Avarzamani (Migration)

[2021] AATA 4420

Avarzamani (Migration) [2021] AATA 4420 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Elnaz Avarzamani

VISA APPLICANT:  Mrs Gity Shafaghi

CASE NUMBER:  1933990

HOME AFFAIRS REFERENCE(S):          BCC2019/5371688

MEMBER:Stephen Witts

DATE:5 October 2021

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 05 October 2021 at 11:26am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – two children in Australia, extended family, house and husband’s business and properties in home country – previous compliant travel to Australia and other countries – application for contributory parent visa in progress – care not to jeopardise future plans – 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 14 November 2019 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 25 October 2019. 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 (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 that the visa applicant genuinely intends to stay in Australia temporarily for the purpose to which the visa is granted.

5. The review applicant appeared before the Tribunal on 5 October 2021 to give evidence and present arguments.

6. The Tribunal notes that this matter was dealt with in conjunction with case number 1933450 as the review applicant in that matter was the same review applicant in this matter and as the visa applicant, Mr Mohammadreza Avarzamani, was the partner of the visa applicant in this matter. It is further noted by the Tribunal that the review applicant in both matters is the daughter of both visa applicants.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

8. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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.

12. 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 Tribunal notes that there is no evidence before the Tribunal of any substantive breach of visa conditions by the applicants.

13. The Tribunal must also consider if appropriate 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):

    ·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.

14. According to the delegate’s decision record dated 14 November 2019 provided to the Tribunal by the applicants, the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

15. According to the delegate it made an assessment that the visa applicant was a 57-year-old (as at time of decision) married citizen of Iran residing in Iran and that she requested a visa to visit her daughter and son and for tourist reasons. The delegate contended that the visa applicant was currently unemployed and had not declared any dependent relatives remaining in her home country and that after a consideration of her family circumstances, funds and assets, employment, and prior international travel, it made a finding that the visa applicant did not intend a genuine temporary visit to Australia.

16. The Tribunal has considered all the material before it including evidence given prior to the

17. hearing and evidence given at hearing. In particular the Tribunal notes that property title deed information was provided regarding the visa applicant, company registration material, bank statements in the visa applicant’s name, payslips, and other material.

18. The Tribunal notes that also included was a statement by the visa applicant’s agent dated 29 September 2021 on behalf of both this applicant and the applicant in case number 1933450, the visa applicant’s partner and the parents of the review applicant, referred to above, stating that the visa applicants in these linked cases are attached to their home, business, and their family in Iran, and that they have enough income and privacy in their home country and that they would not want to stay in Australia as they can’t speak the country’s main language of English. It was further asserted that they have no one from their family in Australia except two adult children that they have been living apart from for more than 10 years and that both their daughter and their son are both living in Australia independently and cannot live with their parents. It was further stated that the visa applicants don’t have any friends or other type of connection with anyone else in Australia and do not have the ability to work here.

19. It was further asserted that they cannot communicate with anyone in Australia and cannot learn the Australian culture and way of life in their 60s. It was also stated that they have come to Australia on three occasions to visit their children and have returned back before the visa expired and that they plan to come to visit their children and invest in Australia for their children’s future. It was stated that they want to oversee their children’s successful investments in business operations and to visit them more frequently and that in June 2020 they applied for an Australian contributory parent visa SC 143 on the ground that the children are permanent residents in Australia. It was further stated that the visa applicants have never had any political or religious issues in Iran, and they are comfortable there.

20. The Tribunal also notes that in this submission it was asserted that the visa applicant’s husband has parents who are both alive and that he is committed to looking after them. It was further stated that he has a brother and sister and that they are close as a family and also that he is a well-known businessman in Iran and owns many properties there. It was also stated that he needs to be in Iran to monitor housing prices and also that he is a mountain climber and regularly goes to mountain climbing events in his home country. It was also stated that he lives in Iran and has a comfortable lifestyle there and is very wealthy and that his wife, the visa applicant in this particular matter, used to work as a director of the family business but now monitors the property market and that her father is also alive and that she visits him regularly, and that she has two brothers and three sisters who live in Iran and that she is committed to them.

21. It was also stated that they have a daughter who was a teacher in Australia who came to Australia in 2011 on a student visa, that is the review applicant in this matter, and that she is a 34-year-old single woman and that their son also came to Australia for his education in 2010 and that he was given a protection visa in 2019.

22. It was also stated that since the visa applicants’ last visit to Australia their children have applied for protection visas but that this fact has nothing to do with their parents as they have a comfortable life back in their home country. It was also stated that the visa applicants’ children are aware that if they come to Australia, they must comply with visa conditions.

23. At the hearing the Tribunal had a discussion with the applicants regarding the application.

24. The visa applicant stated that she and her husband have visited Australia in 2012, 2017, and 2018, and did not breach any of their visa conditions and that they left before the end of the valid visa expiry date. It was stated that they have also visited India, Cyprus, and Turkey. It was stated that they have run a successful business in Iran for 30 years and have used those profits to buy various properties. The Tribunal notes evidence provided to authenticate this statement. It was confirmed that they have made a contributory parent visa application because, they stated, they would like to visit their children whenever they wanted to and that they would like to invest heavily in Australia. It was also stated that they want to come for regular visits but do not want to jeopardise any potential future residency and that they will respect the relevant laws. It was also stated that they still have significant business and property interests back in their home country which they must return to and that they also have ageing parents that they need to look after.

25. The review applicant stated that she has a protection visa and that initially she did not originally intend to stay in Australia when she came as a student but that she changed her religion and converted to Christianity and made a protection visa application in 2017 and has since achieved that outcome. She stated that her parents have significant family business back in their home country and that they would not want to risk their reputation.

26. The Tribunal has considered this matter and does acknowledge that the visa applicants would have an incentive to remain in Australia because their only two children now live here permanently. However, the Tribunal also notes that the visa applicants have provided considerable evidence of their ties to Iran and that the Tribunal also accepts that their a application for a contributory parent visa can continue to be processed either favourably or unfavourably while they come here as visitors to visit their children. It is noted also by the Tribunal that the applicants have visited on several occasions and have not breached their visa commitments. The Tribunal accepts that the evidence given by the visa applicants is genuine and that they will abide by any visitor visa they are granted and will return home during that validity of the visa irrelevant of their other application which they say is to allow them to come and go from Australia whenever they like and also to make significant financial investments in Australia. As stated, the Tribunal recognises the considerable personal incentive that the visa applicants would have to overstay their visa pending that other visa application however after careful consideration of all the factors the Tribunal finds that if given a visitor visa that the visa applicants will abide by the terms and conditions of the visitor visa irrespective of any other visa application outcome.

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

28. 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

29. 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.

    Stephen Witts
    Member