1825022 (Migration)

1825022 (Migration) [2018] AATA 5338 (18 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825022
MEMBER:Susan Trotter
DATE:18 December 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl.600.211 of Schedule 2 to the Regulations.
·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 18 December 2018 at 11:11am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Sponsored Family Stream – genuine temporary entrant – sponsor is close relative – first tribunal hearing affirmed based on ineligible sponsor – sponsor’s eligibility established in second hearing – sponsor is both son-in-law and nephew – purpose of visit to support daughter at birth of grandchild – strong business and family ties in Iran – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(5)
Migration Regulations 1994 (Cth), rr 1.03, 4.12(4), Schedule 2, cls 600.211, 600.232
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

This is an application for review of a decision made by a delegate of the Minister for Immigration (the Minister) on 16 August 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).
The first-named visa applicant is [an age]-year-old citizen of Iran and the second-named visa applicant is [an age]-year-old citizen of Iran.
The visa applicants applied for the visas on 25 July 2018 and 1 August 2018 respectively. The review applicant in this matter was named as the sponsor of the visa applicants’ visa applications, with his relationship with the visa applicants identified as that of son-in-law.
At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.
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 a 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, and cl.600.232, which sets out the eligibility requirements for sponsors in the Sponsored Family Stream.
The delegate refused to grant the visas on the basis that the delegate was not satisfied that the visa applicants genuinely intended to stay temporarily in Australia as required by cl.600.211. Further, the delegate found that the sponsor of the visa applications, the visa applicants’ son-in-law, was not an eligible sponsor such that cl.600.232 was also not satisfied.
The review applicant lodged an application with the Tribunal on 28 August 2018.
On 29 August 2018, the Tribunal wrote to the review applicant noting the Tribunal’s preliminary view was that the Tribunal did not have jurisdiction to review the application. The letter informed the applicant that the person who is entitled to apply to the Tribunal in relation to the decision is a parent, spouse, de facto partner, child, brother, sister, grandparent, grandchild, aunt, uncle, niece, nephew, step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece, step-nephew, first cousin or second cousin of the visa applicant(s) who is an Australian citizen or permanent resident and whose particulars were included in the visa application. The letter noted that as the review applicant was not such a person, the Tribunal was of the view that his application was not a valid application. The letter invited the review applicant to make any comments on whether a valid application had been made by 12 September 2018.
No response has been received from the review applicant to the Tribunal’s 29 August 2018 letter and, on 18 September 2018, the Tribunal determined that it did not have jurisdiction in this matter on the basis that the review applicant, as son-in-law of the visa applicants, was not a person that was entitled to apply for review to the Tribunal.
On 8 October 2018, the review applicant contacted the Tribunal requesting that it reconsider the position in relation to jurisdiction on the basis that in addition to him being the son-in-law of the visa applicants, he was also their nephew. The review applicant provided the Tribunal with documents evidencing that he was the nephew of the second-named visa applicant by virtue of his father being the brother of the second-named visa applicant. On that basis the Tribunal is satisfied and finds that the review applicant is the nephew of the second-named visa applicant (as regards the first-named applicant, a relative of a member of her family unit – see r.4.12(4) and s.338(5)), the application was therefore properly made under s.347 and the Tribunal does have jurisdiction.
The review applicant appeared before the Tribunal on 11 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, who is the daughter of the visa [applicants].
The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES
Clause 600.211 requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Clause 600.231 sets out the purposes for which a visa in the Sponsored Family stream may be granted.
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated purpose, cl.600.211(a) requires consideration of whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa.
Clause 600.211(b) also requires consideration of whether a visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The mandatory 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 three months;
·     8503 – not entitled to be granted a substantive visa, other than a protection visa, while remaining in Australia;
·     8531 – must not remain in Australia after end of permitted stay.
Clause 600.211(c) requires that consideration also be given to any other relevant matters. Department policy states that relevant consideration of any other matter may include, but is not limited to:
·Personal circumstances
·Credibility
·Purpose and period of stay
·Previous immigration/travel history
·Intel reports and profile.
Personal circumstances
Namely:
·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:
o   ongoing employment
o   the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia
o   property, or other significant assets, owned in their home country and
o   whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance
and
·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:
o   economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia
o   economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.
o   the applicant’s personal ties to Australia, that is:
o military service commitments
o civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.
Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.
Credibility
The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).
Purpose and period of stay
Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).
Previous immigration/travel history
Previous immigration and travel history, such as:
·previous visa applications for Australia
·previous overseas travel, that is, has the applicant travelled to countries other than Australia.
In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.
Intel reports and profiles
Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country. (Note: Even though they are still mentioned on various visitor visa application forms, Modified Non Return Rate (MNRR) statistics should not be used because no quarterly MNRR report has been published on the department’s website since June 2013.)
Officers may request further evidence from the applicant, if considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant’s home country:
·staying in Australia beyond the stay period of their visa or
·having their visa cancelled or
·being refused entry to Australia or
·making asylum claims or applying for a protection visa.
Note: The mere fact that an applicant matches the characteristics of a profile is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant’s circumstances might be required. All applications must be considered on their own merits taking into account all the information and supporting documentation provided by the applicant.
Clause 600.232 provides that to be granted a sponsored family visitor visa that:
(1) One of subclauses (2) to (4) applies.
(2) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and:
(a) a relative of the applicant; or
(b) a relative of another applicant who is a member of the family unit of the applicant; or
(c) a relative of another applicant in relation to whom the applicant is a member of the family unit.
(3) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:
(a) is a member of the Commonwealth Parliament or a State Parliament; or
(b) is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or
(c) holds the office of mayor.
(4) The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.
The definitions in r.1.03 of the Regulations provide that:
relative, in relation to a person, means:
(a) in the case of an applicant for a Subclass 200 (Refugee) visa or a protection visa:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or
(iii) a first or second cousin; or
(b) in any other case:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
Note: Close relative is defined in this regulation: see above.
and,
close relative, in relation to a person, means:
(a) the spouse or de facto partner of the person; or
(b) a child, parent, brother or sister of the person; or
(c) a step-child, step-brother or step-sister of the person.
It follows that the issues to be determined by the Tribunal are:
(a) Do the visa applicants intend to stay temporarily in Australia for the purpose for which the visas are granted, having regard to:
(i)Is the purpose of the visas an allowed purpose for a Sponsored Family visitor visa?
(ii)Have the visa applicants complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?
(iii)Do the visa applicants intend to comply with the conditions to which the visa would be subject? And
(iv)Are there any other relevant matters?
And
(b) Is the review applicant an eligible sponsor of the visa applicants?
CONSIDERATION OF CLAIMS AND EVIDENCE
The review applicant’s evidence to the Tribunal included as follows:
(a) This is the first time in eight years that he has invited a family member to Australia and he did not understand the process when they were making the application so he put son-in-law on the application form but did not realise he should have also identified that he was their nephew.
(b) The main reason that the visa applications have been made is because of the emotional and psychological state of his wife. She had previously suffered a miscarriage whereupon he had immediately sent her to visit her parents because she was emotionally and psychologically adversely affected and she had nobody in Australia here to support her. So when she became pregnant a second time, they sought to bring her parents to Australia to provide more support during her pregnancy and at the time of birth.
(c) Neither of the visa applicants has previously been to Australia. They have only travelled to [Country 1] which was for the purposes of a family reunion for the review applicant, his daughter, his mother and his mother-in-law. He himself could not return to Iran because of his continuing fears in Iran because of his political beliefs (for which he was granted protection by Australia).
(d) In 2009 he and [a number] of his brothers became very involved politically because of the situation that was then unravelling in Iran. They have all since been granted protection by Australia. They did also have concerns for their mother and father and [one] brother who remain in Iran but they themselves did not have political involvement, so did not have the same fear as himself and his other [other] brothers.
(e) The visa applicants have no reason to fear returning to Iran if they visit Australia, for political or other reasons. They have [other] children who live in Iran, and [grandchildren], who would act as significant incentives for them to return. He acknowledged that the presence of his wife, their other child, in Australia might be seen to act as an incentive for them to remain in Australia, but that will definitely not be the case. By way of example, the review applicant stated that there had been differences of opinion between him and his wife and the visa applicants as to how long they could visit for. The visa applicants were saying they would only stay for one to two months and no more whereas he and his wife were asking for at least three months or more if possible (so they put six months on the application). They have grandchildren [in] Iran and they see them at least two times per week in Iran and do not want to be away from them for too long. Their ties to their [children] and their family members in Iran are greater than their ties to one child in Australia.
(f)    Even in recent discussions, the visa applicants do not want to come for as long as he and his wife would like them to come. They are now hoping they would be able to come for the end of his wife’s pregnancy and the birth of their baby (due [date]) and a short time afterwards.
(g) The second-named visa applicant has a business in [Iran]. [Details deleted]. He has regular clients. If he came to Australia to visit he would have to return after too long because he would otherwise lose his regular clients.
(h) The second-named visa applicant also has land in Iran, for which he is awaiting permission for residential development, and he would need to return to further progress those plans.
(i)    The visas applicants would definitely comply with their visas conditions and they are all aware that can impact the prospects of other family members visiting in the future.
(j)    Since being granted protection in 2011 (and subsequently citizenship), he has had three trips outside Australia, twice to [Country 1] and once to [another country], all for family reunions, as he is unable to return to Iran. He was not even able to return to Iran for his wedding. His father acted as his power of attorney for the wedding because of his fear of returning to Iran because of his political activities.
(k)   His wife has suggested to him that she return to Iran for the birth of their child but he wants to be by her side, and cannot be if she is in Iran, so that is why they would like her parents to come to Australia.
(l)    His wife is now a permanent resident and could now sponsor her parents but at the time of the visa application she was not a permanent resident.
The review applicant’s wife’s evidence at hearing included as follows:
(a) She has had discussions with her parents about the length of the visit. Her expectation was six months but because of their commitments back home, they were only staying a couple of months. She had heard of friends’ family members who had been granted visitor visas for six months and that is why she wanted six months but her parents don’t want to be away from home for so long. Her father has constant clients who call him regularly and if he were to stay too long it would jeopardise his relationship with his clients.
(b) She ideally would like her parents to come to Australia to visit before her child is born. She needs the support of her parents like any other girl, particularly in circumstances where she has previously had a miscarriage and it was such a bitter experience. Her baby is due on [date].
Issue 1 – Do the visa applicants intend to stay temporarily in Australia for the purpose for which the visa is granted?
Is the purpose of the visa an allowed purpose for a Sponsored Family visa?
The visa applicants wish to visit their daughter and her family in Australia. The Tribunal is satisfied that this is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.
Have the visa applicants complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?

The visa applicants have not previously travelled to Australia. Therefore, there is no evidence of non-compliance with any previously held visas in Australia.
Do the visa applicants intend to comply with the conditions to which the visa would be subject?
And,
Are there any other relevant matters?
The question as to whether the visa applicants intend to comply with the conditions to which the visa would be subject necessarily also requires consideration of any other relevant matters.
The review applicant expressed his understanding at hearing that the visa applicants have no intention of engaging in work, training or study in Australia and indicated that they have no reason to seek Australia’s protection and that they would definitely be departing Australia before the end of any permitted stay.
The review applicant stated that the visa applicants’ sole intention in visiting Australia was to provide support, emotional and physical, during the final period of their daughter’s pregnancy, at the birth of their grandchild and for a period of time after the birth (with the due date for his wife’s, the visa applicants’ daughter’s, pregnancy being [date]).
The review applicant told the Tribunal that his wife had previously suffered a miscarriage (as evidenced by medical evidence provided to the Tribunal) and that she subsequently was very emotionally and psychologically impacted, requiring the support of her parents. Upon medical advice he immediately arranged for his wife to travel to Iran to obtain support from her parents. He told the Tribunal that his wife is now in the [later stages] of her second pregnancy and is understandably very concerned and emotional and requiring the assistance and support of her parents, particularly her mother, as any girl would. He told the Tribunal that he and his wife had discussed the possibility of her returning to Iran for the birth of their child. However, he himself is unable to return to Iran, as he continues to hold fears for his safety on the same basis as for which he claimed, and was granted, protection in Australia, prior to becoming an Australian citizen, that is on the basis of his political opinion. As he and his wife desire that he be present at their child’s birth, they therefore decided that his wife would remain in Australia for the birth of their child, and instead seek to have her parents visit her in Australia to provide support.
When queried as to how long his parents-in-law wish to visit Australia for, the review applicant stated that he and his wife and his parents-in-law have had different views about the duration of the visit. He and his wife are desirous of them visiting for six months in order to provide extended support to their daughter. However, his parents-in-law have advised them that the longest they would be able to visit for is two to three months because of their commitments in Iran which require them to return after a short visit.
However, the Tribunal also took into account other relevant matters, which it raised with the review applicant and the visa applicants at hearing, that caused the Tribunal to hold possible concerns as to whether the visa applicants do genuinely intend to comply with all of the conditions to which the visas would be subject and do genuinely intend to stay temporarily in Australia for the purpose for which the visas would be granted.
In particular, the Tribunal discussed with the review applicant, as both the son-in-law and nephew of the visas applicants, the circumstances of his presence in Australia and his position as an Australian citizen/permanent resident. The review applicant stated that neither his wife, nor his parents-in-law, have the same fears in Iran as he does as they have not been politically active as he (and [a number] of his brothers who were also granted protection visas in Australia) has been, and continues to be.
The review applicant and his wife gave consistent, but not so identical as to suggest rehearsed, evidence as to the visa applicants’ circumstances in Iran that would act as incentive for them to return to Iran. Further, the evidence as to the planned duration of the visa applicants was consistent and grounded in detail and practicality, to which the Tribunal gives considerable weight.
The Tribunal accepts that the majority of the visa applicants’ family live in Iran with only one of their [children] living in Australia.
Notably, Departmental policy in relation to parents (who are not in the parent migration queue or intending to apply for a parent visa) of settled Australian citizens, permanent residents or eligible New Zealand citizens seeking to visit children in Australia suggests as follows:
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 (refer also to FA-600 stay periods).
The nature of compliant travel is discussed in Compliant travel.
As with queued parents, however, these applicants should be counselled that conditions 8558, 8501 and 8503 will be imposed on their visa.
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.
It is understandable that the review applicant’s wife, who is now a permanent resident, seeks to have her parents with her towards the end of her pregnancy and for the birth of her first child, particularly given her recent miscarriage. However, given the evidence now before the Tribunal, the Tribunal is satisfied that the visa applicants have very significant incentives to return to Iran, including family, work and property connections. The Tribunal is satisfied and finds that the visa applicants intend to comply with the conditions to which the visa would be subject.
Having taken into account all matters, the Tribunal is satisfied that the visa applicants genuinely intend 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.
Issue 2 – Is the review applicant an eligible sponsor of the visa applicants?
Clause 600.232 requires that the visa applicants are sponsored by a person who meets the relationship requirements set out in that clause. The review applicant claims that the visa applicants, in addition to being his parents-in-law, are his uncle and aunt.
As already noted in relation to jurisdiction, the review applicant provided the Tribunal with documents evidencing that he was the nephew of the second-named visa applicant by virtue of his father being the brother of the second-named visa applicant.
Accordingly the Tribunal is satisfied that the visa applicant is sponsored by a settled Australian citizen who is over the age of 18 years and is a relative of the second-named visa applicant. The second-named visa applicant meets the requirements of cl.600.232.
As regards the first-named visa applicant, Tribunal is satisfied that the review applicant is a relative of another applicant (the second-named visa applicant), with the second-named visa applicant being a member of the family unit, that is the husband of, the first-named applicant. The first-named visa applicant therefore also meets the requirements of cl.600.232.
Conclusion
Given the Tribunal has found that cl.600.211 and cl.600.232 are met, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.
DECISION
The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
· cl.600.211 of Schedule 2 to the Regulations.
· cl.600.232 of Schedule 2 to the Regulations.
Susan Trotter
Member

[2018] AATA 5338

18 December 2018

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Immigration

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Judicial Review

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