Akhundi (Migration)

[2021] AATA 648

Akhundi (Migration) [2021] AATA 648 (4 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mina Akhundi

VISA APPLICANT:  Miss Mehraneh Abiri

CASE NUMBER:  1832887

HOME AFFAIRS REFERENCE(S):          BCC2018/3442006

MEMBER:Moira Brophy

DATE:4 March 2021

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 04 March 2021 at 11:13am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – previous compliant travel to another country by applicant, and to Australia by other family members – applicant’s work, study, fiancé and other family members in home country – family’s stable situation – consequences for future applications by other family members – credible evidence – decision under review remitted

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 Home Affairs on 12 October 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 11 September 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 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.

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 the applicant genuinely intended to stay temporarily in Australia.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant Mrs Mina Akhundi gave evidence at a telephone hearing before the Tribunal on 10 November 2020. The Tribunal also received oral evidence from the visa applicant Miss Mehraneh Abiri, who is the review applicant's niece. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   BACKGROUND

9. The visa applicant is a 21-year-old female who was born in Iran. The visa applicant is the niece of the review applicant. She has never been to Australia. The visa applicant’s aunt resides in Australia with her husband and two sons. In her application for a Tourist visa, the visa applicant requested a visa up to 3 months for a family visit. The visa applicant is self-supported by her work as a dental assistant, and her travel will be self-funded.

10. The review applicant, Mrs Mina Akhundi, arrived in Australia on 5 September 2008 on a Prospective marriage visa (subclass 300). She was granted a Partner visa (subclass 820) on 26 November 2008. She is an Australian citizen. She lives with her husband and two sons. Her parents and two sisters and their families live in Iran.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

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

13. 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)).

14. At the time of hearing the visa applicant told the Tribunal that she had previously travelled to Turkey. She said she had complied with her visa conditions. She had not been refused a visa to any country other than Australia.

15. 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.

16. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit her family. The review applicant said it had been her suggestion as she missed spending time with her family, and she would like for her niece to get to spend time with her sons. They do not get the opportunity to send time and get to know their cousins as they are all in Iran. The review applicant said she was missing her family especially as she was recovering from being in a major car accident. She had been diagnosed as suffering from PTSD and was finding it particularly difficult being separated from her family. She thought having her niece visit would be beneficial to her both physically and emotionally. The review applicant said bother her parents had been to Australia. Her father had only recently returned home after being in Australia for twelve months. Her two sisters had also visited. Her family members had always complied with the term of their visas. The Tribunal accepts it is the intention of the visa applicant to visit her aunt. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

18. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that she had not seen her niece since 2016 when she had travelled to Iran for her sister’s wedding. She said her niece was in paid work, she was studying, and she was engaged to be married. She thought those matters would impact on the amount of time she could come to Australia for.

19. The review applicant gave evidence that the visa applicant wants to come to Australia for one month. The visa applicant told the Tribunal that she would stay for one month at the longest. She said she does not like being away from her home for too long.

20. The Tribunal asked the review applicant what incentives the visa applicant has to return to Iran at the end of her permitted stay in Australia.

21. The review applicant responded that her incentives to return are her family and her impending marriage. She has only the review applicant in Australia. The balance of her family is in Iran. When asked what would happen if she comes here, changes her mind and does not want to return to Iran, she responded that she loves her family and her life in Iran.  She would return to her home.

22. The Tribunal asked the review applicant what impact the political, economic and security situation in Iran has had on the visa applicant.

23. She responded that where they are the situation is stable and that they are in the fortunate position to not be as vulnerable as many other people in Iran.

24. The Tribunal asked the visa applicant what incentives she has to return to Iran at the end of her permitted stay in Australia. She responded that her biggest incentive to return is her family and fiancé. When asked what would happen if she came here and then changed her mind and decided to stay here, she responded that she has not even thought about that. She stated that she has her family and life in Iran. She stated that she wants to visit her aunt and see the life she has built here but she has no intention of living here.

25. The Tribunal asked the visa applicant what impact the political, economic and security situation in Iran has had on her and her family. She stated that the security, political and economic situation has had little impact on them in recent times.

26. The Tribunal has considered the evidence given by the review applicant. She has worked very hard to make her life in Australia since she came here in 2008 and she wants to show her family members the fruits of the labour. The review applicant stated that the visa applicant is law abiding and that all the members of her family are also law abiding. They were very aware that a failure to abide by any visa conditions imposed would have ramifications for any future visa applications they may make.

27. The Tribunal has considered other relevant matters. The review applicant stated that if the Department requires a security bond, she was prepared to lodge a bond of up to $20,000. She stated that she is confident that her niece will return to Iran at the end of her visit.

    Findings

28. Having considered all the evidence, the Tribunal is of the view that the visa applicant and the review applicant are credible witnesses. The Tribunal accepts that the visa applicant has a deep commitment to her fiancé and her family and that this would provide a strong incentive for her to return to Iran. The Tribunal accepts that she has the financial resources to pay for her trip to Australia. The Tribunal accepts that she does not intend to work, study or undertake any training in Australia. The Tribunal places considerable weight on the fact that she has only applied to visit in the context of her not having seen her aunt for five years and not having ever met her youngest cousin.

29. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that her family members are able to visit her in Australia and that she will ensure that the visa applicant complies with the conditions of her visa so as not to jeopardize other family members' prospects of obtaining visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of her visa.

30. The Tribunal accepts that the visa applicant's incentives to return to Iran outweigh her incentives to remain in Australia after the end of her permitted stay. The Tribunal accepts that she intends complying with the conditions of her visa.

31. 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

32. 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.

    Moira Brophy
    Member