Ebrahimi (Migration)

[2018] AATA 66

Ebrahimi (Migration) [2018] AATA 66 (17 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammadreza Ebrahimi

VISA APPLICANT:  Mr Ruhollah Ebrahimi

CASE NUMBER:  1729395

DIBP REFERENCE(S):  BCC2017/3785286

MEMBER:Tania Flood

DATE:17 January 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 17 January 2018 at 12:05pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Planning to visit brother – Plans to stay with brother in Australia – Visa applicant has travelled extensively oversea – Stable employment in Iran – No adverse family migration history – Genuine temporary entrant

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 Schedule 2 cls 600.211, 600.211(a) – (c), 600.612, 600.231 Schedule 8 Conditions 8101, 8201, 8503, 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 20 November 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 16 October 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 visa was not granted on the basis that the visa applicant did not meet cl.600.211 because the Delegate was not satisfied he genuinely intends to visit Australia temporarily.  

5. The review applicant appeared before the Tribunal on 16 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

   BACKGROUND

7. The visa applicant is the review applicant’s brother.  He was born on 31 May 1977 in Iran.  He is a single male, residing and working in Tehran. He has two sisters living in Iran.

8. The review applicant is an Australian citizen and a Professional Interpreter.

   TRIBUNAL HEARING

9. The review and visa applicants provided consistent and credible evidence to the Tribunal which is summarised as follows:

10. The review applicant came to Australia on a Student visa.  On completion of his studies he obtained sponsored employment and permanent residency.  He is now an Australian citizen.

11. The review applicant is married with three children aged 21, 11 and 3 years.  He has no other family in Australia.

12. The review and visa applicants have two sisters living in Iran.  Their parents are deceased.  The visa applicant and his sisters all live in Tehran.  His sisters are married and he lives alone.

13. The visa applicant is single with no immediate plans to marry.  He works full-time in a managerial role for a Consultant Construction company.

14. The visa applicant has travelled extensively to a range of different countries including the UAE, Turkey, Oman, China, Bulgaria, Armenia, Georgia and Malaysia.

15. The review applicant enjoys a close relationship with his brother and last saw him in Tehran in 2015 when he attended his mother’s funeral.

16. The visa applicant would like to visit Australia for two months to spend time with his brother and his family and to see some of the country.  He cannot remain longer than two months because that is the maximum amount of time he can be away from his job.

17. The visa applicant will reside with the review applicant while in Sydney and has sufficient funds of his own to cover the cost of his travel and other expenses.  He has savings derived from his paid employment and he also derives income from rental properties and a family business. 

18. Recently the visa applicant purchased a block of land which he intends to develop for profit. 

19. The visa applicant has no involvement with any political groups and was not involved in any of the recent political unrest in Iran.  He is a Muslim but has no problems in Iran for this reason.

20. In 2005 the visa applicant was offered a placement at Flinders University but chose not to take up the offer because he did not want to leave his home and his life in Iran.  He has travelled to numerous countries and always returned to Iran for the same reason.  His income is above the per capita average in Iran and he has no reason to seek to remain in Australia permanently.

21. The review applicant looks forward to sponsoring other family members to visit Australia in the future and is aware that this will be difficult if his brother breaches his visa conditions.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. 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 Sponsored Family stream may be granted: cl.600.231.

24. 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)).

25. The review applicant first entered Australia on 31 December 2005 as the holder of a Student visa.  On 3 December 2010 he was granted a Regional Sponsored Migration visa.  On 25 January 2012 he was granted Australian citizenship.

26. The visa applicant has never visited Australia.

27. There is no adverse family migration history to consider.

28. 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.

29. On the available evidence both the review and visa applicants are employed and in possession of cash savings.  The visa applicant will reside with the review applicant for the duration of the proposed visit.  The Tribunal is satisfied the visa applicant will not, and has no need to work in Australia for the duration of the proposed visit.  The Tribunal is also satisfied the visa applicant has no intention to engage in study or training in Australia.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if he is granted a visa.

30. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

31. The Tribunal acknowledges the visa applicant is a relatively young, unmarried man with no dependents.  The Tribunal also acknowledges that his only brother with whom he reportedly has a close relationship is residing in Australia.  That said, on the available evidence the visa applicant also has two sisters residing in Tehran.  Further, the Tribunal accepts the visa applicant is in stable employment in Tehran which affords him a steady income and comfortable lifestyle.  In addition, the evidence supports that the visa applicant owns rental apartments in Tehran and an inherited family business from which he derives extra income.  The visa applicant is a Muslim and he reports no political involvement in Iran or involvement in any other activity which does or is likely to cause him difficulties in his country.  The Tribunal places weight on the fact he has travelled to numerous other countries and returned to Iran and on the fact he had an opportunity to seek a Student visa to Australia several years ago but did not because he preferred to remain in Iran. 

32. Throughout the hearing the review applicant spoke about his desire for his children to be able to meet their relatives and about his wish to sponsor other family members to Australia at a future date.  The Tribunal is persuaded the review applicant is aware that these plans could be negatively impacted in the event his brother came to Australia and did not comply with the conditions of his visa.

33. The Tribunal considers it reasonable the visa applicant would want to travel to Australia for two months to visit his sibling and to spend time with his family. As can be seen from the information outlined above, there is no adverse family migration history to consider and the Tribunal has no reason to conclude that the visa applicant will not comply with the conditions of his visa. 

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

35. 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

36. 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.

    Tania Flood
    Member