1715551 (Migration)

[2018] AATA 4527

1715551 (Migration) [2018] AATA 4527 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715551

MEMBER:Nora Lamont

DATE:18 September 2018

PLACE OF DECISION:  Melbourne

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 18 September 2018 at 10:50am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – purpose of visit – visit family members – incentive to return to home country – applicant’s travel history – family member’s previous compliance – previous visa refusals – business in home country – personal and business accounts – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, 600.612

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 10 July 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 18 June 2017. 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 (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 it was considered that the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 18 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and from the visa [applicant] in Iran.

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

   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 his brother who is an Australian citizen, along with visiting his wife and their [children]. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

   Background

10. The initial visa application was made by [the current visa applicant] and included in the application was his [wife], his [daughter] and his [son]. The applicants have not previously travelled to Australia.

11. The stated purpose of the visit was to visit his brother and his family and the planned date was 15 July 2017.

12. The application was refused. The decision outlines that the delegate was concerned that with the applicant’s entire immediate family coming to visit the applicant would not have sufficient incentive to return to Iran. The delegate also placed limited weight on the financial documents provided as the applicant could easily sell or transfer funds whilst in Australia. The delegate also noted a previously refused visitor’s visa and noticed that circumstances had not significantly changed since then and this combined with the economic situation in Iran led to the delegate to conclude that the application was not for a genuine visit.

13. The sponsor [arrived] in Australia in 2001 as a refugee. Since that time he has become an Australian citizen. He owns and operates a profitable business and is married with [children]. He has seen his brother two times since 2001 once in 2013 and once in 2018 when they met in [other countries]. The review applicant [has] no other relatives outside his immediate family living in Australia and wishes for his brother to visit.

14. The sponsor and the visa [applicant]’s mother who is a citizen of Iran was previously granted an Australian visitor’s visa, did arrive in Australia and departed after complying with her visa conditions. The applicant’s mother in law a citizen of [Country 1] also was granted a visitor’s visa and complied with the conditions of her visa.

15. The Tribunal has given weight to the applicant’s previous travel to [other places] and also gives weight to the visit by the applicant’s mother in which she abided by the terms of her visa.

16. The delegate in their decision mentioned a previous application for a visitor’s visa which was refused. However, the sponsor explained that they did not load and evidentiary documents into the application and therefore it was refused. The second application was made a few days later when the documents were attached and the applicant explained that they had inadvertently put in the application prior to uploading the documentation. The Tribunal accepts this explanation and does not give the first refusal any weight in their decision.

17. 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.

18. The applicant has given the Tribunal evidence of a business he owns and operates in Tehran Iran. The applicant explained over the phone that he is very busy with projects and therefore would only be in Australia for a few weeks. The applicant also provided bank details from his personal account and the business account, along with a business registration certificate and title to the house where he resides. The Tribunal gives weight to this along with his oral evidence that he has contracts at his business which will see him only being able to come to Australia for a few weeks.  

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has considered relevant country information however; on balance the other aspects of this case outweigh the country information. Both the visa applicant and the review applicant have their own businesses and both have funds in the bank. There was no adverse information presented to the Tribunal and the Tribunal considers the sponsor and the visa applicants desire to see each other and share family time with each other to be compelling and credible.

20. 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

21. 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.

    Nora Lamont
    Member