Ahmadi Shamsabad (Migration)

[2018] AATA 453

Ahmadi Shamsabad (Migration) [2018] AATA 453 (24 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jahangir Ahmadi Shamsabad

VISA APPLICANT:  Mrs Farah Ahmadi Shamsabad

CASE NUMBER:  1713497

DIBP REFERENCE(S):  BCC2017/1805637

MEMBER:Linda Holub

DATE:24 January 2018

PLACE OF DECISION:  Sydney

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 24 January 2018 at 4:12pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary stay in Australia –Strong family ties in Iran – Ownership of property – Not impacted by political problems – Incentive to return – Positive family migration history

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211, 600.211(a)), 600.211(b)), cl.600.211(c)), 600.612, 600.231, conditions 8101 and 8201, 8531

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 9 June 2017 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 21 May 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 delegate was not satisfied based on the evidence provided that the applicant genuinely intends to visit Australia temporarily.

5.    The review applicant appeared before the Tribunal on 18 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and her daughter and the review applicant’s son.  The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

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

BACKGOUND

7.    The review applicant was born in Tehran, Iran in 1963. He became an Australian citizen in December 1996.  He first came to Australia on 9 November 1990 but was granted a was granted a Border (UA-773) visa on 4 June 1992.  On 1 September 1992, the review applicant was granted a Processing (UA-825) visa and then on 28 June 1994 a Partner (801) visa.  He became an Australian citizen on 9 December 1996. 

8.    The review applicant spoke openly and freely about his migration pathway and the Tribunal considered him to be a credible witness.

9.    The visa applicant is the review applicant’s sister. She applied to come to Australia in May 2017 for two months to spend time with her brother and his family. An application was also lodged on behalf of her only daughter to travel with her to Australia.

1. The visa applicant was born in November 1965 and is a citizen of the Islamic Republic of Iran. She is married and has a brother and sister living in Iran as well as her extended family network.  Her husband is a retired air force army colonel.

2. The review applicant indicated to the Department that he and his wife operate a small business together which only closes for two weeks a year over the Christmas/New Year period and therefore it is not convenient for them to plan an overseas trip.  The letter indicates that he has not returned to Iran since he left in August 1990. 

3. In evidence to the Department the review applicant provided a copy of bank documentation regarding a loan he and his wife have taken out which as at 21 May 2015 had an outstanding balance of $369,853[1]. He also provided copies of account statement in relation to his business account and he and his wife’s joint account showing balances as at 21 May 2017 of $6,093 and $7,892 respectively.  Valuation certificates were also provided in relation to two properties.  Subsequent to the hearing, the review applicant submitted copies of his Notice of Assessments of income from the Australian Taxation Office, showing taxable income of his wife was $43,000 in respect of his wife, $69,000 in respect of him[2] and the grows income of their child care business being $459,000[3].

   [1] DIBP file, folio 45.

   [2] AAT file, folio 31.

   [3] AAT file, folio 30.

4. At hearing the review applicant heard that the review applicant and his wife own three properties in St Clair on which he and his wife have mortgages on two.  They have four cars, two of which are company cars.  They have a small amount of shares and he owns a two bedroom unit in Iran. Although evidence was not provided in relation to all of these assets, the Tribunal accepted the oral evidence as all other evidence provided by the applicant was consistent and supported by the documentary evidence. 

5. The visa applicant provided evidence of one apartment in her name and funds of around $25,000[4] and at hearing she indicated that has interests in two properties and her husband owns another and that they have on car.

   [4] AAT file folios, 32 and 42-43.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother and his family.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

3. 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)). The visa applicant visited Australia in 2003. On 14 July of that year she was granted a Sponsored Family Visitor visa (UL-679). She arrived in Australia on 3 August 2003 with a visa that was valid until 3 November 2003. She departed on 8 October 2003.  The Tribunal is satisfied that the applicant has complied with the conditions of her last substantive visa.  The visa applicant has visited Turkey twice but the Tribunal notes that a visa was not required for her to travel there.

4. The Tribunal was informed at hearing that the review applicant’s mother has also travelled to Australia.  Departmental records show, that his mother, who was born in November 1930 travelled to Australia on two occasions.  She first came in October 1998.  Her Tourist (TN-676) visa was valid until 16 December 1998.  On 16 December 1998 she was granted a further Tourist visa, this time a Long Stay TN-686 visa, which was valid until 7 July 1999.  She departed Australia on 6 March 1999.  In June 2002 she was again granted a Tourist (long stay) (TN-686) visa valid until 26 October 2002.  She arrived on 31 July 2002 and departed on 26 October 2002.

5. 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.

6. Both the review and visa applicants indicated that the visa applicant would pay for the cost of her and her daughter’s airfare and that the review applicant would cover their living expenses while his in Australia.

7. There is nothing in the evidence before the Tribunal which suggests that the visa applicant would work or study during her proposed 2 to 3 month stay in Australia. The Tribunal put significant weight on the fact that she does not speak English, has never worked outside the home and that her financial position is quite comfortable. The Tribunal is satisfied that she will comply with conditions 8101 and 8201.

8. Condition 8503 refers to entitlement, and is not a condition that involves compliance.

9. In discussing the incentives for the visa applicant to return to Iran at the end of her stay the review applicant talked about his sister’s life and that she is well settled.  He spoke of her relationship with her husband and the fact that she owns a number of properties and has other financial interests.  Her husband receives a pension from his service in the Iranian air force.  Aside from the review applicant all other members of her family are in Iran. The Tribunal heard that she is not active politically and due to their middle class status is not impacted on by the problems that have caused some disquiet amongst some elements of the population recently.

10. Further, the review applicant heard that had the visa applicant wished to remain in Australia it would have been possible for her to do so when she was younger and when the political situation in Iran was less stable.

11. The visa applicant herself stressed her close and loving relationship with her husband as being a significant incentive for her to return to Iran.  The visa applicant explained at hearing that she has interests in two properties and her husband owns another.  The Tribunal was provided with a copy of a translated Title Deed showing that the visa applicant became the owner of one of the apartments in February 2006[5].

    [5] AAT file, folios 42 and 43.

12. The visa applicant stated that she has not had any difficulties because of the political or security situation in the Iran or because of his religion. She is a Muslim.

13. With regard to condition 8531, the Tribunal put weight on the family’s positive migration history and incentives for the applicant to return to Iran at the end of her stay.  The review applicant is keen to ensure that his family in Iran is able to visit and that the pathway is not blocked by his sister breaching her visa conditions.  The Tribunal heard heartfelt evidence from the review applicant’s son about the difficulty of the family in Australia visiting Iran because of his father’s departure from Iran and therefore the opportunity for family members to visit from Iran is critical to the family. 

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

15. 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

1. 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.

Linda Holub
Member