1822293 (Migration)

[2019] AATA 6137

1822293 (Migration) [2019] AATA 6137 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822293

MEMBER:Nora Lamont

DATE:25 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 September 2019 at 7:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family migration history – illegal arrival in Australia of review applicants – no family members remaining in Iran – family business in Iran – decision under review affirmed     

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222; Schedule 8 Condition 8101

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 3 June 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 25 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 the applicant genuinely intended to stay in Australia temporarily.

5. The review applicants appeared before the Tribunal on 24 September 2019 to give evidence and present arguments.

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

   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 parents and her [sibling]. 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 applicant has no travel history and therefore the Tribunal has not been able to be satisfied that the applicant does genuinely intend to stay in Australia temporarily.

11. 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.

12. Given the discussion below and the evidence given the Tribunal cannot be satisfied that the applicant work abide by the conditions on her visa.

    Background

13. The review applicant arrived in Australia with his wife and [child] in 2011 by boat and were granted permanent residency. Their remaining daughter stayed in Iran. She is married with children. The intended visit to see her parents and her [sibling] whom she has not seen for many years. She intends on coming to Australia with her husband and children.

14. Whilst the Tribunal is mindful of family reunification the fact that the applicant intends to come with her husband and children leaving no family behind in Iran as incentive to return is of concern to the Tribunal and the Tribunal cannot be satisfied that the applicant genuinely intends to stay in Australia temporarily.

15. The Tribunal queried the review applicant as to why his daughter could not come alone or with her children leaving her husband in Iran he stated that it was too far for her to travel on her own. Whilst the Tribunal agrees it is a long way, the Tribunal cannot be satisfied that the applicant would have incentive to return to Iran.

16. The applicant works selling [products] and her husband has a [different product] business. The Tribunal notes that they have a business and that financial records were provided. However, the Tribunal has given little weight to these factors as they are transferable and do not indicate an incentive to return.

17. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has taken into consideration that the applicant is the last remaining relative in Iran and the Tribunal is mindful of the family’s migration history. The applicant has also had a previous visa refused and these factors weigh against the applicant.

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.

    Nora Lamont
    Member