GHELICHKHANI (Migration)

[2020] AATA 4572

GHELICHKHANI (Migration) [2020] AATA 4572 (2 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs MARYAM GHELICHKHANI

VISA APPLICANT:  Ms FERESHTEH DADPOUR

CASE NUMBER:  1827376

HOME AFFAIRS REFERENCE(S):          BCC2018/3215812

MEMBER:Roslyn Smidt

DATE:2 November 2020

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 2 November 2020 at 11:38 am

CATCHWORDS

MIGRATION – Visitor (Subclass FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and intention to comply with conditions – close and extended family in home country – previous compliant visit by another family member – review applicant’s intention to sponsor future visits by applicant and other family members – decision under review remitted

LEGISLATION

Migration Act 1965 (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 14 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 25 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 she was not satisfied that the visa applicant would comply with the conditions attached to a visitor visa.

5. The review applicant appeared before the Tribunal on 2 November 2020 to give evidence and present arguments. 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 a 66 year old retired teacher from Iran. In August 2018 she applied for a visitor visa a period of about three months to be with her daughter, the review applicant, during the final stages of a difficult pregnancy and following the birth of the child.  The visa applicant receives a state pension. She lives two adult daughters in Tehran, one of her whom has travelled twice to Australia in recent years on a visitor visa. She complied with the conditions on her visa.

8. The review applicant migrated to Australia on a skilled visa in 2015. She is married and has a one child. She and her husband both work full-time. At the hearing she stated that she and her husband would provide any support which her mother required during her proposed stay. She also said that she hoped to sponsor other family members to visit her in future and neither she nor her mother would do anything which would jeopardise this possibility.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter and grandchild in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)). As the visa applicant has never travelled to Australia it is not possible to assess her application against this criterion.

12. 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.

13. The visa applicant is 66 years old and retired. She receives a pension from the Iranian government. The review applicant is clearly willing and able to provide for any need she may have during her proposed stay in Australia. I am satisfied that the visa applicant will not work or engage in study or training while in Australia and therefore satisfied that she will comply with 8101 and 8201.

14. Condition 8503 relates to an entitlement and is not a condition that involves compliance. 

15. With regard to condition 8531, the visa applicant is a 66 year old woman with strong ties in Iran where she has lived all of her life and her most of her close and extended family reside. Apart from the review applicant, she has no ties in Australia. There is nothing in her current circumstances, the circumstances in Iran or the migration record of other family members which suggests that she wishes or intends to remain in Australia beyond any period specified on a visitor visa. The review applicant is clearly aware of the possible consequences if her mother failed to comply with this or any other condition placed on a visitor visa and I am satisfied that neither she nor the visa applicant would jeopardise possible further visits to Australia by the visa applicant or other family members. I believe that the incentives for the visa applicant to comply with this condition far outweigh any incentive to remain in Australia. I am satisfied that the visa applicant will comply with 8531.

16. I have also considered all relevant matters (cl.600.211(c)).

17. For the above reasons I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and find that the requirements of cl.600.211 are met.

    DECISION

18. 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.

    Roslyn Smidt
    Member