1819679 (Migration)

[2019] AATA 6070

1819679 (Migration) [2019] AATA 6070 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819679

MEMBER:Nora Lamont

DATE:25 September 2019

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 25 September 2019 at 7:13am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant withdrew protection application during previous visit – support for review applicant’s family – family commitments in Iran – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 28 May 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 21 May 2018. 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 applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 24 September 2019 to give evidence and present arguments. 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 daughter. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).

10. The visa applicant was granted a visitor’s visa in 2016 and came to Australia. She did then apply for a protection visa but withdrew the application and departed Australia before the expiry of her visa. The Tribunal shared its concerns about this with the applicant. The applicant said she had some trouble with her husband but he told her to come back to Iran and she did. She said she had no intention of living in Australia and she regrets that he put in the application. While the Tribunal has concerns the Tribunal is satisfied given the evidence below that the applicant would abide by the conditions on her visa and return to Iran.

    Background

11. The review applicant arrived by boat in 2011 with her then husband. She stated at the hearing that she did not want to come to Australia and that she liked her life in Iran. None the less after arriving they were granted permanent residency. Her husband was abusive and after having [number] children the marriage ended. The applicant became a single mother with [number] small children. This is when her mother came to support her in 2016.

12. The applicant has since remarried had [a further] child and is pregnant with [another] child. The applicant is isolated as apart from her husband she has no immediate family. She cannot return to Iran and her husband works and is gone for long periods of time.

13. The applicant suffers from a mental health condition and has been under the care of a Doctor. The applicant supplied the Tribunal with a letter from the Doctor outlining her condition. During the Tribunal hearing the applicant was agitated and crying. Her husband has flown out to Iran leaving her alone in the home with [number] children and one on the way with no support. The applicant needs the support of her mother at this critical time.

14. The visa applicant’s mother is in a nursing home in Iran and the visa applicant is her provider and pays for her care, visits etc. In addition, the visa applicant’s husband is [age] years old and suffering from a [health] condition.  She has [specified family] in Iran. These conditions at home and the evidence given satisfy the Tribunal that the applicant will abide by the conditions of her visa and that she will return to Iran at the end of her visa validity. 

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:

    ·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. The Tribunal is satisfied the applicant will not work or engage in study and will return to Iran at the end of her permitted stay.

17. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The review applicant is in need of family support as she was in the past and requires her mother to come and assist her. Despite the concerns of the Tribunal of the visa applicant’s past history of applying for protection, the Tribunal is satisfied the applicant is a genuine visitor.

18. 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

19. 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