1834922 (Migration)

[2020] AATA 4809

1834922 (Migration) [2020] AATA 4809 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834922

MEMBER:Jane Marquard

DATE:6 November 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 06 November 2020 at 6:28am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – husband and other children, business and social life in home country – investments in home country and another country – previous compliant travel to other countries – grounds of review applicant’s previous protection visa do not apply to visa applicant – review applicant’s intention to sponsor other family members in future – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222; Schedule 8, Visa Conditions 8101, 8201, 8531

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. The visa applicant is a citizen of Iran aged [age] years old. She applied for a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act) on 12 November 2018.

2. A delegate of the Department of Home Affairs (the Department) refused to grant the visa on 15 November 2018.

3. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

4. At the time the visa application was lodged, 12 November 2018, 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.

   EVIDENCE

5. The Tribunal has before it the application to the Department and the decision of the Department dated 15 November 2018.

6. The applicants provided a significant volume of documents to the Tribunal prior to hearing, which are discussed in the findings below. No hearing was necessary as the Tribunal was able to determine the matter on the basis of the new evidence before the Tribunal

   FINDINGS

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

8. 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.

9. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because there was no supporting documentation before the Department and the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

10. The issue in this case is thus 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.

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

12. 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 visa applicant has not travelled to Australia previously, such that this consideration is not relevant.

13. 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.

14. In considering whether the visa applicant would comply with these conditions, the Tribunal has taken into account the purpose and length of her proposed visit. She is [age] years old, so still of an age when she could work. However she has proposed to visit for only one month, which would make it difficult to study or work, especially as she speaks a different language. The Tribunal is satisfied therefore, taking into account compliance and incentives discussed below, that the applicant intends to comply with Conditions 8101 and Condition 8201. Condition 8503 refers to an entitlement rather than a requirement so is not considered further.

15. Condition 8531 is considered alongside the consideration of whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In considering these issues, the Tribunal has considered other relevant matters (cl.600.211(c)).

16. The Tribunal is satisfied that the applicant genuinely intends to stay temporarily for the purpose for which the visa is granted and that she would comply with visa conditions, for the reasons set out below.

17. Firstly, the Tribunal has taken into consideration the purpose and proposed duration of the visit. The visa applicant wishes to visit her son. It is reasonable to assume that a mother may wish to visit her son living in a different country, and the fact that she has only applied for a one-month visa, does support the contention that the visa applicant genuinely intends a temporary visit only. The review applicant has submitted that he would like his mother to spend time in Australia, to see the country ‘we call home’ and to introduce his mother to his partner. He said that he would like to show her the Jenolan Caves, the Blue Mountains, Canberra, the Snowy Mountains and Lake Macquarie. The visa applicant would also like to visit a paternal uncle who had a heart attack recently. These are all reasonable reasons which accord with a genuine temporary visit.

18. Secondly, the Tribunal has considered incentives to return to Iran at the end of the visit. According to the review applicant, his parents have been happily married for close to forty years. The review applicant submitted that his father is now aged [age] years old, and is dependent on his mother in many ways, and would not be able to live a fulfilling life without her. His parents also have a good relationship with both his brothers in Iran. One is married and the other is engaged. He said that his father is not interested in travelling to Australia, despite the review applicant’s insistence that he come and visit. This is persuasive evidence as it does suggest that his mother would need to return to her husband, who has no interest in travel. A number of family photographs were provided to evidence these relationships. The review applicant also said that his mother is tied to the family, business and social life she has in Iran.

19. The applicants had not provided supporting documents to the Department in regard to incentives to return to Iran at the end of the visit. However a number of supporting documents were provided to this Tribunal. In a Statutory Declaration of the review applicant dated 2 October 2020, the review applicant said that his father and his brother [Mr A] have owned and operated [a] shop for 40 years or so. His mother, the visa applicant has owned and run her own [business] for seven years. She employs four staff. A copy of her business card was provided.

20. The review applicant also provided evidence of significant foreign investments his father and mother have in [Country 1], and property investments in Tehran. They own an apartment in [Country 1] and six other commercial and residential properties in Yazd, Tehran and its outskirts. According to the review applicant, his father’s shop in Tehran CBD is a ‘very high value asset’. His parents and brother use the apartments in [Country 1] for vacations. A number of lease and property ownership documents were provided to corroborate these claims.

21. Statements of bank account balances were also provided for the visa applicant. A Certificate of Deposit from [Bank 1] dated 26 September 2020 showed a balance of USD [Amount 1].  An Account Balance Statement dated 26 September 2020 showed a balance of [Amount 2] Iranian Rials. A Statement from [Bank 2] dated 21 September 2020 for the visa applicant’s husband showed a balance of [Amount 3] Rials. Another statement dated 21 September 2020 for a different account at the same bank showed a balance of [Amount 4] Rials.

22. The Tribunal is satisfied that the visa applicant has significant incentives to return to Iran. Primarily, the fact that her husband lives there and does not want to travel is a significant incentive. However she also has other family in Iran, runs a [business] where she employs four staff and has significant assets.

23. Thirdly, the Tribunal has given some but not significant weight to the fact that the visa applicant has complied with visas in [Country 1], [Country 2] and [Country 3]. While the fact that she has complied with visas in other countries is a positive indication that she may do so in Australia, she has family members in Australia, which makes it a more attractive proposition to wish to reside in Australia.

24. Fourthly, the review applicant has indicated that he would be prepared to provide a security to guarantee his mother’s return at the end of the visit. This willingness does indicate a certainty that his mother will comply with all visa conditions.

25. Fifthly, the Tribunal has taken into consideration in favour of granting the visa the character of the review applicant. He has been living in Australia since April 2009. Prior to this he lived and studied in [Country 4] for two years, and before that he lived in [Country 5] for two years. He said that he has been in a loving de-facto relationship with his [Country 6]/Australian partner for over seven years. They are both Australian citizens.  He said that he owns and operates [a business], which provides [services], and employs four staff.  The review applicant confirmed in his Statutory Declaration that he is ‘fully aware that any breach of visa condition will have devastating consequences on my sponsorship rights and will tarnish my immigration records’. He said that he would like to have the privilege of hosting other family members’ future visits to Australia because he cannot go to Iran with his partner as they are not lawfully married and their relationship is not legally recognised in Iran. He said that he knows how important it is to keep their ‘good records intact’. He said that he knows that if his mother or himself breach any visa or sponsorship conditions, he would lose his sponsorship rights for five years. He said that he would never allow this to happen as his name and record is very important to him. The Tribunal accepts his submissions as it can be expected that he would like to have family members visit him in Australia, particularly as it is more difficult for him to travel to Iran.

26. Sixthly, although the Tribunal took into account negatively in consideration of whether to grant the visa the fact that the review applicant applied for a protection visa during the 2009 political unrest, and there are a number of political, social and economic issues in Iran[1], the Tribunal accepts his mother is in a different situation. In the review applicant’s Statutory Declaration, he said that he applied for this protection visa ‘for reasons that no longer present any threat to his safety’. He said that his parents were also questioned by the authorities over his political activities in 2009 and those of his brother, [Mr A] 11 years ago. In his Statutory Declaration he claimed that ‘these issues have since been resolved and they have not had any adverse interactions with the authorities since then’, as evidenced by the fact that his parents have been able to operate successful businesses in Iran and [Country 1]. The review applicant has also been able to return to Iran on two trips in 2018 and 2019 without ‘facing any trouble’.

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran, 14 April 2020

27. The review applicant submitted that ‘my mother has lodged (individually and combined) four prior visitor visa applications without success. I believe the reason for refusal is grounded in my migration history as I was forced to apply for a protection visa in order to protect my own safety. In my respectful submission, it is not reasonable to conclude that my mother has any intention to seek entry to Australia for any sinister reason of applying for a protection visa as her circumstances are markedly different to those of mine in 2009. My mother is a [age] years old self-employed business owner, married for 40 years, owns significant real estate assets inside and out of the country (two of which in Iran generate additional rental income), has a history of compliant entries to various countries ([Country 1], [Country 2], [Country 7], [Country 5], [Country 8] and [Country 3]), has held and is eligible to hold Temporary Residence for [Country 1] because of her real estate asset ownership, is leaving her husband and two sons in Iran and is not facing any political or religious pressure. Except for international travel history, I shared none of the above with my mother. My mother has no interest in politics and has been able to moderately practice her faith freely and without prejudice since the 1979 revolution’.

28. He submitted that it is not correct to assume that every Iranian visitor visa applicant who has a close family member who applied for protection in Australia contemplates entering Australia and following the same path. He said that his mother has a very good life in Iran, and it could not be matched by anything in Australia. The Tribunal accepts on the basis of these submissions that the visa applicant’s circumstances are different to that faced by the review applicant in 2009 and that the other factors, such as incentives to return, outweigh concerns of her wishing to reside in Australia.

29. Finally, the Tribunal has given significant weight in favour of granting the visa to the fact that two of the review applicant’s maternal cousins (born [Year 1] and [Year 2]) travelled to Australia on a number of occasions between 2018 and 2020, and departed Australia prior to the expiry of their visa in compliance with visa conditions.

    Findings

30. For the above reasons considered cumulatively, the Tribunal is satisfied that the visa applicant intends to comply with Condition 8531 and 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

31. 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.

    Jane Marquard
    Member