1814475 (Migration)

[2020] AATA 4422

1814475 (Migration) [2020] AATA 4422 (7 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814475

MEMBER:Alan McMurran

DATE:7 August 2020

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 07 August 2020 at 12:27pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – visiting Australian citizen sister – strong employment history in Iran – close family and business ties to Iran – travel history in other countries – relationship with review applicant – 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

The Application

1. This is an application lodged 18 May 2018 for review of a decision made by a delegate of the Minister for Immigration on 11 March 2018 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 19 February 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with several 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. The application was constituted to a Member on 16 March 2020.

   Delegate’s decision

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211, because the delegate found that despite being satisfied the visa applicant had provided evidence of his employment, the applicant had indicated he intended to travel to Australia with his spouse and son and leave no immediate family in the country of origin, which might otherwise be an incentive for him to return from Australia. The delegate further found that despite having available assets, those assets were transferable and could be withdrawn, sold or accessed from within Australia and were therefore not an inducement for the applicant to return to his country of origin. The delegate considered the current economic situation in Iran, and when taken into account together with the other factors lead the delegate to conclude that the weight of evidence did not meet the requirement that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

   Background

5. The [visa applicant] is a [age]-year-old citizen of Iran, and the elder brother of the [review applicant]. The visa applicant currently resides in Tehran, where he is employed by [a] Company in a professional capacity and has been in that position [since] July 2014. The visa applicant has not previously been to Australia although he has travelled to other overseas destinations. In support of the application, the review applicant provided a statutory declaration requesting that her brother visit her, his personal bank statement, flight itineraries, passport identification documents and an Iranian employer salary payslip. The visa applicant is married with a [age]-year-old son, whose family and parents reside in Iran. The applicant’s son is enrolled in [a] school in Tehran. The visa applicant had previously been granted a tourist subclass 676 visa to visit Australia in 2012, however, chose instead to travel to [Country 1] and the [Country 2].

6. The review applicant first came to Australia in December 2009 on a [student] visa which was renewed in 2011 and again in 2012. The review applicant was then issued a Bridging visa A [in] November 2012 and a visa Subclass XA-866 [in] July 2013. The review applicant has remained in Australia since that time. On 8 January 2019, the review applicant’s agent wrote to the Tribunal with a priority request, supported by a medical certificate from [Dr A] dated 14 October 2015, stating that the review applicant was diagnosed overseas in or about March 2015 with [Medical condition 1] and was under follow-up and treatment from [Dr B] at [a] Hospital. The medical certificate appears to have been provided in support of a disability support pension for the review applicant. The certificate has been initialled and re-dated by [Dr A] on 21 December 2018, who appears to be a general practitioner practising from [a] Medical Centre. Attached to the agent’s letter was a further letter from a psychologist and psychotherapist, [dated] 16 December 2018 opining that the review applicant suffers from [Medical condition 1] “and severe Depression and Anxiety”. The letter says the review applicant is living on her own and has sponsored her brother, the visa applicant and his family, to visit Australia to support her through her illness and medical condition. The letter was provided in support of an application for expedition, which was not granted. In explaining the refusal for the priority request, the Tribunal indicated there were no special circumstances which would warrant granting priority, where many applications were relying upon providing familial emotional support. The review applicant was invited to update the Tribunal should her circumstances so warrant, pending processing by the Tribunal.

7. On 28 May 2020, pending the hearing on review, the applicant’s agent provided the Tribunal with information concerning the review applicant. The information included a salary statement for the visa applicant dated January 2018, an Iranian national ID card for the visa applicant, his current passport, passport stamps showing travel in 2017, and Australian tourist visa for a 3 month stay granted 12 July 2012. The agent also included a written submission dated 27 May 2020, where the agent submits details concerning previous immigration travel by other family members including the review applicant’s parents, sister-in-law and nephew, that the visa applicant has not seen the review applicant “for a long time”, noting her current medical condition and stating in part that “a short visit with her brother is all she needs to be mentally recovered”. The agent submits the application is genuine, the visa applicant is of good character and prior conduct, has had no adverse visa history in any country and has not travelled to Australia previously. The agent further submits the visa applicant has business ties as an employed [professional] working in Iran since July 2014, that his close family members including his wife and his son will not be travelling to Australia and will remain in Iran, and that he has substantial assets in that country, which although transferable, should not be held against him as reasons for him not wanting to return. On the contrary, the agent submits the visa applicant’s assets enable him to provide for his family and daily expenses as well as savings to support him in his visit. The agent says the Tribunal should not give greater weight to the circumstances of the country, Iran, whose residents have “a statistically higher risk of non-compliance and/or its general condition like the economic circumstances” when considering this visa application, and that greater weight should be given to the other factors and the particular circumstances of the visa applicant.

   Tribunal hearing

8. The review applicant appeared before the Tribunal on 3 August 2020 by telephone in accordance with the Tribunal’s COVID-19 protocol, to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who appeared by telephone from Iran. The applicant’s representative was also in attendance and the Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

9. The applicant did not seek an adjournment or further extension of time to provide any additional information, although being informed that she could do so. The Tribunal outlined its process to the parties appearing, explaining that it stood in the shoes of the decision-maker and must apply the same law, having regard to the submissions made and the information available to the Tribunal. Both the review applicant and the visa applicant said they understood the reason for the refusal and sought to rely upon the matters already presented and their oral evidence outlined below.

   Visa applicant’s evidence

10. The visa applicant understood the visa had been refused because of the economic circumstances in Iran and which meant he was likely to want to stay in Australia. He was asked if he had provided everything for the Tribunal to consider, which he confirmed, and he agreed the matter should proceed. The applicant was asked the purpose of his visit and he responded he was coming to see his sister as he had not seen her for a lengthy period and because she was unwell. He said he had not seen his sister for approximately three years when she last went to Iran in 2017. At about this point the phone connection was lost and the Tribunal continued by asking questions of the review applicant. She confirmed she had been to Iran approximately three years ago and had gone there because she had been advised for health reasons she should meet with her family. She explained this was because she had no family in Australia, was depressed and needed familial support. She said she met with her brother on that occasion. She explained that her diagnosis, [Medical condition 1], was quite serious and that she had been affected from time to time through losing her sight and speech. The communication with the visa applicant was then resumed, and the Tribunal continued with questions for the visa applicant.

11. The visa applicant explained his visa history and said he had been granted a visa in 2012 to come to Australia but declined at the time because of his work commitments. He said that he had visited other [countries] and had always complied with his visa conditions and had not been refused any visa, except for Australia. He said he would travel alone for business reasons, but had also travelled with his family, his wife and son. He said he had been to [Country 2] and [Country 3] with them. He was asked if he planned to come to Australia with his family and he said no “I would travel alone for approximately 2 to 3 weeks”. He said he wanted to come as soon as his visa was granted but understood because of COVID-19, that he may have to go into quarantine for at least two weeks. He was asked if he was close to his sister, which he confirmed, saying there were only the two siblings in his family. He was asked why the review applicant was in Australia, and he responded that she had come here as a student, “liked the place and decided to stay”. The Tribunal asked why the same thing might not happen with him, and he explained that “I have been to [many other countries] and I could have stayed there if I had wanted to leave Iran”. He said the most important aspect of his life or “asset” is his wife and child and his parents who all live and work in Iran. He said, “I will definitely return to Iran because my family ties are there”. He said in terms of the economic situation that he was comfortable and had the financial resources to travel and to lead a successful life. He said he had a good business and no reason to leave Iran and live abroad. He explained he was an [Occupation 1] working in [a specified] industry. About this time the Tribunal terminated the telephone conversation with the visa applicant at the request of the review applicant and continued the hearing with the review applicant on her own.

    Review applicant’s evidence

12. The review applicant confirmed her identity and background description including her present status as an Australian citizen. The review applicant explained that she had just completed her PhD in [Discipline 1] and was preparing for sitting the exam to become [an Occupation 2]. She said she was currently teaching at [a University]. She said that her medical diagnosis had made her living in Australia quite difficult, as much of the time she is affected by the disease and presently survives with the help of a disability support pension. She said she needs her brother as her family member to meet with her and to reconnect with him. She said her parents are unable to travel, as her mother has severe arthritis and her father is a very busy [Occupation 2] in Iran and does not have the time to spare to travel for any period to Australia. She said her family is aware of the diagnosis and expects her brother to be able to come and provide her with some moral support for a short period. She said that the diagnosis occurred in 2015 from her GP, and shortly after she went to Iran where the diagnosis was tested and confirmed. She said that she does not have any other difficulties in Australia and has never been refused a visa or breached any conditions and is now a citizen. She explained that it would be difficult for her to travel to Iran in part because of her health difficulties which has left her less agile. She said she would like the Tribunal to approve a visit for her brother for 2 to 3 weeks when he is able to travel, as they are close siblings and she is relying on him reconnecting with her in Australia.

13. The representative was asked if there were any further submission she wished to make, and she referred to her letter of 27 May 2020. She said the letter provided a summary and overview which was accurate.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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. In the present case, the visa applicant seeks the visa for the purposes of visiting family (his sister). This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

16. 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)). The Tribunal notes that the visa applicant was previously issued a visa to travel to Australia in 2012, but did not take up that opportunity. Other than for the present issue under review, the visa applicant does not have a visa history in Australia and there is nothing to indicate the visa applicant has not been compliant with any previous visa conditions.

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.600.611 (3)) :

    ·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 Tribunal has considered the information available and the fact the visa applicant has a strong employment history in Iran, and no reason to undertake any work in Australia. The review applicant works in an unrelated field to the visa applicant and does not need the visa applicant’s assistance for any work-related tasks. The Tribunal accepts the oral evidence of the visa applicant that his genuine intention is to visit Australia for the purpose of meeting with his sister. The Tribunal finds it is satisfied on the available information that the visa applicant will not engage in study or training while visiting, is not intending to consider any other substantive visa or application and will not remain in Australia after the end of his permitted stay.

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the documentary evidence provided and the oral evidence of the visa applicant, the Tribunal finds he is an established [Occupation 1] working in Iran with a wife and small child. His wife and child are dependent, and the child is currently enrolled in primary education in Iran. The Tribunal further accepts that the visa applicant is closely attached to his family in Iran and has a genuine intention to visit Australia for a short period to meet with his sister before returning to his wife and child. The Tribunal finds the visa applicant’s evidence supports his statements as to his intention, and the fact he has visited other [countries] where he could have remained had he wished to leave Iran permanently. The evidence is that each time he has left Iran he has returned.

20. The Tribunal has also considered the family relationship between the visa applicant and his sister, her current serious health condition and her wish to see her brother, her only sibling. The Tribunal accepts the applicants have a close personal relationship. The Tribunal finds it is satisfied based on these findings and the visa applicant’s close family and business ties to Iran, that these would be incentives for him to return at the end of his visit. Considering these incentives against the alternative of staying in Australia with his sister, the Tribunal finds the weight of evidence supports the view that the visa applicant will return to Iran. The Tribunal has also considered the economic circumstances prevailing, which show that according to the DFAT report of April 2020, the economic circumstances in Iran are acute. The Tribunal is of the view however that the visa applicant has established stable and substantial employment as an [Occupation 1] and is able to support himself and his family without the need to relocate outside the country. The Tribunal accepts that the economic conditions are unstable, volatile and unpredictable, but that in weighing up all the facts and circumstances, these considerations should not weigh against the applicant’s predominant intention to visit his sister. The visa applicant has stated there are no reasons for him to leave Iran due to any political or personal associations or for any other reason. The Tribunal accepts the oral evidence and accordingly has formed the view that it is less likely the applicant will want to remain in Australia than to return to his family and his employment in Iran, particularly as the visa applicant will be travelling without his family.

21. 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

22. 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.

    Alan McMurran
    Member