2305769 (Migration)

[2024] AATA 1084

2305769 (Migration) [2024] AATA 1084 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2305769

MEMBER:Melissa McAdam

DATE:5 April 2024

PLACE OF DECISION:  Sydney

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.

Statement made on 05 April 2024 at 2:01pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – previous compliant travel to Australia by first applicant and other countries by both – established and comfortable life in home country – other child and grandchildren, house and investment property and savings – sponsor’s migration history and importance of good compliance record for future applications by family members – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 3 April 2023 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 21 February 2023. 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.

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.

   Visa application

4. The visa applicants are the parents of the review applicant.  The review applicant is an Australian Permanent Resident.

5. The visa applicants provided the following information in their visa applications:

   a.They are citizens of Iran. [The first applicant wife/mother] was born in [Year] and [the second applicant husband/father] was born in [Year].

   b.They live in Tehran.

   c.They want to visit family in Australia for up to three months.

   d.They have another [child] who lives in Iran.

   e.They have savings and the review applicant will also accommodate and financially support them during their stay in Australia.

   f.[The first applicant] has previously travelled to Australia.

6. With the visa applications the visa applicants provided the following document copies:

   -The review applicant’s Birth Certificate.

   -The review applicant’s NSW Driver’s Licence.

   -The review applicant’s Immi Card.

   -A notification of the grant of a Subclass 200 visa to the review applicant in February 2019.

   -A letter from the review applicant.

   -The review applicant’s payslips.

   -A letter of offer of employment to the review applicant from [Employer].

   -The ABN entry for the review applicant’s business.

   -The review applicant’s bank account statement.

   -The review applicant’s Property Title for property in [Suburb].

   -A contract of sale of property to the review applicant’s husband.

   -The review applicant’s husband’s payslips.

   -A letter from the review applicant’s husband’s employer notifying him of a salary increase.

   -A letter of promotion to the review applicant’s husband form his employer.

   -[The first applicant]’s expired Iranian showing entry and exit stamps to Australia in 2004.

   -The visa applicant’s Iranian Marriage Affidavit.

   -[The first applicant]’s Bank Account statement.

   -[The first applicant]’s Term Deposit Statement.

   -[The first applicant]’s Iranian Birth Certificate, which includes the names of her two children.

   -A property Title Deed in [the first applicant]’s name.

   -[The first applicant]’s Iranian Smart National ID card

   -A letter from [the first applicant].

   -A [Country 1] visa and [Country 1] entry and exit stamps in [the first applicant]’s passport in October 2014.

   -[The first applicant]’s current Iranian passport.

   -A lease contract in [the second applicant]’s name.

   -[The second applicant]’s Bank Account statement.

   -[The second applicant]’s Term Deposit Statement.

   -[The second applicant]’s Iranian Birth Certificate which includes the names of his two children..

   -[The second applicant]’s Pension PaySlip.

   -A property Title Deed in [the second applicant]’s name.

   -[The second applicant]’s Iranian Smart National ID card

   -An [Country 2] visa in [the second applicant]’s passport with several exit and entry stamps to [Country 2].

   -Enty and exit stamps to [Country 3] in [the second applicant]’s passport.

   -[The second applicant]’s Certificate of Military Service Completion.

   -A letter of support from the review applicant’s employer.

7. In her letter the review applicant writes the following:

   I, [the review applicant] as a settled permanent resident of Australia, would like to invite and sponsor my parents, [the first and second applicants] to visit myself and my family in Sydney, Australia. I confirm that I am responsible for compliance by them with all visa conditions. I confirm that they will stay at my house during their visit at the above-mentioned address and I will provide support during their stay. We are living in a 3-bedroom townhouse hence we have sufficient space to have them in our place.

   The reason for visiting Australia
   It’s been around 4 years since the last time we met each other. My [children], alike myself, really missed their grandparents, specially their grandmother as she was taking care of them, we were constantly in touch when we were living at home country, and they have close bonds. She is intending to visit us for a duration of maximum 3 months in which period my [children] can enjoy having their grandma around and feel the sense of having a bigger family for a short period of time.

   Genuine temporary stay
   In my mother’s previous visa application … the officer overlooked the fact that my mother has visited Australia in the past and has complied with the visa conditions. Evidence of such visit is attached to her application. She has also visited [Country 1] once so she has clearly demonstrated that she has always been compliant with visa conditions and intends to comply in
   future.

   In terms of personal circumstances and commitment to return, my parents has another [child] with two kids ([Ages]) who are living together in the same complex building. They have lived in the same area since [the children] born so they have very strong bond and emotional relation with my mother. Moreover, based on my [sibling]’s circumstances, [s/he] needs my mom’s support, and she must return to home country to support her [child] and grandchildren.

   My father also has his brother living close by to whom he has a close bond.

   In terms of their other personal circumstances, they own properties and assets that support their application and intention for return. Their major income and belongings are listed below:

   1. their place of residence which is an apartment unit (estimated value $200,000);
   2. investment property under rent (registered under my father’s name, estimated value ($330,000);
   3. piece of land (registered under my mother’s name) in a premium location at north or Iran
   (estimated value $300,000 AUD;
   4. saving accounts (20% p/a interest) total amount of around $8,000 AUD under my father’s
   name and a total saving of $17,000 AUD under my mother’s name, for which they are earning monthly interest income;
   5. investment in a building project at the value of $10,000 my father’s share and $20,000 my mother’s share;
   6. my father is earning pension income monthly.

   Supporting documents of sponsor
   While my parents have enough financial resources to afford their travel cost while they are staying in Australia, I am attaching the relevant supporting documents to demonstrate my own family’s financial ability to support them during their temporary stay with us. Please refer to below list of documents which are attached to this letter in order:

   1. recent payslip from my employer (main job as [an Occupation 1] in [Workplace]);
   2. employment Contract with [Employer] (casual [Job task 1]);
   3. certificate of ABN (I am doing [services] on a casual basis);
   4. my bank account Statements;
   5. certificate of title for my place of residence;
   6. my husband’s recent payslip and the letter of remuneration review.

   Should there be required, I am willing to lodge a security bond at the value determined by the
   Department of Home Affairs to support this visa application.

   Additional facts and information
   I would like to express some further information and impressions in this section. I have been kindly granted the humanitarian visa by Australian Department of Home Affairs. I have legally and lawfully entered Australia with a Humanitarian Visa subclass 200. I have sought for legal advice after my mother’s previous application was refused. The immigration lawyer has advised me that, while it was evident that the officer overlooked my mother’s previous travel to Australia, because of my background of having the humanitarian visa, (and based on the statistics and cases in the past) it’s very unlikely that the Department of Home Affairs grant a tourist visa to my parent as they would assess their case “high risk”. Hence, the lawyer advised me that he is not optimistic that a new application would positively conclude and is not willing to assist with that.

   We have left our home country about 5 years ago and it was about 4 years ago that we visited my parents. It’s obviously unsafe for us to travel back to home country. My [children] are hoping that their grandma and grandpa may someday come to our place in Australia and spend some time with them, enjoying their company, showing them their school, introducing their friends to them, having them sleep in their room and reading them story at sleep time. They are dreaming for these moments.

   Soon we will have our Persian New Year and my [children] are dreaming of celebrating the new year with their grandparents, receiving new year gifts and hugs. It’s really something that will help them mentally and psychologically.

   I would sincerely request that Department of Home Affairs consider bona fide in my parents’
   application as they genuinely intend to stay for a short period of time in Australia. This visit and family reunion will mean a lot for us and will help us to recover mentally.

8. In her letter [the first applicant] writes the following:

   Previous visa compliance

   I have been granted Australian Visa Subclass 679 on 8 April 2004. The Visa allowed me to
   remain in Australia for 3 months. I entered Australia [in] June 2004 and left Australia [in]
   September 2004.

   I have been granted [Country 1]’s visitor Visa on 15 October 2014. The Visa allowed me to stay 6
   months in [Country 1]. I entered [Country 1] [in] November 2014 and left before the visa expiry date.

   The Evidence of the above mentioned visas are attached to the letter.

   Personal circumstances

   • the presence of close family members in home country: I have my [child] and two
   grandchildren ([Age]) living with us in the same building complex. I have been assisting my [child] with taking care of my grandchildren since they were born and they are highly dependent on me and my husband. We cannot stay away from them for a long period of time and we must return to home country to help my [child].

   • personal belongings:
   i. we own our place of residence (owner occupied) which is an apartment unit. We have not received the official ownership document yet to be translated. The value of this unit is approximately $200,000 AUD;

   ii. we own an investment property (registered under my husband’s name-estimated value $330,000 AUD) which has been rented out and the rent income is depositing monthly to my husband’s account;
   iii. we own a piece of land (registered under my name) in a premium location at north or Iran (estimated value $300,000 AUD). The ownership document is attached to my application. (please note that in Iran, the official value which is recorded in the ownership documents of properties and lands differs significantly from market value);
   iv. saving accounts (20% p/a interest) with the overall amount of around $17,000 AUD;
   v. investment in a building project at the value of $20,000. This is a civil partnership agreement with the builders hence I have not access to an official contract agreement to be translated into English (my husband has invested in the same building project);
   vi. my husband is earning pension income which funds our cost of living.

9. The delegate refused to grant the visa on the basis that the visa applicants did not meet cl 600.211 because they had not provided evidence of sufficient ties or commitments to Iran to demonstrate they intend a genuine temporary stay in Australia.

   Review information

10. [The first applicant]’s movement records held by the Department show that she travelled to Australia in 2004 on a Visitor visa and departed before her visa expired. There were no conditions attached to the visa.

11. The review applicant’s movement records held by the Department show that she arrived in Australia in April 2019 on a Subclass 200 permanent visa and has not departed since.

12. The review applicant provided a letter with the review application which states the following:

    I would like to apply for a merit review of visa refusal notice of my parents. I would request AAT to consider the review of these two refusal notices under one application as these were lodged at the same time and have the same the case circumstances. I am outlining a few points regarding the reason behind my request for merit review as per below. Further explanation and information may be provided in the hearing.

    1)While there are three equal criteria for assessing the application (as per clause 600.211), S65 delegate has given almost no weight to section 600.211(a) i.e. previous visa compliance. Although the applicant’s circumstances have changed since the previous travel to Australia and [Country 1], the fact that the applicant has always been compliant with the visa conditions demonstrates the applicant’s good faith and should have been taken with bona fide.

    2)Regarding section 600.211.(b), the S65 delegate has undermined the presence of my [sibling] with her two children in Iran. In my recommendation letter, which was attached to the visa application, I have explained that my parents are living with my [sibling] and [her/his] family (spouse and two children) at the same complex and my parents are somehow taking care of their grandchildren. Considering the emotional and deep bonding that my parents have with their grandchildren, as they have been together since my nieces were born, S65 delegate should have taken this into account which obviously, he didn’t.

    3)In the refusal letter of my parents, S65 delegate mentioned “noting the presence of their daughter and accompanying spouse in Australia and the current situation in Iran, find this may induce the applicant not to return to their home country at the end of their proposed stay, if visa was to be granted.”. Considering that both visa applications have been refused, there is no accompanying spouse in Australia therefore this reason is not valid.

    4)I applied for a Sponsored family stream to provide a level of assurance for Department of Home Affairs in terms of visa compliance of my parents. It is evident that my circumstances were not considered in assessing the application. Particularly, I would like to reiterate the fact that I have arrived in Australia with Humanitarian visa which was granted to my family due to our circumstances in Iran so we cannot travel to home country to visit my parents. This deprives me from visiting my parents and my children from meeting their grandparents. I mentioned this fact in the supporting documents of visa application.

    I would like to refer to Department of Home Affairs Document VM-3190 “GenGuideH - Visitor visas - Visa application and related procedures,” In this document, S65 delegates “should also take a flexible approach to visitor visa applications made outside Australia by parents of settled Australian citizens…” and also “…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” (Pages 53 and 54). Also “Officers should take a fair and reasonable approach to the genuine temporary stay requirement…” (Page 21) I would like AAT to review flexibility, fairness, and reasonableness of S65 delegate in this case.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

14. 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.

15. In the present case, the visa applicants seek the visas for the purpose of visiting family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

16. 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)).

17. [The second applicant] has not previously held a visa in Australia so the Tribunal views this factor neutrally in respect of [the second applicant].

18. [The first applicant] has previously held a Visitor visa in Australia. According to the Department’s records she did not breach any visa conditions while in Australia and she did not overstay her visa. The Tribunal gives this factor substantial weight in [the first applicant]’s favour.

19. 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.

20. The Tribunal accepts that the visa applicants will be accommodated and supported by the review applicant while in Australia. The Tribunal also accepts that they have access to sufficient funds to support themselves during a visit to Australia.  The Tribunal further accepts that the visa applicants are past retirement age and will be occupied spending time with close family members in Australia. The Tribunal is therefore satisfied that neither of them intend to work while in Australia.

1. There is no evidence or indication that either of the visa applicants has any interest or need to study in Australia. The Tribunal is therefore satisfied they both intend to comply with Condition 8201.

2. Condition 8503 refers to an entitlement and is not a condition which requires compliance.

3. The Tribunal has considered compliance with Condition 8531, and all other relevant matters (cl 600.211(c)), in the discussion below.

4. The Tribunal accepts that the visa applicants’ other [child] and grandchildren reside in Iran. The Tribunal considers that their presence represents substantial inducement for the visa applicants to return to Iran.

5. The Tribunal also accepts that the visa applicants are very close to their [child] and grandchildren in Iran and that they continue to live in the same complex together. The Tribunal further accepts that the visa applicants share responsibility for the care and support of their grandchildren in Iran.  The Tribunal considers that these factors are further inducement for the visa applicants to return to Iran and not remain in Australia past the expiry date of their visa.

6. The Tribunal gives favourable weight to the evidence of past compliant international travel by both visa applicants.

7. There is no indication that the review applicant has breached any visa conditions while living in Australia. The Tribunal gives favourable weight to the good immigration history of the review applicant in Australia.

8. The Tribunal acknowledges that the review applicant would likely wish other family members to be able to visit Australia in the future. It would therefore be important to her and the visa applicants to maintain a good compliance record by the visa applicants, so as not to create difficulties for other family members to obtain visas to Australia. The Tribunal considers this motivation for the review applicant and the visa applicants to ensure the visa applicants comply with their visa conditions and depart Australia before their Visitor visa expires.

9. The Tribunal accepts the evidence that the visa applicants have a stable, established and comfortable life in Iran and have no apparent economic motivation to live outside of Iran. 

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

11. For the above reasons 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.

    DECISION

12. 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.

    Melissa McAdam
    Member