2401083 (Migration)

[2024] AATA 2549

2401083 (Migration) [2024] AATA 2549 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Olia Kamereddine

CASE NUMBER:  2401083

MEMBER:Member Nathan Goetz

DATE:28 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision dated 23 December 2023 refusing to grant the visa applicant a Visitor (Class FA) Subclass 600 visa and remits the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies the following criteria for the grant of the visa:

·cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth).

DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) (the Act) in relation to this review that information that would identify the any applicant or their family members must not be published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about a protection visa application (noting a number of provisions in the Act restrict publishing material that identifies protection visa applicants: e.g., ss 91X, 431 and 501K).

Statement made on 28 June 2024 at 1:00pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – previous compliant family visits – Coptic Christians in Egypt – desire for further family visits – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 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 merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.

   BACKGROUND

2. On 3 October 2023 the visa applicant applied for the visa. 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 visa 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).

4. On 23 December 2023 the delegate refused to grant the visa applicant the visa. The delegate found that the visa applicant did not satisfy cl 600.211 of Schedule 2 to the Regulations. This provides the following:

   The (visa) applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)whether the (visa) applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)whether the (visa) applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)any other relevant matter.

5. The delegate decision record does not detail the conditions that would be imposed on the visa if granted. In the circumstances of this visa application, cl 600.612 of Schedule 2 to the Regulations is applicable because the visa is in the sponsored family stream. This provides that the following conditions must be imposed:

   8101:   The holder must not engage in work in Australia.

   8201:While in Australia, the holder must not engage, for more than 3   months, in any studies or training

   8503:The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

   8531:The holder must not remain in Australia after the end of the period of stay permitted by the visa.

6. On 24 January 2024 the review applicant applied to the Tribunal for review of the decision.

7. The applicants were represented in the review by an Australian legal practitioner.

8. On 20 June 2024 the Tribunal wrote to the review applicant and invited her to appear at a Tribunal hearing scheduled for 24 June 2024 at 10:00am by MS Teams. The Tribunal indicated that it also wished to have the visa applicant provide the Tribunal with oral evidence.

9. On 24 June 2024 the review applicant and the visa applicant appeared at the Tribunal hearing. The representative also attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this review is whether the visa applicant satisfies cl 600.211.

11. If the Tribunal finds that the visa applicant satisfies cl 600.211, the correct or preferable decision is to set aide the decision of the delegate refusing to grant the visa, and remit the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies cl 600.211.

12. If the Tribunal finds that the visa applicant does not satisfy cl 600.211, the correct or preferable decisions is to affirm the decision under review.

13. The Tribunal considered all the material relevant to the visa application and the review application.

14. According to the visa application form, the visa applicant is a female citizen of Iran who was born in that country on [date] and is presently located in that country.

15. She detailed that the purpose of her visit to Australia was a family visit. She wished to enter Australia on 30 September 2023 and depart on 1 February 2024, indicating that she wished to be in Australia [in] October 2023 for her daughter’s engagement party. When the review was lodged with the Tribunal, it was submitted that the visa applicant now wished to be in Australia to attend her daughter’s wedding scheduled for [August] 2024. The Tribunal was provided with a booking for [Venue 1] in Brisbane that day. The visa applicant told the Tribunal that attending her daughter’s wedding in Australia was the only purpose of her visit to Australia. The Tribunal was provided with confirmation that a deposit of $1,000 had been paid to secure the venue.

16. In the visa application form, the visa applicant detailed that she was not travelling to Australia with any other person. She identified her non-accompanying family members as:

    ·     Her mother, [named], who was born on [date] in Iran. At the Tribunal hearing, the Tribunal was told that this person continues to reside in Iran.

    ·     Her father, [named], who was born on [date] in Iran. At the Tribunal hearing, the Tribunal was told that this person continues to reside in Iran.

    ·     Her brother, [named], who was born on [date] in Iran. At the Tribunal hearing, the Tribunal was told that this person continues to reside in Iran.

    ·     Her sister, [named], who was born on [date] in Iran.. At the Tribunal hearing, the Tribunal was told that this person continues to reside in Iran.

    ·     Her sister, [named], who was born on [date] in Iran. At the Tribunal hearing, the Tribunal was told that this person continues to reside in Iran.

    ·     Her fiancé, [named], who was born on [date] in Iran. In Iran. At the Tribunal hearing, the Tribunal was told that this person continues to reside in Iran and that he has been the visa applicant’s romantic partner since 2019 and that they have been married since 2022 and live together in Iran.

    ·     Her nephew, [named], who was born on [date] in Iran. At the Tribunal hearing, the Tribunal was told that this person continues to reside in Iran.

17. In the visa application form, the visa applicant declared her contacts in Australia to be:

    ·     Her daughter, [named], who was born on [date] and is an Australian citizen. She is the review applicant and the sponsor for the visa. Included with the visa application was an Australian citizenship certificate issued [in] April 2023. Department records demonstrate that the review applicant first came to Australia as a dependent on a [temporary] visa [in] June 2015. That visa ceased [in] May 2019. On 11 February 2020, the review applicant applied for a protection visa and this was granted on 12 April 2021. The review applicant subsequently became an Australian citizen [in] April 2023.

18. At the Tribunal hearing, the review applicant told the Tribunal that she came to Australia with her father on the [temporary] visa and that her parents divorced prior to the visa applicant and her father coming to Australia. Her father has subsequently married in Australia and that her father was not put down as a contact in Australia because the visa applicant and him are not in regular contact.

19. At the Tribunal hearing, the review applicant told the Tribunal that her mother and father divorced before the review applicant and her father, who was granted the [temporary] visa, came to Australia. The Tribunal was told that while she was in Australia, she converted religion from Islam to Christianity about two or three years after her arrival and applied for protection. She told the Tribunal that the visa applicant was aware she had changed her religion, and that her father was a Christian convert as well. She told the Tribunal that she had not returned to Iran because of her religious conversion. She noted that her most recent travel out of Australia in August 2024 was to [Country 1]. The review applicant provided the Tribunal with a copy of her protection visa application and there is nothing in that application to suggest that the visa applicant was subjected to harm in Iran because of the review applicant’s conversion to Christianity.

20. The Tribunal was told that the reason the review applicant’s father was not detailed as a contact in Australia in the visa application form was because her mother and father were divorced and although they are civil, they are not in regular contact. The review applicant lives with her father, but she described a busy work life where they do not get to see much of each other.

21. The review applicant told the Tribunal that she had not yet lodged a Notice of Intention to Marry, but had sent out wedding invitations. The Tribunal was provided a copy of an invitation. She indicated that a ‘pastor’ was going to marry the review applicant and her fiancé at [Venue 1]. She described the gathering as a small one with family and friends. She confirmed that the engagement party, which was originally the purpose of her mother visiting Australia, went ahead as planned and occurred at her family home. The Tribunal was provided a photo of the engagement party.

22. The Tribunal was provided with a letter from [Pastor A] of [Church 1] indicating that he first met the review applicant and her father in 2021 and met the review applicant’s fiancé in 2023. The Revered was informed around August of 2023 that the review applicant and her fiancé intended to hold their wedding once the visa applicant’s visa had been approved and that arrangements had been made to meet on [date] July 2024 to complete the Notice of Intention to Marry documents.

23. The review applicant confirmed that her mother was aware of her religious conversion and was unhappy that this resulted in the review applicant no longer being able to return to Iran, but otherwise was supportive of the review applicant’s own choice. The review applicant did not plan to take the visa applicant to Church with her in Australia because the visa applicant does not attend Church services at the moment because she was busy with work and study. The review applicant observed her religion by ‘doing her own stuff in her own time’ which the Tribunal understood to be prayer and reading the Bible privately. The review applicant told the Tribunal that she was prepared to provide a security in the sum of $20,000 for the grant of the visa if required by the delegate.

24. The Tribunal was told that the review applicant was born a Muslim in Iran but converted to Christianity after arrival in Australia which was the basis for her protection visa application. She told the Tribunal that she had not returned to Iran since her religious conversion and that her most recent travel in August 2023 was to [Country 1] for business. She also told the Tribunal that her father also converted to Christianity and applied for a protection visa subsequent to the review applicant. The review applicant has not travelled to a third country to see the visa applicant because of her employment requirements in Australia.

25. The review applicant told the Tribunal that the visa applicant was aware of her religious conversion and was not happy about it because it meant that the review applicant could not return to Iran, but was supportive of the review applicant’s personal choice. The visa applicant has never expressed any interest in converting to Christianity to the visa applicant and the review applicant thinks that if the visa applicant wanted to do so, she would have discussed it with her. The review applicant does not plan to take the visa applicant with her

26. In the visa application form, the visa applicant declared that she is self-employed in [Occupation 1] with [Agency 1]. She has been employed since 6 May 2019 and works at [a named location in] Tehran, Iran. The applicant provided a copy of a document in a language other than English with an accompanying English translation that is identified as a business registration of the visa applicant’s [Occupation 1] business in Iran.

27. In the visa application form, it was indicated that the visa applicant’s stay in Australia will be self-funded and that the visa applicant is a business owner in Iran so she can provide her own funds. It was also detailed that the review applicant in Australia, as well as the review applicant’s father would also assist the visa applicant financially as they are business owners in Australia. The business ABN was provided and according to the sponsorship form, the review applicant is a manager at [Employer 1].

28. In the visa application form, the review applicant provided a confirmation of bank account from [Bank 1] indicating that the review applicant had over $24,000 in an account held in her name as of 3 October 2023.

29. In the visa application form, the visa applicant declared that she had travelled to [Country 2] for 4 days in September 2021. The visa applicant also provided a copy of a [Country 3] visa issued to the visa applicant on 6 May 2013.

30. In the visa application form, the visa applicant declared her understanding that she would not be permitted to work on the visa if granted. She also declared that she did not intend to study during the visa, agreed to leave Australia on or before the expiration of the visa, and indicated her understanding that if Condition 8503 was imposed on the visa it would limit her ability to remain in Australia. She declared that she had not previously complied with visa conditions and had not overstayed any visa in any country. Included with the visa application form was a document in a language other than English with an accompanying English translation indicating that the visa applicant owns real estate in Iran.

31. At the Tribunal hearing, the visa applicant confirmed that she had only one child who was the review applicant. She told the Tribunal that her religion was Muslim and she was a Shia. She was raised in a religious family and sometimes goes to Shrines for peace of mind. She has experienced no problems with the authorities in Iran and has had no dealings with the morality police in that country. He has never experienced any harm in Iran due to her race, religion, nationality, membership of any group or political opinion and does not fear future harm in Iran due to her race, religion, nationality, membership of any group or political opinion. She was not using the visitor visa as a means of leaving Iran and refusing to return there once in Australia. Despite her only daughter being in Australia and unable to return to Iran, the visa applicant said that she had family in Iran, work, and the care of a sister who is ill which would compel her to return to Iran at the end of her proposed visit to Australia. She knew about her daughter’s religious conversion in Australia and was not coming to Australia to convert her religion. She described ‘loving’ her religion and suggested that if her desire was to come to Australia and live there permanently, she would have accompanied her now former husband and the visa applicant to Australia on the [temporary] visa but decided not to make her life in Australia which led to her divorcing her husband. The Tribunal was provided with medical reports demonstrating that the visa applicant’s sister suffers with [Medical condition 1].

32. The visa applicant told the Tribunal that she had previously left Iran and travelled to [Country 2] and [Country 3]. The trip to [Country 3] was with her now former husband for business and the trip to [Country 2] was with friends. She told the Tribunal that her second husband, who was asleep during the Tribunal hearing, had never been violent towards her and that she was not using the visitor visa to escape family violence. She told the Tribunal that she understood the conditions that would be attached to the visa if granted and agreed to comply with them. She was not coming to Australia to lodge a protection visa and was not coming to Australia with the intention of refusing to leave.

    FINDINGS AND REASONS

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

34. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, a decision-maker 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)).

35. The evidence is that the visa applicant has not previously travelled to Australia. Therefore, the visa applicant has no demonstrated Australian visa history to show or not show that she has previously complied with visa conditions. This means that the consideration in cl 600.211(a) is irrelevant.

36. The decision-maker 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)).

37. The visa applicant gave oral evidence that she understood the visa conditions that would be imposed on the visitor visa if it is granted and agreed to abide by those conditions. The Tribunal was persuaded that the visa applicant was telling the Tribunal that truth about her intentions to comply with those conditions.

38. The decision-maker must also consider all relevant matters (cl 600.211(c)).

39. The Tribunal accepts the evidence that the visa applicant is employed in Iran and is in a marriage with her second husband that appears to be free from violence. The Tribunal accepts that the visa applicant holds property in Iran and has a sister who suffers with [Medical condition 1] and that the visa applicant cares for this sibling. The Tribunal accepts that the visa applicant has travelled outside of Iran and returned to that country on two occasions. The Tribunal accepts the oral evidence that the visa applicant has not been harmed in Iran and is not fearful of future harm in Iran. This evidence supports the proposition that the visa applicant will return to Iran at the end of her visit to Australia.

40. The Tribunal was naturally concerned about the visa applicant’s intentions about coming to Australia, noting the immigration history of the review applicant. However, the visa applicant’s oral evidence and the review applicant’s oral evidence about the visa applicant’s intentions persuaded the Tribunal in this review that the visa applicant is only coming to Australia to attend her daughter’s wedding. While there would be nothing to stop the visa applicant lodging a protection visa once in Australia, the Tribunal is comfortable that the oral evidence provided at the Tribunal demonstrates that this will not occur and in the unlikely event  it did, any protection claims concerning religious conversion would be highly scrutinised by a decision-maker and probably result in failure based on what the Tribunal has been told.

1. The Tribunal was also concerned that the review applicant’s wedding may have been a ruse merely to get the visa applicant to Australia. This concern was based on the fact that the only corroborative document about the wedding was the booking for the restaurant. However, given the material that was subsequently provided to the Tribunal, the Tribunal is satisfied that the wedding is genuine and is the purpose for the visa application.

2. Considering the totality of the evidence, the Tribunal is persuaded that the review applicant is getting married and wishes her mother to attend this occasion. The Tribunal is satisfied that this is the only purpose for the visit and that the visa applicant will come to Australia, abide by visa conditions, and return to Iran after her visit to Australia.

   CONCLUSION

3. For the reasons given above, the Tribunal finds that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visitor visa would be granted.

4. Therefore, the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations.

5. Any residual concerns held by the delegate can be adequately addressed by the imposition of a security deposit in the amount offered by the review applicant.

   DECISION

6. The Tribunal sets aside the decision dated 23 December 2023 refusing to grant the visa applicant a Visitor (Class FA) Subclass 600 visa and remits the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies the following criteria for the grant of the visa:

   · cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth).

   Nathan Goetz

   
   

   Member