Ghiyaei (Migration)

[2018] AATA 4268

Ghiyaei (Migration) [2018] AATA 4268 (21 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Parisa Ghiyaei

VISA APPLICANT:  Mrs Samira Ghiaee

CASE NUMBER:  1710758

HOME AFFAIRS REFERENCE(S):           BCC2017/1073774

MEMBER:Nora Lamont

DATE:21 September 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 21 September 2018 at 12:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous travel history – transferrable funds and assets – unemployed – pension recipient – mother’s full time carer – no language skills – sponsor’s home available for visitors – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231

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 April 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 19 March 2017. 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 the applicant is not employed; she has limited immediate family members such as a spouse or dependent children and therefore has little incentive to return to Iran.

5. The review applicant appeared before the Tribunal on 21 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Farid Farrokhnazar the review applicant’s partner. The Tribunal was also provided with assistance from an interpreter in the Persian and English languages who assisted when calling the visa applicant in Iran.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

9. 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)).

10. The applicant has never held a visitor’s visa to Australia however the applicant has travelled to Russia, Thailand and India and complied with the conditions of her visa. The Tribunal has given weight to this.

    Background

11. The visa applicant is a 47 year female from Iran. Her sister the review applicant arrived in Australia in 2014 on a skilled visa. The initial application to the Department was for both the applicant’s sister and mother to travel to Australia for a visit. However, the mother was granted the visa but the sister was not. Since the initial application the applicant’s mother has travelled to Australia and returned to Iran. Because the mother is elderly and needs assistance to travel and the visa applicant was denied a visa, the review applicant returned to Iran and picked up her mother, flew back to Australia with her and then flew with her back to Iran. The Tribunal notes that the applicant’s mother was granted a visitor’s visa, travelled to Australia and abided by her visa conditions.

12. Provided with the application was a title deed for a home owned and lived in by the visa applicant and her mother, a bank statement, a trip itinerary, a police clearance, a further title to a home with shared ownership between the three sisters in the family, the visa applicants divorce certificate, a bank certified letter and a personal letter from the review applicant. Also provided was a temporary marriage certificate for the applicant.

13. The planned date of arrival was 14 April 2017.

14. The application was refused. The decision outlines that the applicant is unemployed and divorced with no children therefore she has little incentive to return to Iran. The delegate also found that while the applicant had travelled to Russia in 2016 that other factors outweighed this trip. The delegate also assessed that whilst the applicant had some funds and assets in Iran they were given little weight as they could easily be transferrable and these factors combined with the current economic situation in Iran did not satisfy the delegate that this was a genuine visit.

15. 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.

16. During the Tribunal hearing the applicant stated that while she is divorced she has been in an Iranian temporary marriage since 2016. The Tribunal noted to the applicant that it stated the temporary marriage ended in 2017, the applicant said she was still in the marriage and that she was going to get the marriage certificate extended. The Tribunal asked how the applicant’s temporary husband felt about her coming to Australia to visit and she said he was upset as he did not want her to leave him and he would miss her. The applicant also said she had a 2 year old dog she would need to get home too. I have given the applicants relationship status and her pet caring duties weight.

17. The applicant is a hairdresser by trade but since her mother is ill and has a nervous condition, the applicant is a fulltime carer for her mother. The applicant receives a pension from her father’s former employer. She has savings in the bank and she would pay for her trip to see her sister herself. She would stay with her sister where she could look after her mother during the day while the sister was at work. The review applicant’s boyfriend will also be available to spend time with the applicant should she come to Australia to visit. The Tribunal has also given weight to these factors.

18. The applicant does not have the language skills or a work history to indicate to the Tribunal that she would not comply with condition 8101 no work, nor has the applicant expressed any desire to study whilst in Australia. The applicant has travelled to other countries and returned home, the Tribunal can see no reason why the applicant would not comply with her Australian visa conditions.

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The review applicant is a settled Australian permanent resident with fulltime employment and a home for the visitors to stay upon arrival. The applicant’s mother is elderly and needs the support of her daughter who cares for her. The Tribunal has taken into consideration the applicants circumstances and the family’s strong desire to see each other and finds it compelling and credible.

20. 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

21. 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.

    Nora Lamont
    Member