Ahmadi (Migration)

[2018] AATA 4710

Ahmadi (Migration) [2018] AATA 4710 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Arash Ahmadi

VISA APPLICANT:  Mrs Asal Azimi

CASE NUMBER:  1802857

HOME AFFAIRS REFERENCE(S):           BCC2018/248811

MEMBER:Nora Lamont

DATE:8 October 2018

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 October 2018 at 9:01am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) visa – genuine temporary entrant – tourist stream – married to an Australian citizen – previous visitor visas – complied with conditions –  current partner application – separation of husband and wife – supported by husband during visits – applicant’s assets in Iran – decision under review remitted for reconsideration

PRACTICE AND PROCEDURE – decision made on review

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 600.211

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 Immigration on 4 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 16 January 2018. 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.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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 the applicant has a current application for permanent residency which is an indication of her desire to stay in Australia permanently. Further, the delegate found that the current economic situation in Iran weighed against the applicant.

5. The evidence before the Tribunal was sufficiently persuasive combines with the significance of the circumstances underpinning the application that the Tribunal has been able to proceed to a decision on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).

   Background

10. The initial visa application was made by Ms Asal Azimi a 37 year old Iranian female who lives in Tehran. The applicant is married to an Australian citizen. The applicant was married on 11 December 2017 in Melbourne. The applicant Ms Azimi has travelled to Australia on two separate occasions.

11. The stated purpose of the visit was to visit her husband Mr Arash Ahmadi.  The planned date of arrival was 1 March 2018.

12. The application was refused. The decision outlines that the delegate noted that the applicant had an ongoing permanent visa application and that indicated a desire to live in Australia permanently and this factor combined with the current economic situation in Iran were matters that weighed against the applicant.

13. The applicant’s husband Arash Ahmadi is a Project Manager for the Level Crossing Removal Authority. The couple have known each other since childhood and reconnected in May of 2017 when Arash was in Iran visiting. They quickly fell in love and since that time have tried not to be separated and have travelled together since May of 2017. The couple have travelled to Portugal, Turkey (twice), UAE, Thailand and Sydney. The applicant travelled to Australia in July and November of 2017.

14. Mr Ahmadi has travelled to Iran to see his wife on these occasions:

    ·July 2017

    ·September 2017

    ·20 December 2017 to 13 January 2018

    ·14 March 2018 to 31 March 2018

    ·12 April 2018 to 6 May 2018

    ·20       August 2018 to 2 September 2018

15. Ms Azimi has suffered two miscarriages in the past several months and the Tribunal was given a Doctor’s letter and medical report indicating the applicant was suffering sever post-surgery stress and depression, and that Ms Azimi desperately and critically needs to be with her husband. Due to the amount of time that Mr Ahmadi has taken off work to visit his wife in Iran he can no longer afford to take leave from his job.

16. Mr Ahmadi’s boss provided a letter in which he stressed that Mr Ahmadi has become unusually distracted, stressed and has been suffering emotionally from the uncertainty of the situation. Mr Ahmadi’s boss pointed out that Mr Ahmadi has had to take carers leave to visit his wife in Iran due to the miscarriage but that he will not be given any unpaid leave in the future. Further Mr Ahmadi has exhausted his funds as he has been so frequently flying back to Iran.

17. Mr Ahmadi’s mother has a medical diagnosis and Mr Ahmadi will be needed to take care of his mother, and without time off and needing to be present at his work, combined with his wife in Iran Mr Ahmadi is clearly stressed.

18. 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.

19. The applicant has complied with her visa conditions in the past and left Australia before the expiry of her visa. The applicant has also travelled to Portugal, UAE, Turkey and Thailand and has complied with her visa conditions in these cases. The Tribunal gives weight to this. Further, the applicant is highly unlikely to seek work whilst in Australia and will be supported by her husband.

20. The fact that the applicant has a refusal of an application for an offshore Partner Subclass 309/100 visa is given little weight in the Tribunal’s assessment. The applicant has been to Australia on two separate occasions and has not attempted to stay permanently. It is not for this Tribunal to assess the partner application or its merits. However, the Tribunal did assess the information before it outlining a husband and wife separated and finds that the issues surrounding the visitor visa refusal and what that means for both parties to be compelling.

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The applicant owns property in Iran and the applicant and her sister are the beneficiaries of an inheritance. The Tribunal was provided with copies of the property ownership and the applicant receives rent from the ownership of these properties. Combined with the applicant’s compliance with past visas and with her husband’s employment in Australia the Tribunal gives weight to this.

22. The Tribunal is aware of the current country information about the situation in Iran. The Tribunal however, has given it little weight as this visa refusal has little to do with the current country situation and more to do with a relationship and hardship on both parties. 

23. Given the miscarriages, Mr Ahmadi’s inability to take more leave to return to his wife in Iran and given the applicant’s previous compliance history the Tribunal is satisfied the applicant genuinely intends to stay temporarily in Australia.

24. The Tribunal finds it is totally acceptable for the applicant to apply and be granted a visitor’s visa to maintain her relationship with her husband. On balance, the Tribunal considers that the applicant’s strong desire to see her husband is compelling and credible.

25. Given the circumstances, any efforts the Department may make in expediting this case would be greatly appreciated.

26. 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

27. 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.

    Nora Lamont
    Member