Chaichian (Migration)

[2023] AATA 1056

Chaichian (Migration) [2023] AATA 1056 (21 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hossein Chaichian

VISA APPLICANT:  Miss Hoda Chaichian

REPRESENTATIVE:  Ms Hanan Haddad (MARN: 1461976)

CASE NUMBER:  2212891

HOME AFFAIRS REFERENCE(S):          BCC2020/2203538

MEMBER:Linda Holub

DATE:21 April 2023

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 21 April 2023 at 4:23pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visit to the critically ill father – applicant’s migration history – previous permanent visa applications – employment in home country – balance of family in Australia – desire for further family visits – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 August 2022 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 30 August 2020. 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 that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

5.    The review applicant appeared before the Tribunal on 20 April 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video conference through the Microsoft Teams application. The Tribunal determined it was reasonable to hold a hearing in this manner having regard to the nature of this matter, the fact that the review applicant is elderly and requested a video hearing to enable his participation. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding or responding to the questions being put to him. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6.    The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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

BACKGROUND

9.    The review applicant is the father of the visa applicant. He was born in Iraq in 1941 and is a citizen of Iran. The review applicant was granted a Contributory Parent (subclass 143) visa on 24 April 2020, granting him unlimited travel to Australia until 24 April 2025. Department records indicate that he first arrived in Australia in June 2018 as a holder of a Subclass 173 Contributory Parent visa. In April 2020 he was granted a Subclass 143 Contributory Parent visa. He has remained onshore since this time.

1. The visa applicant was born in Kuwait in 1987 and is a citizen of Iran. She is divorced. In her visa application, the visa applicant stated she was seeking to travel to Australia for a family visit for a period of up to three months.

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 the review applicant and other family members. In her application she noted that she needs to visit her father, the review applicant who is critically ill and cannot travel to see the visa applicant, in particular. It further states that she wants to be with her father who she misses and that she does not know how long he may live.

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

4. 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)).

5. The visa applicant first travelled to Australia as a holder of a Subclass 300 Prospective Marriage visa in May 2010. On 5 October 2020 she was granted a Subclass 820 Partner visa due to cease 5 November 2013. 

6. On 25 October 2013 she was granted a Bridging A visa. On 3 March 2015 she was granted a Bridging C visa. She remained onshore on a series of Bridging C visas until June 2016 when she was granted a Bridging E visa. She remained onshore on a series of Bridging E visas until she departed 29 July 2016. She has remained offshore since this time.

7. On 15 September 2022 she lodged a valid application for an Other Family (Migrant) (class BO) Remaining Relative (subclass 115) visa (TF 106). 

8. 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.

9. The review applicant confirmed that four of his children reside in Australia, including his three sons and one daughter. The visa applicant is the only child who resides in Iran. At the hearing the applicants’ representative advised that two of the review applicant’s sons came as a refugees whilst the other came on a Partner visa. His daughter was granted a Carer’s visa.

10. The review applicant explained the family’s migration history. During Saddam Hussein’s regime people with Iranian affiliation were persecuted so the family migrated to Kuwait after which the family members took different pathways. They were registered with the UN in the Philippines and then came to Australia, and some migrated to Iran.

11. The review applicant confirmed that the purpose of the visa is for the visa applicant to visit him and other family members. He stated that he is concerned about his ill health and that he may not see the visa applicant again.

12. The review applicant advised that the visa applicant’s incentive to return to Iran is her job.

13. I referred to the fact that she has applied for a Remaining Relative visa and so it appears to me that her job is perhaps not a significant incentive for her to return to Iran. The review applicant responded that the granting of the Remaining Relative visa will make it easier for her to come and go from Australia without her having to apply for a Visitor visa on each occasion.

14. Asked if there are any other incentives for the visa applicant to return to Iran, the review applicant stated that the visa applicant grew up in Iran and completed her schooling there. He also referred to her aunt and uncle as evidence that the visa applicant has a good network in Iran. He stated she doesn’t want to come here to stay but does want to come here and visit the family.

15. The review applicant stated that the visa applicant lives alone in an apartment owned by him and confirmed the written information provided stating that she has the money to pay for her airfare and to cover all expenses that may incur. She will be staying with the review applicant while visiting. He lives with his son and receives an Iranian age pension.

16. When I spoke with the visa applicant, I put it to her that she had sought to migrate to Australia in her application on a Partner visa and that, more recently, she has applied for a Remaining Relative visa. The visa applicant stated that the main reason for coming to Australia is to visit her father because he is ill, and that he is worried about something happening to him.

17. The visa applicant stated that she has her job and is settled. She left Australia and does not want to be unlawful.

18. The visa applicant confirmed that she lives in her father’s apartment and that she does not have assets aside from her car and savings. She stated that she is employed and has a regular income.

19. The visa applicant referred to her job, aunt, uncle and extended family as incentives for her to return to Iran. The visa applicant explained the nature of her project management role and that it relates building projects.

20. In relation to her previous Prospective Marriage visa and the Partner 820 visa she stated that she was married but because of her husband’s family’s constant intervention in her marriage, there were issues that could not be resolved and so her marriage ended. She stated that she is in a relationship, but it is not serious.

21. Both the visa and review applicants stated that the visa applicant had not had issues in Iran for any reason to do with her religion, ethnicity or for any other reason. The review applicant explained that they had left Iraq by the time the visa applicant was born, and she therefore did not face the same issues he and other family members had previously faced.

22. The Tribunal has taken account of the written information and evidence made available in support of the application and has also considered all other relevant matters (cl 600.211(c)).

Findings

1. Having considered all the evidence, the Tribunal accepts that the visa applicant wishes to come to Australia for up to three months for the purpose of visiting her father and other family members. The Tribunal accepts that the visa applicant can fund the cost of her airfare and that she will stay with the review applicant who will cover the cost of her living expenses while she is in Australia.

2. The Tribunal accepts that the visa applicant has no intention of working, studying or undertaking any training in Australia on the basis of her having a stable position in Iran.

3. The Tribunal accepts that the visa applicant has previously sought to migrant to Australia and that she has applied for a Remaining Relative visa. While this certainly does indicate that she has had some interest in migrating to Australia, I have had regard to the fact that she has taken appropriate pathways to do so. This counts in her favour.

I have some concerns that the incentives for the visa applicant to return to Iran are not strong. I find that her home, job, stable life and extended family members provide sufficient incentives for her to return to her country of residence at the end of her permitted stay in Australia. It appears to me that the visa applicant also has some incentive to maintain a positive migration record and I have put positive weight on this.
Statement made on 21 April 2023 at 4:23pm

1. Condition 8503 refers to entitlement and does not require compliance.  The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

2. 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