Faizollah (Migration)

[2018] AATA 5736

Faizollah (Migration) [2018] AATA 5736 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Mehdi Faizollah

VISA APPLICANT:  Miss Nazanin Feizollah

CASE NUMBER:  1826550

HOME AFFAIRS REFERENCE:                BCC2018/3031027

MEMBER:Rosa Gagliardi

DATE:8 November 2018

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 08 November 2018 at 2:03pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – attend graduation ceremony of brother – applicant’s parents’ past adherence to visa conditions – intention to comply with visa conditions – family’s financial status – closeness to parents – imposition of security – sponsor’s credibility – 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 Immigration on 3 September 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 12 August 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 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 it was considered that the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.  In addition, the Tribunal took oral evidence from the applicant’s other brother, Mr Milad Faizollah, who lives in Australia.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her brothers in Australia, and particularly to attend her brother’s, Milad’s, graduation. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

10. The visa applicant is a single 28 year old female working as an architect in Karaj, Iran.  Her parents are coming to Australia to attend the graduation ceremony of her brother, who has completed his Doctor of Philosophy.  The ceremony is to be held in mid-December 2018.  In addition the family wishes to spend the Christmas period together. The applicant intends to stay in Australia 5 weeks with her parents.

11. The Department had concerns that the applicant would not have any affective, or other, ties in Iran and may remain in Australia, even though her parents were granted permission to travel on a Visitor visa. 

12. The sponsor, Dr Mehdi Faizollah, and his wife are full time General Practitioners in Melbourne.  At hearing the sponsor stated that he would not jeopardise his good name in the community by permitting any member of his family to breach Australia’s immigration laws. 

    cl.600.211(a)

13. 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)).

14. The applicant has travelled under the guardianship of her parents to, among other places, the United Kingdom and Russia.   The Tribunal does not have any information before it that would point to the applicant or her parents having breached their visa conditions on travel to other countries.

15. The applicant herself has never travelled to Australia but her parents have done so more recently.  Given they have again been granted visas to travel to attend their son’s graduation, it can be inferred that on this occasion they will also abide by their visa conditions.  While the Tribunal places some positive weight on the applicant’s parents’ previous conduct in adhering to their Visitor visa conditions, the applicant’s profile needs to be distinguished and her particular circumstances taken into account separately.

    cl.600.211(b)

16. 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.

17. The applicant is from a relatively affluent family in Iran.  The applicant’s father is a psychiatrist and her mother a psychologist.  The Tribunal has sighted relevant evidence.  They have their own clinic and employ staff.  Further, the applicant’s father has submitted evidence of bank savings which total 1,300,000,000 IRR - approximately AUD$54,663.54.  Evidence has also been submitted of ownership of a home and land by the applicant’s parents.  While the applicant’s parents comfortable economic status does not automatically mean that the applicant herself is in a strong financial position, the Tribunal considers that her family’s financial status is important because it is less likely that the applicant would come to work in Australia to undertake menial work for 5 weeks, or that she would overstay so that she could undertake an illegal labouring job on a farm in harsh conditions, for example. 

18. Further, the Tribunal has sighted evidence that the applicant has worked for an Iranian Architecture Lab in Karaj since November 2016.  Her employer has provided a letter stating that the applicant is planning to visit Australia from 29 November 2018 to 2 January 2019, and will be on annual leave then.  The applicant at hearing stated that her savings would cover the five days or so not included in her paid annual leave.  In support of this claim the applicant has submitted evidence of holding bank accounts to the value of AUD$10,608.66.  The Tribunal considers that the applicant’s financial circumstances are adequate to cover her period of stay in Australia and that she is not required, and does not have the inclination, to work in Australia unlawfully.  In addition, the sponsor and his wife are in a position to provide for any large unforeseen expenses that might arise which also detracts from the likelihood that the applicant would work unlawfully in Australia.

19. In terms of studying in Australia beyond the terms of her visa conditions, the applicant is an architect and is unlikely to want to retrain in a foreign language (English) in another field. 

20. The Tribunal has considered that the applicant is a single female and in travelling with her parents would have no family members to return to.  However, as it has been found that the applicant’s parents are more likely than not to return to Iran at the end of their stay, then it follows that the applicant will have her parents in Iran on return.  The applicant is currently living with her parents and is supported by them in terms of having comfortable accommodation and an upper middle class lifestyle. 

21. While the applicant is not married, the Tribunal accepts the evidence at hearing that the applicant sees herself as her parents’ carer as she is their only offspring who lives in Iran and would be able to care for them into their older years.  The Tribunal considers that the applicant’s closeness to her parents, which is greater than that to her two brothers who live in Australia, represents an incentive for her to comply with her visa conditions and return to Iran. 

22. Further, the Tribunal notes that the applicant’s brothers are in Australia due to their skills or studies and did not flee Iran.  The Tribunal accepts the evidence at hearing that the family is not political and that the applicant has no interest in attracting attention to herself as a dissident, or in any other way, and that she has never had difficulties with the authorities in any form.  In any event, the facts presented by the family do not suggest that any claim of asylum would have credibility.

    cl.600.211(c)

23. The Tribunal has also considered all other relevant matters (cl.600.211(c)).   The Tribunal finds further comfort in that this visa requires the imposition of security.  Given the family’s positive financial circumstances, the Tribunal considers that it should be set at a meaningful level.

24. While the Tribunal cannot place weight on the intention of the sponsor, the Tribunal was persuaded by the sponsor’s credibility and his pride in his integrity and position in society as a law abiding professional.  The Tribunal is therefore satisfied that the sponsor will ensure that the applicant, and for that matter his parents, will abide by their visa conditions.

25. 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

26. 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.

    Rosa Gagliardi
    Member