel within Australia. The applicant has substantial ties in Australia in that he has his sister, her husband and her five children living here. The review applicant told the Tribunal the visa applicant had never had a visa refused and on his last visit he complied with the visa conditions. She said he had previously travelled to South Africa and he was not able to travel outside Sudan because of his caring responsibilities to members of their extended family. In contrast the visa applicant said he had previously travelled to Hong Kong, Egypt and South Africa. He said his wife and youngest child had travelled with him to Egypt. He had not had a visa refused previously and had always been compliant with their visa conditions.

13. The review applicant indicated at time of hearing that it was her brother’s intention to come to Australia for three weeks. The visa applicant stated he would visit for two weeks.

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 Tribunal discussed with the visa applicant how he would arrange his employment and business interests during his proposed absence. He told the Tribunal he was a salaried officer and was entitled to a period of leave from the university where he was employed. He said he was an Associate professor of Biochemistry and it had been indicated to him he would be promoted to Professor in June. The Tribunal is concerned that while the applicant is employed and earning an income in Sudan his position would not be an incentive to return to Sudan. Severance of this tie could occur with a minimum of difficulty and his professional skill set would be portable.

16. The Tribunal also discussed with the visa applicant how he would arrange his caring responsibilities during his proposed stay in Australia. The evidence of the review applicant was that the visa applicant had caring responsibilities to their brother who had an intellectual disability as a result of his having childhood meningitis.The medical report provided to the Tribunal and dated 12 February 2018 stated Mr Romany Yousif Zaki Tadros had a hearing impediment that affected his speech.  His brother resided with the visa applicant and his family. The review applicant said the visa applicant also cared for two aunts who lived near the visa applicant. The review applicant said the caring responsibilities of the visa applicant were such as to be an incentive for him to return to the Sudan at the conclusion of any stay in Australia. The visa applicant indicated he would be able to retain the services of a carer during his absence from Sudan. In that context while the Tribunal appreciates there is an emotional component to the care given to members of his family the physical aspect of the care could be outsourced and would not be an incentive for him to return to Sudan at the conclusion of his stay.

17. In assessing intention the Tribunal was mindful of the evidence given by the review applicant as to whether she was prepared to post a security bond and if so for what amount. The review applicant gave evidence of owning her own home with her husband and of owning two investment properties, one of which had been recently purchased for $885,000. Her husband was in full time employment as a general practitioner and she worked part time as a pathology collector. They had five children living at home and aged between 15 and 26 years. The visa applicant gave evidence of being in full time employment in the tertiary sector, and of being in a secure position in that he owned his own home outright as well as two other properties that were tenanted. He gave evidence he had US$40,000 in savings. When the review applicant was asked if she would be prepared to post a security bond and if so for what amount she was very hesitant before answering that she would not be in a position to post a security bond. While the Tribunal appreciated that it may be difficult for some people to have ready access to an amount of money for a bond the picture the review applicant painted was of both her and her brother being from very financially secure backgrounds. Her hesitation and subsequent indication she would not be prepared to post a bond was not indicative of a sponsor who had confidence the visa conditions would be complied with.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The country information in respect of Northern Sudan also does not convince the Tribunal that the applicant's life in Wad Medani is a secure and prosperous proposition into the future. The latest advice issued by the Department of Foreign Affairs and Trade Australia, dated 27 April 2016 discusses the country's socio-economic circumstances as well as the security situation. It refers to the ongoing problems arising out of protracted conflicts and the consequent displacement of over three million people in Sudan. Compounding that situation is the high number of refugees coming into Sudan from neighbouring countries such as Ethiopia and South Sudan.

19. The Tribunal finds it difficult to accept that the current situation in Sudan would represent an incentive for the applicant as a professional man with a young family to return there. While the Tribunal appreciates he has assets there those assets are relatively easy to be disposed of to fund resettlement elsewhere.

20. The Tribunal accepts the evidence of the applicant that his wife has family in Sudan and  that she has a very close relationship with her family there. The Tribunal has also considered the visa applicant has a brother and aunts there and that he provides care to these persons. The Tribunal has considered these to be factors providing an incentive for the applicant to return to Lebanon at the end of his stay in Australia.

21. The Tribunal has taken into account the applicant's personal profile, the circumstances of his home country generally, and his home area specifically, but has difficulty accepting that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This is particularly so in the context of the matters previously discussed.

22. For the above reasons, both singularly and cumulatively, 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

23. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Moira Brophy
    Member