1732918 (Migration)

[2019] AATA 1364

1732918 (Migration) [2019] AATA 1364 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732918

MEMBER:Frances Simmons

DATE:1 March 2019

PLACE OF DECISION:  Sydney

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 01 March 2019 at 1:37pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting adult children and grandchildren – previous visitor visa application refused – review applicant’s previous protection visa grant – visa applicant of no interest to Iranian government – strong ties to Iran and incentive to return – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 600.211

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 21 November 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 28 October 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 that the visa applicant genuinely intended to visit Australia temporarily for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from 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

   Visa application

7. In her application for a visitor visa the visa applicant declares that she is a citizen of Iran born on [date]. She lives in Tehran with her husband and she has [adult] children, [a number] of whom live in Iran and two of whom are resident in Australia. She applied for the visitor visa for up to three months to visit her daughter, the review applicant, and her son, who is also resident in Australia. She wishes to see her children and support her daughter during her pregnancy. She has no history of paid employment: she raised [her] children and is a housewife.  Her daughter and husband are employed and will provide her with accommodation and support whilst she is in Australia and she can also use her own savings to fund her travel. Evidence of the visa applicant’s identity and savings accompanied her application. The visa applicant disclosed that she had previously applied for a visitor visa in 2014 and that this application was refused.

8. The delegate was not satisfied that the visa applicant met cl.600.211. The delegate noted her visitor visa application had been refused before and her circumstances had not changed. The delegate noted that she wanted to visit her son and daughter in Australia and her daughter was a permanent resident and this might provide her with an incentive to stay. The delegate considered her family ties in Iran and evidence of savings but was not satisfied that the visa applicant genuinely intended to stay in Australia temporarily for the purpose for which the visa would be granted.

   The review application

9. The Tribunal wrote to the applicant requesting further information before the hearing. The review applicant provided written submissions in response as well as additional documentation. The additional documentation submitted by the review applicant includes:

   ·A biodata page of the visa applicant’s current Iranian passport issued [in] 2018 and valid until [2023], a biodata page of her previous Iranian passport including documentation of the visa applicant’s travel to [Country 1] from [August] 2017 to [August] 2017.

   ·[Organisation 1] report dated [November] 2018 outlining the circumstances in which she left Iran, her therapy for post-traumatic stress disorder (PTSD), depression and anxiety, and the psychological benefits a visit from her mother would provide to the review applicant. The review applicant has been a client of [Organisation 1] since 2013.

   ·Birth certificates for the Australian born children of the review applicant and her brother. The review applicant has[children].

   ·Bank statements for the visa applicant from [Bank 1] and [Bank 2] statements for the review applicant as well as documentation of the visa applicant’s property ownership in Iran.

10. An earlier hearing was rescheduled after the review applicant provided medical evidence that she had been unexpectedly admitted to hospital in relation to a surgical procedure. At the hearing on 28 February 2018 the Tribunal took evidence from the review applicant and the visa applicant. Where relevant their evidence is referred to further below.

    Issue on review

11. 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.

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

13. 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)).

14. The visa applicant has not visited Australia before and therefore there is no history of compliance or non-compliance to consider.

15. 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.600.611(2)

    ·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.

16. These conditions were explained to the applicants at the hearing.

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

18. The review applicant[impressed] the Tribunal as a credible, forthright and honest witness. Her evidence was detailed and entirely consistent with the documentary evidence provided to the Tribunal before the hearing and with the oral evidence of her mother, the visa applicant. The Tribunal finds that the review applicant and the visa applicant are credible witnesses.

19. The Tribunal finds that the review applicant is a permanent resident of Australia. She was born in Iran in [year] and she travelled to Australia in 2012 with her husband and her brother.

20. The review applicant was recognised as a refugee by Australia in February 2013 after she arrived in Australia by boat in June 2012. The review applicant was found to be a person to whom Australia owes protection obligations because she faces persecution on the grounds of her political opinion in Iran. She was granted a permanent protection visa and her brother was later granted a temporary protection visa. [The review applicant] and her brother have not returned to Iran.  [The review applicant] lives with her husband, who was also granted a protection visa, and since they arrived in Australia they have had[children].

21. The Tribunal has had regard to the [Organisation 1] report which refers to the circumstances in which the review applicant fled Iran, the ongoing impact of her experiences in Iran on her mental health, the reasons she cannot return to Iran, the difficulties she has faced during her pregnancies, and the psychological benefits that [the review applicant] would derive from a visit to Australia by her mother.  

22. The Tribunal has had regard to country information about the impoverished state of political freedoms and human rights abuses in Iran.[1] The Tribunal acknowledges that in 2013 the review applicant was recognised as a refugee by Australia because she faced persecution on the grounds of her political opinion in Iran.  The review applicant gave detailed evidence about the circumstances in which she fled Iran, why she cannot return to Iran and how her mother’s circumstances are different to her circumstances and those of her husband and brother who also sought asylum in Australia in 2012. When asked whether the visa applicant would be at risk of harm because of the review applicant’s profile, [the review applicant] gave evidence that her family had experienced some pressure from the Iranian authorities in the months immediately after she fled Iran but that this pressure abated after six months and that her parents have not experienced ongoing difficulties in Iran.

    [1] DFAT Country Information Report Iran, 7 June 2018.

23. The Tribunal is satisfied that the situation of the visa applicant is different from the situation of the review applicant. The evidence before the Tribunal is that the visa applicant travelled to [Country 1] in 2017 with her husband for a holiday and returned to Iran without any issue. In oral evidence to the Tribunal the visa applicant stated she has a long and loving marriage and no difficulties living in Iran. She has lived at the same address in Iran for over thirty years. She wishes to see her daughter and son and see her grandchildren. She referred to the health difficulties her daughter has experienced and her desire to support her daughter.  The visa applicant told the Tribunal she had her husband and [a number of] children in Iran and she would return to Iran before the end of her permitted stay to be with her family.

24. The Tribunal accepts that most of the visa applicant’s family reside in Iran and that she has lived in Iran all her life and strong family, social and cultural ties to Iran. The visa applicant is a home maker and the mother of [her] children, [a number] of whom remain in Iran. The Tribunal accepts that the visa applicant has deep family ties in Iran, including her husband, with whom she lives, and [a number of] adult children and [grandchildren] and these family ties will provide a significant incentive for return to return to Iran in compliance with condition 8531.   

25. The Tribunal accepts that the review applicant is [an age] year old woman who raised [her] children in Iran, has no history of paid employment, and does not speak English. In these circumstances, the Tribunal readily accepts that the purpose of her visit is to see her children and grandchildren and not to work. There is also nothing to suggest she wishes to study or engage in training in Australia. The Tribunal accepts that the visa applicant will comply with conditions 8101 and 8201.

26. The Tribunal accepts that the review applicant will provide her mother with accommodation and, if her mother required financial support during her stay in Australia, the review applicant and her husband have the ability to provide such support. In addition to [Bank 2] records provided for  the review applicant, the visa applicant has provided bank statements from [Bank 1], which show she has savings to support her visit to Australia as well as evidence of property ownership.

27. The Tribunal has also had regard to the PAM3 Departmental guidelines which provide specific guidance on visitor visa applications made by parents, typically retired, who wish to visit their Australian citizen or permanent resident children/grand-children in Australia. The Tribunal notes that the PAM3 Guidelines records record that:

    Officers should also take a flexible approach to visitor visa applications made outside Australia by parents of settled Australian citizens; permanent residents; and eligible New Zealand citizens in circumstances where the parents have not yet applied for, or do not intend to apply for, parent migration.

    Officers are encouraged to consider granting parents who have a history of compliant travel to Australia a Tourist stream visa with 3 year travel period, 12 month stay and multiple entry so that the parent can visit their family for longer periods on regular occasions …

28. The Guidelines also state:

    Officers should consider granting a Tourist stream visa with 18 month travel period and 12 month stay to parents who do not have a history of compliant travel to Australia (due to no previous travel history). This provides an opportunity to make regular visits and demonstrate compliance with visa conditions. As in all cases, the applicant would still need to meet the genuine temporary stay requirement and any other relevant requirements. The stay and/or travel period should be reduced if the s65 delegate has concerns about the applicant’s intentions and a shorter visa stay/travel period would address those concerns. If the s65 delegate is not satisfied the applicant intends a genuine temporary stay, the visa must be refused.

29. In this case, the visa applicant has sought to travel to Australia for up to three months. The Tribunal notes that the review applicant gave evidence that she has other family members in Iran she hopes will be able to visit her Australia, most significantly her father, who she has not seen since she fled Iran in 2012, and who she hopes will be able to visit her Australia.  

30. The Tribunal accepts the review applicant is unable to return to Iran and that she wants her father to be able to visit her in Australia and that, in the future, she will also want her mother to be able to visit her on further occasions. The Tribunal is satisfied that that the review applicant is well aware of the potential adverse consequences that non-compliance with visa conditions would have on any future applications by her family members to visit Australia and accepts that the visa applicant wants to establish a history of compliant travel.

31. In the Tribunal’s view, the potential adverse consequences of any failure by the visa applicant to comply with the conditions of the visitor visa will serve as a significant incentive for compliance.

32. 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

33. 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.

    Frances Simmons
    Member