1926990 (Migration)

[2019] AATA 6607

1926990 (Migration) [2019] AATA 6607 (10 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926990

MEMBER:Rosa Gagliardi

DATE:10 November 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 10 November 2019 at 3:02pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant visiting Australia for son’s wedding – citizenship of Iran – balance of family remains in Iran – willingness to pay a bond – incentive to return to home country – decision under review remitted           

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 24 September 2019 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 30 August 2019. 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 Sponsored Family 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 he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 8 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s partner, [named].  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of attending her son’s, the sponsor’s, wedding. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

10. The applicant is the [age] year old mother of the sponsor, living in Tehran.  She is widowed and has several young unmarried sons living with her, who are working and contributing to the household.  In addition, the applicant’s married daughter is living in the same household and has [children], including [a] baby who the applicant looks after while her daughter and son-in-law go to work.  Additionally, the applicant has other adult children living independently in Iran and the applicant overall has [number] grandchildren living in her home country.  Only her son, the sponsor, lives in Australia.  She has never met her [age] year old grandchild in Australia and is desirous of doing so.

11. The applicant is of Kurdish background.  The sponsor came to Australia by boat and applied for protection on the basis that he was a stateless Kurd in Iran without an identity card and unable to gain citizenship.  The Tribunal expressed concern that if he had escaped Iran for those reasons his mother might be doing so also.  He stated that his mother had evidence of being a citizen of Iran.  She had acquired citizenship only recently and this meant that her other children were now also citizens of Iran.

12. The sponsor and his partner emphasised that they had been together for nine years and had decided only now, when their child was [age] years of age, to marry so that their daughter could participate in the wedding ceremony to be held [in] November 2019.  The sponsor stated that if he wanted to sponsor his mother he could have done so any time prior to now, rather than waiting for his wedding.  He just wanted his mother to be there for him on his important day as otherwise he would not have any family attend.

13. The sponsor also stated that he was having surgery in December 2019 and if his mother were permitted to travel to Australia she could assist his partner and their child while he was recovering.

    cl.600.211(a)

14. 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)).

15. The visa applicant has not travelled to Australia previously, although she may have travelled elsewhere in the Middle East. 

16. The Tribunal notes that the sponsor’s partner’s family from [a named country], including [another country], have all been permitted to visit Australia to attend the wedding.  The sponsor felt alienated that he would have nobody from his family on the important day. 

17. The Tribunal places some adverse weight on the applicant never having been to Australia to demonstrate her bona fides as a genuine visitor, nonetheless, the fact she is only now seeking to travel for an important event would go some way to demonstrating that her visit is event focussed, that is, her son’s wedding. 

    cl.600.211(b)

18. 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.

19. At [age] years of age the Tribunal does not have concerns that the applicant is coming to Australia to work.  The Tribunal accepts that as a widow she receives a modest pension.  Further, the sponsor and his partner gave persuasive evidence that her unmarried sons and daughter who live in her household contribute so that the applicant’s material needs are met.  The Tribunal has sighted a Title deed for the property the applicant lives in.  In addition, evidence was provided by way of a bank statement demonstrating savings in her account.  The Tribunal notes that the statement is in Farsi and has not been translated but the Tribunal accepts that the applicant’s savings are consistent with her modest means.

20. The Tribunal also has no concerns that the visa applicant would be coming to Australia to study long-term. 

21. The Tribunal has seen the evidence to indicate that the sponsor’s mother is not stateless and is a citizen of Iran and that this therefore demonstrates that her circumstances are different to those of the sponsor who came to Australia claiming not to have citizenship rights in his country. 

22. Overall the Tribunal has been persuaded that the applicant will return to her home country because the balance of her family remains in Iran and furthermore, she has two young sons for whom she has responsibility even though they are working.  The Tribunal also places weight on the evidence that the applicant has child minding responsibilities towards her grandchild and is involved heavily in the lives of her other children in Iran.  The sponsor reiterated to the Tribunal that his mother would not want to remain in Australia and be cut off from her broader family.  She also regularly attended the resting place of her late husband.

23. In this case the Tribunal has been persuaded largely by the credibility of the applicant and his partner who wanted to have the applicant at their wedding given that she had missed out on the Christening of their child several years ago.

    cl.600.211(c)

24. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The sponsor stated that he would willingly pay a bond to ensure that his mother returned to Iran giving the applicant a greater incentive to return to her home country on expiry of her visa.

25. For all 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

26. 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.

    Rosa Gagliardi
    Member