2215118 (Migration)

[2023] AATA 3622

2215118 (Migration) [2023] AATA 3622 (11 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Amin Farazdaghi (MARN: 1463623)

CASE NUMBER:  2215118

MEMBER:Melissa McAdam

DATE:11 October 2023

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 11 October 2023 at 11:27am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant family visits – family ties in Iran – desire for further family visits – access to financial resources – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 Home Affairs on 8 August 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review applicant was represented in relation to the review.

3. The visa applicant applied for the visa on 2 April 2022. 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.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

   Visa Application

5. The visa applicant is the review applicant’s mother.  The review applicant is an Australian citizen.

6. The following is a summary of the information the visa applicant provided in her visa application:

   a.She is a citizen of Iran.

   b.She wants to come to Australia for up to three months to visit family here.  Her grandchild will be born on around [date] and she would like to be in Australia to support her son and daughter-in-law.

   c.She has not previously been to Australia.  She previously applied for a Tourist visa to Australia in 2018 but was refused.

   d.She is [age] years old, married and lives in Tehran with her husband. Her husband and adult [child] will remain in Iran while the visa applicant travels to Australia.  Her [age] year old mother is in Iran.  She also has a [multiple specified family members] living in Iran.

   e.The visa applicant is a housewife and will fund her travel to Australia.  Her accommodation will be covered by her son and daughter-in-law.

7. With her visa application the visa applicant submitted the following materials:

   -A copy of her expired Iranian passport showing a Schengen visa and entry to [Country 1] in 2002.

   -A copy of the visa applicant’s current Iranian passport.

   -A copy of her bank account statement.

   -A copy of her Iranian Birth Certificate.

   -A copy of her Iranian National ID Card.

   -A Property Title Deed in the visa applicant’s name.

   -A letter of invitation from the review applicant.

   -A doctor’s letter confirming the review applicant’s wife is pregnant.

8. The delegate refused to grant the visa on the basis that the visa applicant has closer personal ties to Australia than to Iran. The delegate also took into account the migration history of the visa applicant’s close family members in Australia. The delegate was not satisfied that the visa applicant had provided sufficient evidence of strong financial, employment and/or personal ties which would demonstrate incentive for her to abide by the conditions of her visa and depart Australia at the end of her authorised temporary stay.

   Information to the Tribunal

   Pre-Hearing Submission

9. On 25 September 2023 the applicant’s representative submitted the following materials to the Tribunal:

   -A recent bank statement for the review applicant’s bank account.

   -A letter from the visa applicant’s husband stating that he and his children have a very good life with the visa applicant. The visa applicant wishes to visit her children and grandchild in Australia and will return home after a short period of time. He will provide for the visa applicant financially during her visit.

   -A written submission by the representative.

10. In the applicant’s written submission he outlines the following:

    …  [The visa applicant] has [specified family members], as well as her husband. While one of her children lives in Australia (the review applicant), her other children and her husband reside in Iran. Her ex-husband, who is the father of the review applicant, passed away in [specified year]. In 2019, she entered into a new marriage and currently resides in Tehran, Iran, with her husband and step-children. [The visa applicant] expresses contentment with her life in Iran and sustains herself financially through a pension payment.

    She desires to visit her son and his family members in Australia and has no intention of
    extending her stay beyond two months.

    In her initial attempt to secure a visitor subclass 600 visa in 2018, her application was
    regrettably declined. The case officer responsible for evaluating the application found it did not
    meet the relevant criteria as stipulated in clause 600.211 of Schedule 2 of the Migration
    Regulations, causing shock and disappointment to both [the visa applicant] and her family.

    Subsequently, the review applicant made another visa application on her behalf for a visitor
    subclass 600 visa. This application was submitted on 14 October 2022, but regrettably, it was
    also refused on 08 August 2022.

    In response to these refusals, the review applicant has chosen to seek a review from the
    Administrative Appeals Tribunal (AAT). He is committed to offering any necessary assurances to the AAT and the Department to establish that his mother's sole intention is to periodically visit him and his family in Australia. It's important to note that [the visa applicant’s] grandchild was born in Australia in [month], following [health issues] experienced by the review applicant's wife, and [the visa applicant] has not yet had the opportunity to meet her grandchild.

    …
    Purpose of visit
    … the sole reason for the applicant's visit is to spend time with her son and his family in Australia. Financially content and satisfied with her life in Iran, she has no intentions of pursuing
    employment or educational opportunities during her stay in Australia. Her strong ties to Iran,
    including her husband and other children, necessitate her return within one to two months,
    making it impossible for her to extend her stay beyond this short period.

    Compliance with past conditions
    ..  It's pertinent to mention that the visa applicant has not previously been in Australia. It is worth highlighting that the applicant has a history of visiting [Country 1] and consistently adhering to all visa conditions, having never overstayed any previous visas.

    Compliance with proposed conditions
    …
    The applicant's firm intention to visit Australia for a period of less than two months is evident in
    both the application and accompanying documents. Her visit is solely for personal reasons, with
    no plans to engage in study or employment during her stay. Importantly, there are no romantic
    or marriage-related motives for her visit, as she is happily married, and she has no intentions of
    pursuing any other visa category while in Australia. Her commitment is to return to Iran before
    her visa expires.

    It is worth emphasizing that the applicant has not faced any adverse experiences or harm in Iran related to her gender, race, religion, political opinion, or membership in any social group. She expresses contentment with her life in Iran, eliminating any need or intention to apply for a
    protection visa in Australia.

    Other relevant matters
    …
    The visa applicant has a consistent source of pension income. She enjoys a close-knit family
    presence in Iran, is [an age]-year-old female, and derives great satisfaction from her life in her
    home country. Her preference is to reside in Iran, where she can freely converse in her native
    language. With a robust network of friends and relatives, she stands on solid financial ground,
    ensuring her financial stability within Iran. Despite challenging economic conditions in Iran, she
    faces no financial hardships.

    It is noteworthy that the case officer, in reviewing this application, took into account the immigration history of the review applicant, who represents the sole family member in Australia.
    It's essential to recognize that the visa applicant's circumstances were different when the review applicant left Iran to come to Australia.

    The visa applicant finds contentment in her current life situation in Iran, harboring no intentions
    of seeking a protection visa while visiting Australia. Her husband, her other child, and two
    step-children will remain in Iran, while she fully intends to return to Iran and resume living with
    her family members before her visa's expiration date.
    …

    Tribunal Hearing

11. The review applicant appeared before the Tribunal on 3 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The following is a summary of the information provided at the hearing:

    a.The visa applicant travelled to [Country 1] to see her cousin who lives there, in about 1381, or about twenty years ago. Since then she has also travelled to [named countries].  She last went to [one of those countries] about two and a half years ago.

    b.The review applicant has travelled to Iran and to Europe since coming to Australia. He went to Iran twice in 2016 and then again in [specified years]. On the first occasion of his return to Iran he went there because his father-in-law had a [specified] operation. The next time was because he wanted to sell his apartment in Iran.

    c.He rang a friend of a friend who checked the airport list and told him his name was not in the list so he knew the risk was not too much.  He travelled on each occasion with his wife and spent time with their families there.  He agreed his recent visits were holiday trips to Iran.

    d.His mother has never had any problems with the authorities in Iran.  The Tribunal put to the review applicant information from his previous review application that his mother was prevented from leaving Iran by the authorities, her passport confiscated, and she was summoned to appear before the Islamic Revolutionary Court. The review applicant responded that this had happened but it related to [another issue] and she was later allowed to travel. She had to report to the police. Her passport was returned and she was allowed to travel.

    e.[Details deleted].

    f.His mother leads a normal life in Iran and has no problems there. She got remarried some years ago.  She is a practicing Muslim and has been to Mecca for pilgrimage. She has had no involvement in protests in Iran.  She totally believes in Islam and wears the hijab. She wants to just visit the review applicant and his wife and her grandchild here.

    g.His mother has no interest in staying in Australia. She doesn’t want to live here.

    h.The review applicant’s wife’s parents have visited Australia and did not overstay their visa.

    i.The review applicant and his wife would like their family members in Iran to continue to be able to visit them in Australia in the future.

    j.The review applicant’s sister also lives in Australia with her husband.  They have been here for about a year. The review applicant has no other siblings but he has some step-siblings in Iran.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting her son, daughter-in-law and grandchild in Australia.  This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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)).  The visa applicant has not previously held a visa in Australia so the Tribunal views this factor neutrally.

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 (cl 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

16. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant and his wife while in Australia. The Tribunal also accepts that she has access to sufficient funds to support herself during a visit to Australia. The Tribunal is therefore satisfied that she does not intend to work while in Australia.

17. There is no evidence or indication that the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

19. The Tribunal accepts that the visa applicant’s husband, siblings and stepchildren are in Iran. The Tribunal considers that the presence of these close family members in Iran represents inducement for the visa applicant to return there. Balanced against this is the presence of both of the visa applicant’s biological children and their families in Australia. The Tribunal considers it likely the review applicant would wish to be with them for more than just a temporary visit.  However there is no indication she would breach Australia’s laws to do so instead of taking advantage of the possibility of repeat future visits. Further, the review applicant and his wife have demonstrated they have no difficulty or problems travelling frequently to Iran to see their families, including the visa applicant there. The Tribunal therefore considers that the visa applicant’s children’s presence in Australia would not induce her to overstay here.

20. The information before the Tribunal indicates that the review applicant came to Australia in 2011 on a student visa. [Details deleted]  He subsequently returned to Iran on several occasions spending several weeks there on most of his visits.  [Details deleted].

21. The Tribunal accepts that the review applicant and his wife would like to invite other family to visit Australia in the future.  The Tribunal therefore acknowledges the importance to them of maintaining a good reputation with regard to their family and relatives’ immigration compliance in Australia. The Tribunal considers this motivation for the review applicant and the visa applicant to ensure the visa applicant complies with her visa conditions and departs Australia before her Visitor visa expires.

22. The Tribunal accepts the evidence that visa applicant has a stable, established and financially comfortable life in Iran and has no apparent economic motivation to live outside of Iran. 

23. In the Tribunal’s view the incentives for the visa applicant to return to Iran outweigh any reasons for her to remain in Australia past the expiry date of a Visitor visa. 

24. 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

25. 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.

    Melissa McAdam
    Member