BAKHSHI MONFARED (Migration)

[2020] AATA 2082

BAKHSHI MONFARED (Migration) [2020] AATA 2082 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Javad Bakshi Monfared

VISA APPLICANT:  Mrs Mahboubeh Bakhshi Monfared

CASE NUMBER:  1810945

HOME AFFAIRS REFERENCE(S):          BCC2018/1381764

MEMBER:Moira Brophy

DATE:2 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 02 March 2020 at 10:14am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – visa applicant offering care for review applicant’s children – employment in Iran – previous compliant visit to another country – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 425, 430, 441

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221

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 17 April 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 23 March 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 delegate was not satisfied the applicant intended to stay temporarily in Australia.

5. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal at 9.30 am on 27 February 2020.  The invitation that was sent to the applicant’s nominated contact email address on 28 January 2020 included, among other things, that if they did not attend the hearing the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.  The applicant was also advised in the invitation that he could seek an adjournment and if he would not be able attend the scheduled hearing that the Tribunal should be notified as soon as possible. 

6. An ‘Information About Hearings – MR Division’ fact sheet was attached to the hearing invitation.  The fact sheet provides significantly more detail for a review applicant about what to do if they cannot or do not attend their hearing and the consequences of not attending the hearing.

7. The hearing invitation also had attached to it a ‘Response to Hearing Invitation – MR Division’ form with a request that the applicant sign and return it seven (7) days after receipt to let the Tribunal know if he would be attending the scheduled hearing and whether he required an interpreter.  The form was not returned. 

8. The Tribunal notes that the contact email address in the review application, to which the hearing invitation was sent, is the same email address as the one used by the Department to notify the applicant of the refusal of his visa.  This was the same email address the hearing invitation was sent to.  It is the same email address provided in the review application, which is the last email address provided to the Tribunal in connection with the review, as there is no information before the Tribunal indicating that the applicant has notified any change to his contact email address.

9. In addition to the written invitation, as a courtesy where an applicant has provided a mobile number, the Tribunal sends SMS hearing reminders.  The applicant was sent SMS hearing reminders to the mobile number he provided in his review application, on 20 and 26 February 2020.  There is no information before the Tribunal to indicate that the applicant has advised that his mobile number has changed since lodging the review application.  

10.   The review applicant did not appear before the Tribunal on the day and at the scheduled time and place.  The applicant did not request an adjournment, nor did he provide any additional information relevant to his case or give a reason for the non-attendance.  A hearing officer informed the member at 9.30 am, and confirmed at 10:00 am, that the applicant had not arrived for his hearing.  The member instruction the hearing officer to record a ‘no-show’.

11.  In summary, s.441A(5) of the Act, provides that the method of transmitting a document (by a member of officer of the Tribunal) to the applicant by electronic means, will be by transmission to the last fax, email address or other electronic address provided to the Tribunal (by the review applicant) in connection with the review.  In this case, the applicant provided an email address.

12.  Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.441A(5) of the Act and the invitation has not been returned to sender.  

13.   Under s.426A(1A)(b), if an applicant does not appear at the scheduled hearing the Tribunal may, by written statement (but not orally) under s.430 of the Act, make a decision on the review without taking any further action to allow or enable the applicant to appear.

14.  In those circumstances the Tribunal proceeded to determine the application on the information before it.

15.  The review applicant was represented in relation to the review.

16.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

17.  The visa applicant is a 51-year-old national of Iran. According to her application she is in a defacto relationship. The visa applicant has never been to Australia. In her application for a Tourist visa, the visa applicant requested a visa up to 6 months for a family visit. The visa applicant is employed and her travel will be self-funded.

18.  The review applicant, Mr Javad Bakshi Monfared, is the brother of the visa applicant. He is an Australian citizen. He arrived in Australia on 25 July 2007 on a TU 570 Student visa. He subsequently applied for a Skilled Independent VB 885 visa and this was granted on 08 May 2013.

19.  In support of this application the following documents were provided to the Department :

·Visa applicant’s translated pension pay slip

·Visa applicant’s translated employment pay slip

·Copy of visa applicant’s passport

·Visa applicant’s self-attested photograph

·Translated property ownership document in the name of visa applicant

·Visa applicant’s translated Bank statement

·Visa applicant’s translated birth certificate

·Department of Immigration and Border Protection Form 956A

·Online visa application

20.  In support of this application the following documents were provided to the Tribunal :

·Copy of Department decision record

·Medical reports of Mrs Nasim Mam Hassan (wife of the review applicant)

·Medical certificate of Mrs Nasim Mam Hassan issued by Dr Mahnaz Habibi  

CONSIDERATION OF CLAIMS AND EVIDENCE

21.  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.

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

23.  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)).

24.  At the time of application the visa applicant stated she had previously visited Turkey in 2017 and she had complied with the visa conditions and laws of Turkey.

25.  On her application the visa applicant stated she wanted to visit Australia for a period of up to six months. Her planned arrival was 12 April 2018 and her planned departure was 22 June 2018. Medical evidence provided prior to hearing indicated the wife of the review applicant was requiring assistance due to a wrist problem she was experiencing, which required surgery and they wanted the visa applicant to be present to care for their two young children while she recovered.

26.  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.

27.  The Tribunal is concerned that while the applicant is employed and earning an income in Iran her position would not be an incentive to return to Iran. Severance of this tie could occur with a minimum of difficulty and her professional skill set would be portable.

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

29.  The Tribunal has taken into account the applicant's personal profile and the circumstances of her family as given at the time of application but given the failure of the review applicant to attend the hearing the Tribunal was not able to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

30.  For the above reasons the Tribunal is not 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 not met.

DECISION

31.  The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Moira Brophy
Member