1728618 (Migration)

[2018] AATA 5010

1728618 (Migration) [2018] AATA 5010 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728618

MEMBER:Moira Brophy

DATE:15 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 October 2018 at 2:54pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) –  genuine temporary entrant criteria – tourist stream – parents and siblings live in Australia –  wishes to spend time with family – multiple visa refusals – previously applied for a permanent visa – incentives to remain in Australia – parents and siblings live in Australia – no carer responsibilities for young children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 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 26 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 30 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 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 the delegate was not satisfied the applicant intended to visit temporarily as given she had previously applied for a permanent visa, and her parents and siblings were all in Australia he was not satisfied there was sufficient incentive for her to return to Iran.

5. The review applicant, [name deleted]appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant [name deleted]and from the father of the visa applicant and review applicant [name deleted]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   Background

7. The visa applicant is [an age]-year-old national of Iran. Her husband and 2 children reside in Iran and according to the application are not accompanying her on her proposed visit to Australia. The remaining balance of her family resides in Australia, including her parents,[and multiple siblings]. The stated purpose of her visit was to visit her family. She is a house wife and is not in paid employment.

8. The review applicant is the younger sister of the applicant. She first arrived in Australia in on [date] October 2003 as a dependent of her mother’s Refugee & Humanitarian visa. She was granted a protection visa on 10 August 2005. She is an Australian citizen.

9. Prior to hearing the review applicant tendered the following documents:

   • Medical certificate of the RA’s pregnancy dated 16 August 2017 (folio 8)
   • Applicant’s bank statement (folio 11)
   • Applicant’s passport (folio 12)
   • Applicant’s Iranian National Identity Card (folio 23)
   • Medical Letter for the applicant’s fathers conditions (AAT folio 19).

10. From the files the Tribunal has prepared the following chronology:

Date	Event
15 May 2007	Applied for Sponsored Family Visitor visa
29 May 2007	Sponsored Family Visitor visa refused
18 April 2008	Applied for Sponsored Family Visitor visa
02 May 2008	Sponsored Family Visitor visa refused
3 May 2010	Applied for Offshore Remaining Relative (BO 115) visa
12 October 2012	Applied for Sponsored Family Visitor visa
18 December 2012	Sponsored Family Visitor visa refused
31 August 2015	BO 115 visa refused
15 October 2015	Applied for Tourist visa
18 November 2015	Tourist visa refused
30 August 2017	Applied for Tourist visa
26 September 2017	Tourist visa refused
17 November 2017	AAT review commenced

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting her parents and siblings. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

3. 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)).

4. The applicant had not previously been to Australia. She has travelled to [another country] where she did a pilgrimage two or three years ago. She has not travelled apart from that. The visa applicant’s history as outlined above was put to the review applicant and she indicated it was an accurate history. Her sister had on six occasions been refused a visa to Australia.

5. On her application form she indicated she wanted to stay for a period of up to three months and to spend the time with her sister and her family and to travel within Australia. The applicant has substantial ties in Australia in that she has her parents, [and multiple siblings]living here with their respective families. She does not have any siblings living in Iran. She lives in Iran with her husband and her two children,  [an age] year old son and an [age] year old daughter.

6. The review applicant indicated at time of hearing that it was her sister’s intention to come to Australia for one month. The visa applicant stated she would visit for one month.

7. 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.

8. The Tribunal accepts from the evidence given by the visa applicant that she is currently not employed and that she has no intention to either work or engage in study or training in Australia. The Tribunal accepts the visa applicant would comply with 8101 and 8201.

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

10. The concern for the Tribunal was, as it was for the delegate, whether there was a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal especially considered the incentives for the applicant to return to Iran at the end of her visit.

11. The Tribunal considered the evidence of the visa applicant as to why she had applied for a visitor visa. She told the Tribunal that she wanted to spend time with her family. Given all her family had been in Australia for some fifteen years the Tribunal accepts that is a valid and understandable wish. Equally the Tribunal accepts the evidence of the review applicant that she wanted to be able to show her sister her new life and have her spend time with and get to know her children.

12. The review applicant gave evidence her parents were not in good health. Her father had last visited Iran in 2016 when he had gone on a pilgrimage. While there he had a heart attack and had been hospitalised and required surgery. Medical evidence provided stated he had the diagnosed conditions of back pain, gout, IHD, diabetes, neck pain with radiculopathy, vitamin D deficiency, joint pain in multiple joints, tennis elbow and GORD. He was in receipt of a disability support pension. He lived with his daughter in a house owned by four of his sons and one of his sons was in receipt of a carer’s pension to provide care to him. His wife lived in another house that was rented with another of their sons. She had varicose veins and required carpel tunnel surgery but did not want to have the procedure. She required another of the sons to assist her in the house and when she goes out and he was in receipt of a carer’s pension to provide that care. The visa applicant said she was conscious of her parents getting older and their health declining. She wanted to be able to spend time with them. She said they were very important to her but not more important than her husband and children.

13. The Tribunal carefully considered the evidence of the review applicant as to how the proposed trip would be funded. The review applicant gave evidence she was not in paid employment and was in receipt of a Centrelink income of $520 per fortnight. Her partner was employed for twenty hours per week and he was paid $359 per week. They lived in rented accommodation for which they paid $450 per week. They had borrowed $49,000 in 2017 to buy a car and their repayments were $660 per month. She also had a Centrelink debt of $7000 which she was repaying by instalments. The Tribunal put to the review applicant that after paying their rent and car payment she and her partner were left with $5 per week to meet all their other costs including utilities and food. The Tribunal put to the review applicant that it might find her evidence as to their income and expenditure to be implausible and that in turn may lead the Tribunal to find she was not a credible witness but a witness who was prepared to tailor her evidence to obtain a migration outcome. The review applicant said she had accumulated savings of $50,000 and that she sometimes had to take from her savings to meet their ongoing living costs. The review applicant said the cost of the trip would not be an issue for the visa applicant as she was ‘rich.’ She said her brothers had their own business and would be able to assist with costs of their sister’s travel to Australia and meet the costs incurred during her stay. The evidence of the visa applicant as to what financial resources she had available to her was limited but she told the Tribunal she had savings and she had jewellery. She described herself as comfortable. She did not own property and was not in paid employment but her husband was employed as a teacher. He was a high ranking Muslim cleric. The Tribunal is satisfied that her asset base is not a strong incentive for her to return to Iran as assets such as jewellery may be disposed of and the sale proceeds transferred.

14. In assessing the incentives for the visa applicant to return to Iran the Tribunal was very aware that in 2010 she had applied to come to Australia as a Remaining Relative. That is a permanent visa. In making that application she had obviously weighed up the incentives for her to remain in Iran and made an assessment the family ties she had in Australia were in fact stronger than those in Iran. Similarly, an informed assessment had been made when her family applied to come to Australia to be reunited with their father but she chose to not come with them at that time.

15. The Tribunal accepts the daughter and son of the visa applicant and her husband reside in Iran. While the Tribunal accepts they may be a supportive and involved family the fact remains the children there are now young adults and the visa applicant does not have child care responsibilities for young children to consider.

16. The Tribunal has taken all the above into account in its assessment of whether there were incentives for the visa applicant to return to Iran at the end of her visit to Australia.

17. Having considered all of the evidence cumulatively, the Tribunal is of the view that the factors that may encourage the visa applicant to remain in Australia are more compelling than the factors that may encourage her to leave Australia. These factors and the Tribunal's concerns in relation to the credibility of the review applicant raise serious concerns in relation to whether the expressed intention for the visa applicant to only visit Australia is genuine.

18. 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

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

    Moira Brophy
    Member