1722844 (Migration)

[2018] AATA 5652

1722844 (Migration) [2018] AATA 5652 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722844

MEMBER:Nora Lamont

DATE:21 November 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 21 November 2018 at 7:40am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visit son and meet his wife – incentive to return to home country – husband and three children in Iran – responsibility in caring for grandson – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 23 September 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 22 August 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 the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

5. The review applicant appeared before the Tribunal on 13 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [the sister and] the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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 her son and attending his wedding. 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 visa applicant] on 22 August 2017 and it was requested that the applicant be able to travel to Australia before 9 December 2017 for her son’s wedding. The application was refused.

11. The delegate refused the visa. The reasons for the refusal are as follows:

    ·Whilst the delegate acknowledged the applicant’s family links in her home country may provide incentive to return and that the applicant wished to travel to her home country this in itself did not demonstrate that the applicant only intends a genuine visit to Australia.

    ·The delegate considered the support rendered by her family, documents provided in support of her application and the migration history of the applicant, but the delegate was not satisfied that the applicant only intended a genuine temporary stay in Australia.

    ·The delegate considered the applicant’s personal circumstances that may encourage her to leave Australia such as her immediate family in Iran, but the applicant had no travel history and this combined with the current economic, security and political issues in Iran the delegate was not satisfied.

    ·The delegate noted the presence of the applicant’s husband and three children who would remain in Iran but whilst this may provide some inducement to return the delegate was not satisfied that their presence sufficiently demonstrates that the applicant intends a genuine visit to Australia.

12. The Tribunal took oral testimony from the review applicant about his plans for his mother’s visit and about the proposed original visit for his wedding. The review applicant is an Australian citizen who arrived by boat in 2010. He has no relatives in Australia to support him. He is a successful [Occupation 1] and supplied the Tribunal with bank details among other documentation. He simply wished for his mother to be at his wedding. The review applicant stated that his mother would stay at his home and that she had some of her own money but that he would be paying for her whilst she was in Ausralia.

13. The visa applicant was interviewed by phone and talked about her longing to see her son and meet his wife, but that she is also responsible for her home, husband and she looks after her [age] year old grandson several days a week. The Tribunal also spoke with the applicant’s daughter who works at a [specified workplace] and she confirmed that her mother is needed back in Iran to care for her [age] year old son whilst she works.

    cl. 600.211(a)

14. 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)).

15. The applicant is a housewife in Iran and has never travelled outside her home country. Whilst the Tribunal gives little weight to this factor, the Tribunal does place weight in the applicant’s favour because the Tribunal has no adverse information to suggest the applicant would not comply with her visa conditions.

16. 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.

17. Given that the applicant does not speak English and does not work outside the home and that her intention is to visit her son and his Australian wife the Tribunal is satisfied that the applicant is not coming to Australia to work or study and given that her husband and three other children and a grandchild she cares for in Iran the Tribunal is satisfied she will not remain in Australia after the end of her permitted stay.

18. On balance, the Tribunal considers that the sponsor’s current circumstances of having no relatives in Australia and no parents, and wanting his mother to visit, despite having missed his wedding to be compelling and credible.

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has regard for current country information about the situation in Iran. However, the Tribunal is satisfied that the applicant has no reason to want to stay in Australia other than temporarily and she has more than enough incentive to return to her husband, other children and grandchild.

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