2400386 (MIGRATION)
[2025] ARTA 369
•20 JANUARY 2025
2400386 (MIGRATION) [2025] ARTA 369 (20 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2400386
Tribunal:General Member J Meyer
Place:Melbourne
Date: 20 January 2025
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 20 January 2025 at 11:39am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – no previous visits – family commitments in Iran – substantial assets and employment in home country – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 January 2024 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 4 October 2023. 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.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because they were not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes set out.
The review applicant appeared by video before the Tribunal on 2 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The review applicant was not represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the tourist stream may be granted: cl 600.221 and cl 600.222.
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)). No Australian substantive visa has been held, nor any subsequent bridging visa, thus there is no weight against the applicant here.
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.
The parties made a written submission to the Tribunal which included:
·[Employer 1] payslip for the review applicant (sponsor).
·Recent [Bank 1] bank statement for the review applicant (sponsor) with healthy balance.
·Recent [Bank 2] statements showing the equivalent of hundreds of thousands of Australia in dollars being held by the visa applicant
·Review Applicant’s Statutory declaration.
·Translated insurance payment record.
·Doctor's correspondence confirming visa applicant’s parents’ [specified treatments].
The Tribunal had a significant discussion with the witnesses about the prospect of the visa applicant returning to Iran.
Evidence in the hearing
The review applicant (sponsor)
The review applicant (sponsor) was born in Iran, is aged [age] and came to Australia as a teenager under a student guardian visa. Her [age]-year-old mother, a citizen of Iran, is the visa applicant.
The review applicant (sponsor) successfully applied for a protection visa in Australia.
The review applicant (sponsor) has a boyfriend in Australia. She has been studying while working and intends to work in [her accounting].
The review applicant (sponsor) said her mother was planning to come for sightseeing and a family visit. Her mother is [an occupation 1] in Iran. She has a monthly income of IRR70million. This is around the equivalent of AUD2,675 per month.[1] I conclude from this that she has an above average local income.
[1] According to the local government, the official minimum wage in Iran in 2024 is 53,073,300 Iranian rials per month, which at the current rate is equivalent to 1,260 U.S. dollarsThe Tribunal was told by the review applicant (sponsor) that her stepfather is a retired [occupation 2] who is now [doing specified work]. He is in the private sector and has substantial assets.
The review applicant (sponsor) said she has AUD25,000 in savings of her own.
The family are Shia Muslims. They have not been involved in free speech movements or protests. They are not politically active. The review applicant (sponsor) began her interest in Christianity in Iran. Possibly once a year at Christmas they would go to church in Iran, just to see. The review applicant (sponsor) developed a deeper interest in Christianity in Australia and became a Christian. She told her parents, and she will discuss it with people but is not ‘advertising it’. The rest of her family are not Christian.
Her family background is that her father used to be [an occupation 3] but is now retired. She has an uncle in private enterprise. Her parents divorced in 2019.
Her mother would not apply for protection visa she said. If there is any guarantee needed, she will make it. Her mother loves her husband and he is a nice person and is supportive, the review applicant (sponsor) said. Her mother is looking after the grandparents in Iran as well. Her mother loves her job and does not want to leave it.
Although Iran is not perfect her mother likes living there – it is her home country.
The review applicant (sponsor) is an only child.
The review applicant (sponsor) has been to [Country 1] and also been back to Iran. She felt safe there as a tourist (only in that context). She is now an Australian citizen she said.
The review applicant (sponsor) said her stepfather is a dual Iran and [Country 2] citizen and he can live in [Country 2] at any time. She later submitted a copy of her stepfather’s current [Country 2] passport to the Tribunal. He [does specified work] in Iran.
The visa applicant
The visa applicant is a woman in her [age range] who confirmed that she works as [an occupation 1] and remarried some time ago.
She said that she works in a private company, is [an occupation 1], and earns IRR10m per month. Her employer is not government-linked and it does work for other private companies. She said she had had no issues with the Iranian regime. She is designated as Shia Muslim but does not really follow it.
The visa applicant’s husband is [an occupation 2] and he now [does specified work] in Iran. He is a very successful man she said. He could live in [Country 2] at any time he wanted as he has citizenship there as well. She would be able to accompany him in [Country 2] if he so chose but she has no interest in living there. She later submitted a scan of her husband’s current [Country 2] passport.
Evaluation and findings
From the oral evidence of the parties and the written submissions there is no evidence that persuades me that the visa applicant will work in Australia, engage in study or training in Australia, seek a substantive visa, or remain in Australia after the end of the permitted stay.
Having examined the parties personally I find that on balance the visa applicant has various incentives to return and is a person who would be a temporary entrant to Australia.
I do not discern a desire to migrate to Australia based on her home being in Iran, having an apparently stable life where she is in a mutually supportive marriage and family circle there (medical documents indicated older parents with medical needs). The visa applicant has an apparent interest in her professional work and substantial assets in Iran.
She has personal reasons and incentive to return to her home country including her relationship with her husband. Any motivation to move to a western country could well be expressed in seeking to obtain residence in [Country 2] on the strength of her husband’s dual nationality with that country. That no apparent effort has been made to achieve such an outcome points away from there being a desire to leave Iran.
The purpose of an applicant's visit to Australia is credible, including the proposed duration of stay and intended activities in Australia. The duration is understandable given the circumstances. The review applicant (sponsor) is able to accommodate her for the trip and has the finances to do so.
I accept that the intention of the trip to Australia is to visit Australian family.
There is no evidence of any visa non-compliance from the visa applicant or indeed anyone in the family. There is no evidence of a desire for any other visa, work or study in Australia or a lack of interest in being present for family in Iran. There is a reasonable basis for finding the visa applicant would comply with the conditions stipulated above.
There is no substantial evidence before me to support a contention that the visa applicant will not genuinely intend to stay temporarily in Australia.
The Tribunal has also considered all other relevant matters (cl 600.211(c)). While incomes are higher on average in Australia, it is not apparent that this is a motivator for this visa applicant.
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
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.
Representative for the Applicant: Nil
Date of hearing: 2 December 2024
Salary in Iran in 2024
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0
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