2215281 (Migration)

[2023] AATA 543

2215281 (Migration) [2023] AATA 543 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Kourosh Momeni (MARN: 0955242)

CASE NUMBER:  2215281

MEMBER:Alison Murphy

DATE:8 March 2023

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 08 March 2023 at 2:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visit to attend brother’s wedding – employment and business investment in home country – family property management – regular compliant visits of applicant’s parents to Australia – offer of security bond – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 21 September 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 visa applicant applied for the visa on 10 August 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 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 (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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because he did not genuinely intend to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 16 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, [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.

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 is [an age]-year-old male from Iran. He seeks the visa for the purposes of visiting his Australian citizen brother in Australia (his brother being the review applicant). This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. 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)). In this case the visa applicant has never previously held a visa to Australia. He previously applied for a visitor visa in 2018, but that visa application was refused by the Department. Therefore there is no evidence before the Tribunal of any non-compliance with conditions of a previously held visa.

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 (cl 600.612):

    ·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. There is no information before the Tribunal that would suggest that the visa applicant would seek to work, study or engage in training in Australia. The information before the Tribunal does not indicate the applicant is entitled to a substantive visa, other than a protection visa, while remaining in Australia. Therefore the Tribunal is satisfied that the applicant will comply with visa conditions 8101, 8201 and 8531.

13. The Tribunal has also considered all other relevant matters (cl 600.211(c)). As noted in the delegate’s decision, the delegate considered it relevant that the visa applicant may seek to remain in Australia permanently if he is granted the visa. In making that assessment the delegate noted that the applicant is self-employed and had provided limited information about his business. The delegate was not satisfied the applicant had a significant economic tie to Iran. The delegate noted that the applicant had some family ties to their home country, but also has family ties in Australia. The delegate was not satisfied that the applicant’s personal and financial circumstances demonstrated that he genuinely intended to stay in Australia temporarily.

14. At hearing the review applicant told me that he had travelled to Australia as the holder of a student visa in 2007 and had later been granted protection in 2013 on the basis of his conversion to Christianity. The review applicant has not returned to Iran since being granted protection and, but his parents ([named]) visit him here in Australia each year. As at the time of the Tribunal hearing, [the applicant’s parents] were visiting Australia, with their visa conditions allowing a maximum stay of up to 12 months and airline tickets indicating they are booked to return to Iran in May 2023. Movement records indicate they have spent several months each year Australia during most years since 2015 and the review applicant gave evidence that they intend to continue doing so.

15. The review applicant has [number] children and had planned to marry his Australian citizen partner last Christmas in front of his parents and brother, but the planned wedding was postponed after the visitor visa was refused in the hope that the visa applicant would be successful on review and is able to attend the wedding. The visa applicant gave evidence that he himself is engaged to a woman in Iran [named], with whom he has recently celebrated the second anniversary of the commencement of their relationship. She usually lives with her parents but has moved in with the visa applicant at his family home while his parents are in Australia.

16. At hearing the visa applicant and the review applicant gave evidence that the visa applicant will stay with the review applicant and his family during his trip to Australia and also intends to bring about $15,000 cash with him. Consistently with the information provided to the department, the applicant gave evidence that for the past two years he has been employed by a [business], [named], and has more recently become an investor in that business. A financial report from that company list the applicant as a creditor in that business and payslips indicate he earns about 100,000,000 IRR per month (approximately AU$3,585). Bank records from the [named] Bank spanning November 2022 to February 2023 show regular credits and debits to that account. As well as his employment, the visa applicant manages a number of properties for his parents and following the hearing title deeds for five properties were submitted to the Tribunal. On the evidence before it, the Tribunal accepts the applicant has economic and personal ties to Iran.

17. At hearing I discussed with the applicants that DFAT reported US sanctions have had a negative effect on the Iranian economy and more than 10% of working age population were unemployed in 2019, making current economic conditions challenging and emigration strongly desirable for many Iranians.[1] The visa applicant agreed that was the case, but said his own situation was different because of the economic circumstances of his family who had many properties and no need to emigrate. I discussed with the visa applicant DFAT’s advice that the security situation in Iran remains volatile with ongoing conflicts in Iraq, Syria and Yemen and rising hostility between Iran, the US and Israel. As well, DFAT’s current travel update for Iran indicates it is experiencing a period of significant unrest, with ongoing protests across many cities and towns in Iran since September 2022. The visa applicant agreed that information was correct, but said he was not a politically minded person and there were many places he could go to without a visa if he wished to leave Iran. He gave the example of Turkey, where he had visited, knew the culture and could still keep an eye on his parents. He said he was very attached to Iran, where he had invested heavily in his business and where his parents lived. He said he wanted to visit Australia for 2 – 3 weeks to see his brother and meet his brother’s children and fiancé. Both the review applicant and the visa applicant offered to pay significant amounts of money by way of security bonds to ensure compliance with the visa conditions, but the Tribunal has no power to seek such a payment.

    [1] DFAT DFAT Country Information Report Iran 14 April 2020

18. As well as financial and personal ties to Iran, the Tribunal considers the most compelling factor in support the visa applicant’s compliance with the visa conditions relates to the regular travel of his parents between Iran and Australia. The Tribunal accepts that regular visits from his parents are extremely important to the review applicant, who cannot return to visit his family in Iran. At hearing the review applicant gave evidence that he and his brother are devoted to their parents and would never risk their ongoing ability to travel to Australia and see their grandchildren. He said he would not sponsor his brother if he thought for a moment that his brother would overstay his visa and jeopardise the review applicant’s ability to keep sponsoring his parents and that they all clearly understood the situation. As noted above the review applicant has [number] children and his parents have visited for several months almost every year since 2015, excluding those times when Australia’s borders were closed due to COVID-19. There is no suggestion on the material before the Tribunal that the parents have ever breached the conditions of any of the multiple visitor visas granted to them. The Tribunal considers the parents’ favourable travel history is consistent with the evidence of the parties that the visa applicant has no need or desire to leave Iran on a permanent basis.

19. 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

20. 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.

    Alison Murphy
    Member