Bakhtiari (Migration)

[2018] AATA 3591

Bakhtiari (Migration) [2018] AATA 3591 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shahram Bakhtiari

VISA APPLICANT:  Mr Mohammadjavad Bakhtiari

CASE NUMBER:  1726464

DIBP REFERENCE(S):  BCC2017/2803367

MEMBER:Frances Simmons

DATE:8 August 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 08 August 2018 at 5:27pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored family stream – Visit brother –Incentives to return – Well settled in Iran – Strong family links in Iran – Family’s good immigration history – Willing to pay a security bond if required – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231, 600.612 Schedule 8 condition 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 13 September 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 6 August 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 that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa was granted. 

5. The review applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant, Mr Mohammadjavad Bakhtiari.

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 his brother in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

10. The visa applicant has not previously held a visa in relation to Australia. Therefore there is no evidence that he has complied, substantially complied, or failed to comply, with a previously held visa.

11. 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.

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

13. The review applicant is an Australian citizen who was born in Iran. He arrived in Australia in 2004 holding a special humanitarian visa. He now works as a truck driver at Toll Transport and he provided the Tribunal with pay slips evidencing his income as well as bank statement showing he currently has savings in the sum of $38 000. At the hearing he explained the circumstances that led to him to leave Iran and travel to Pakistan in 1999 before later being granted a special humanitarian visa by the Australian Government. The review applicant has not returned to Iran since his arrival in Australia in 2004, but he and remained in close contact with his family and he saw his parents in 2017 when they visited Australia.[1]  Having considered all the evidence, including the documentary evidence provided to the Department about the identity of the visa applicant and his relationship to the review applicant, the Tribunal accepts that the applicants are brothers. The Tribunal also accepts that they have not seen each other since 1998 and are looking forward to seeing each other.

    [1]  Tribunal file, folios 50-51 (Departmental movement records for the parents of the applicants).

14. The Tribunal accepts that the visa applicant is a married man born on 12 May 1983 who currently resides in Tehran with his wife and new born son.[2] The Tribunal accepts, based on the evidence of the applicants and the documentation (pay slips, employment certificate and letters from his employer) that he is currently employed on a full-time basis by Kish Lamzy Chain Restaurants Company as an accountant and that he has held this position for around three years. The visa applicant told the Tribunal that before this time he worked for a company that imported Nikes and he holds a bachelor’s degree in accountancy.  The applicants have also presented evidence that the visa applicant owns land in Iran.[3]

    [2] Tribunal file, folio 31 (birth certificate).

    [3] Departmental file, folio 41-42.

15. Before the Tribunal the applicants gave consistent evidence that the visa applicant only wants to visit Australia for two to three weeks. While the delegate did not doubt the visa applicant’s claims about his employment, she had concerns about his capacity to take leave from his employment for three months to travel to Australia. The applicants have responded to this concern by stating that when the visa applicant lodged his application online the minimum period of stay he could nominate was three months. The applicants correctly point out that in a ‘letter of invitation’ submitted to the Department the review applicant stated he wanted to invite his brother to visit Australia for four weeks. [4]  The Tribunal has also been provided with a letter from the visa applicant’s employer indicating that he will be able to take three weeks paid leave.

    [4] Departmental file, folio 92.

16. The Tribunal accepts the applicants’ evidence that the visa applicant does not wish to stay in Australia for more than two to three weeks as his wife recently gave birth to their first child and he needs to return to Iran to support his wife and family. The evidence before the Tribunal indicates that the visa applicant has strong family links in Iran, including his wife, newborn son, parents, sisters, and his wife’s parents and siblings.  The visa applicant told the Tribunal that when he returned home from work in the evenings, he felt happiness that he was returning to his new born son after eight years of IVF treatment. His evidence was he would return to Iran to be with his wife and child and that he would comply with the conditions of the visa if granted. During his absence, his parents-in-law, who live nearby, will support his wife.  The Tribunal was also told that visa applicant is the youngest son in his family and his parents, who live nearby his apartment in Tehran, rely on him for support as his father suffers from Parkinson’s disease and recently had eye surgery. The Tribunal accepts that the visa applicant lives with his wife and newborn child in Iran and that he has significant and extensive family ties in Iran. In contrast, he has one sibling in Australia. It is clear that the balance of his family reside in Iran, not Australia.

17. The Tribunal is satisfied that the circumstances of the visa applicant are different from those of the review applicant. While the Tribunal has considered country information concerning the impoverished state of political and religious freedoms in Iran, the Tribunal must consider the visa applicant’s particular circumstances and characteristics. The evidence before the Tribunal is that the visa applicant is a Shia Muslim, not a member of a religious minority.  The Tribunal was informed that the visa applicant has had no difficulties living in Iran and there is nothing before the Tribunal to indicate that he is of adverse interest to the authorities for any reason. Having regard to the visa applicant’s strong family ties in Iran and his ongoing employment, the Tribunal considers that there are significant incentives for him to return to Iran in compliance with condition 8531.

18. The Tribunal places favourable weight on the fact that movement records show that the review applicant’s parents both travelled to Australia in February 2017 holding visitor visas. His mother and father returned to Iran in May 2017 before the end of their permitted stay.[5]

    [5]  Tribunal file, folios 50-51 (Departmental movement records for the parents of the applicants).

19. The Tribunal also places favourable weight on the review applicant’s willingness to pay a security bond if required. The review applicant has stated that he is willing to pay such a bond and has provided evidence of his capacity to do so.[6] The Tribunal considers that this factor, together with an awareness of the potential adverse consequences on future applications by other family members (such as his mother as his father is now too frail to travel) if the visa applicant does not comply with the conditions of the visa, provide an additional incentive for compliance.

    [6] Tribunal file, folios 33-35 (Commonwealth Bank records)

20. 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

21. 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.

    Frances Simmons
    Member