Ghaffarijadidi (Migration)

[2017] AATA 1655

Ghaffarijadidi (Migration) [2017] AATA 1655 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abouzar Ghaffarijadidi

VISA APPLICANTS:  Mrs Shirin Ghaffarijadidi (1)
Miss Nozhin Nersi (2)
Master Noyan Nersi (3)

CASE NUMBER:  1706218

DIBP REFERENCE(S):  BCC2017/378276

MEMBER:Ian Garnham

DATE:18 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 18 September 2017 at 12:31pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine visitor – Previous family compliance with visas – Business commitments in Iran – Employment leave requested – Child’s absence from school – Family members remaining in Iran

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 600.211, cl 600.221, cl 600.222, cl 600.611

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 19 February 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 29 January 2017.  The first visa applicant is the 41yo sister of the review applicant and she is a citizen of Iran.  The 2^nd and 3^rd visa applicants are two of her three children; a now 9yo daughter and a 4yo son respectively.   

3. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Tourist stream.

4. 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.

5. The delegate refused to grant the visas, on the basis that the first visa applicant did not meet cl.600.211 because they were not satisfied that the visa applicant genuinely intended a temporary stay in Australia.  Because the 2^nd and 3^rd visa applicants are minors and the 1^st visa applicant’s visa had been refused their applications were also refused.   

6. The review applicant appeared before the Tribunal on 16 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the 1^st visa applicant by conference telephone.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian, Farsi (Persian) and English languages.

8. The review applicant was not represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

10.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.

11.In the present case, the 1^st visa applicant seeks the visa for the purpose of visiting her brother.  The 2^nd and 3^rd visa applicants are minors and are seeking to accompany their mother to visit their uncle, the review applicant.  These are purposes for which visas in the Tourist stream may be granted: cl.600.221 and cl.600.222.

Background:

12.The review applicant is a 37yo chemical engineer who married in 2007 and has a child who is almost 2 years old.  He came to Australia on 10/08/12 on a temporary skilled regional subclass 475 visa.  He was granted a permanent skilled regional subclass 887 visa on 02/01/15 and became an Australian citizen on 09/03/17.  Since arriving in Australia the review applicant has not departed.

13.The review applicant was born in and grew up in Iran.  He has 3 siblings who all live in Iran.  A 50yo sister who is married and has 2 children (including his niece who is currently studying in Australia), the 1^st visa applicant who is married and has 3 children (including the 2^nd and 3^rd visa applicants), and a 34yo brother who is married and has no children.   

14.The review applicant lives in a 4 bedroom house with his wife and young child.  He is also providing accommodation for his 17yo niece while she is studying in Australia.  The review applicant also said that his parents have been granted subclass 600 visas and that they were arriving in Australia on the day of the hearing.

cl.600.211(a):

15.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.

16.The visa applicant has never travelled to Australia.  However, other family members have done so, and there is no evidence before the Tribunal that they have failed to comply with the conditions of their visas.

17.The review applicant said that his younger brother honeymooned in Australia following his marriage.  The review applicant also said his parents visited him and his family for 3 months in early 2016 following the birth of his child.  In addition, the review applicant said that his parents had recently been granted tourist visas that are effective for 12 months.

18.Unfortunately the Tribunal was unable to locate Movement Details of the review applicant’s mother from the DIBP database.  Nevertheless due to the credibility of the applicant’s evidence the Tribunal accept that the review applicant’s mother has travelled with the applicants’ father on both occasions that he has travelled to Australia.

19.The review applicant’s father’s Movement Details show that they arrived in Australia on 27/02/16 on visas that ceased to have effect on 22/05/16 and they departed on that day.  The review applicant’s parents next arrived in Australia on 16/06/17 and they have tourist visas that cease to have effect on 16/06/18. 

20.I acknowledge that other members of the review applicant’s family have previously travelled to Australia as set out above and there is no evidence that they have failed to comply with the conditions of their visas.

cl.600.211(b):

21.The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas would be subject (The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)):

·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.

22.Because the 2^nd and 3^rd applicants are young children their compliance with the above conditions is totally dependent on the conduct of the 1^st visa applicant.

23.I am satisfied based on the documentation and the evidence of the 1^st visa applicant that it is highly unlikely that she would seek to work or study in Australia.  The 1^st visa applicant is an agricultural engineer and claims she has worked for the Iranian Government on an intermittent contractual basis for about 10 years and for the last 2 years has been on a full-time contract.  With the applications she provided a copy of an increase in the terms of her employment contract dated 9 June 2016.[1]  This document shows that; at that time, the years of service were 1 year and 1 month and the increases to her salary were made effective from 20/03/16.  A payslip was also provided that shows for the month of December 2016 she received a net pay of 12,922,676 Rials (approximately $500 AUD).[2]  

[1] At F: 10 (DIBP)

[2] At F: 2 (DIBP)

24.In addition, the visa applicant claimed that she and her husband operate 2 businesses that have shop fronts and are staffed by others.  I requested evidence of these enterprises and on 3 July the review applicant provided the following translated documents:

·Bill of Sale for commercial shop registered on 10/02/13 for a commercial unit of 12m² in the 1^st visa applicant’s husband’s name.[3]

[3] At FF: 45&46 (AAT)

·Bill of Sale for commercial shop registered on 10/02/13 for a commercial unit of 12m² in the 1^st visa applicant’s name.[4]

[4] At FF: 43&44 (AAT)

·Bank account statement for the 1^st visa applicant’s husband showing a balance of 20,216,000 Rials on 20/06/17[5]

[5] At F: 48 (AAT)

·Bank account statement for the 1^st visa applicant showing a balance of 295,153,000 Rials on 20/06/17[6]

[6] At F: 47 (AAT)

25.I am satisfied that the 1st visa applicant and her husband each own a commercial unit that operate as shop fronts and generate income.     

26.The 1^st visa applicant and her husband’s employment income and their commercial income from the commercial units provide a significant financial basis for the visa applicants to remain temporarily in Australia and not seek employment or study during a temporary stay.

27.Compliance or otherwise with conditions 8503 and 8351 by the visa applicants turns on their incentives to return to Iran.  These matters are considered along with other relevant matters and are discussed below.  

cl.600.211(c):

28.The Tribunal has also considered all other relevant matters that provide an incentive for the visa applicant’s to return to Iran.

29.With the applications the 1^st visa applicant has provided a copy of a leave application form dated 27/12/16 for the following periods; 25/03/17 to 19/04/1[7][8]. The application is for paid leave. The visa applicant said that the application for leave was made in association with the visa applications and because this opportunity to travel has been missed she can renew her request for absence from work. As such I am satisfied that the 1^st visa applicant is in a position with respect to her employment to obtain approximately one month of leave to enable her to travel to Australia with her 2 younger children.

[8] At F: 6 (DIBP)

30.With respect to the visa applicant’s children and their schooling; the visa applicant advised the Tribunal that her youngest child (3^rd visa applicant) has not begun schooling and that her middle child (2^nd visa applicant) is in Elementary school and able to miss a period of schooling for approximately one month without such an absence seriously affecting her academic progress.  The applicants have provided a statement from the 2^nd visa applicant’s school attesting to her current study at this level.[9]

[9] At F: 36 (AAT)

31.In contrast, the visa applicant’s oldest child is 14 years old and attending High school.  When the applications were made, the visa applicant said it was considered inappropriate to take him out of school and her husband will care for him during the period of travel.  I am satisfied that the speculative plans that have been made by the visa applicant and her husband with respect to their children’s schooling are consistent with a genuine planned temporary visit to Australia. 

32.I am also satisfied that  the 1^st visa applicant’s family members remaining in Iran (her husband and oldest child, sister and family, and brother) represent significant family members and strong incentive for all of the visa applicants to return to Iran after visiting the review applicant and his family.  

33.Both the review applicant and the visa applicant, independently, gave consistent evidence to the Tribunal that the review applicant has issues with returning to Iran related to his work that prevent him from travelling there to allow family reunification.  I also note that this evidence is consistent with the Movement Details of the review applicant having not returned to Iran since coming to Australia in 2012.  

34.For the above reasons the Tribunal is satisfied that the visa applicants 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

35.The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Ian Garnham
Member