Haghighi (Migration)

[2020] AATA 6091

Haghighi (Migration) [2020] AATA 6091 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Behnaz Haghighi

VISA APPLICANT:  Mrs Melika Rostamipour

CASE NUMBER:  1818178

HOME AFFAIRS REFERENCE(S):          BCC2018/1318052

MEMBER:Linda Holub

DATE:18 December 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 18 December 2020 at 12:45 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant’s husband to remain in Iran – previous compliant family visit – limited employment leave granted to visa applicant – offer of security bond – visa applicant chose to remain in Iran – decision under review remitted           

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 April 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 20 March 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 Tourist 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 delegate was not satisfied that the applicant genuinely intends to visit Australia temporarily. The delegate also referred to likelihood of the applicant overstaying or seeking to remain in Australia.

5. The review applicant appeared before the Tribunal on 25 November 2020 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages. The review applicant was represented in relation to the review by her registered migration agent who also attended the hearing by telephone. The Tribunal attempted to telephone the visa applicant several times including on a second number that was provided during the course of the hearing but without success.

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

BACKGROUND

1. The visa applicant is the review applicant’s daughter. She is a 26-year-old Iranian citizen. She is married and states that she will be travelling to Australia to visit her family without her husband.

2. The review applicant is a 61-year-old woman. She first arrived in Australia on 2 February 2015 as a holder of a visitor visa. She was granted [a permanent visa] on 6 July 2016 and on 27 August 2020 she became an Australian citizen by grant. In a Statutory Declaration of 11 November 2020, she declared that:

   I entered Australia on a temporary visitor visa and then applied for [a permanent visa].

   My [visa application was] assessed and accepted by a departmental officer after a short interview.

After my [visa] was granted on 06 July 2016, I nominated my husband for entry to Australia as my partner. By then [the visa applicant] had already married her and made her intention to remain in Iran with her husband clear to us. The [visa applicant] and her husband have known each other for a long time as he is my mother's paternal aunt's grandson.

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 visa applicant seeks the visa for the purposes of visiting her family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12) 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)).

13) The visa applicant has not previously travelled to Australia but has travelled to Turkey on one occasion.

14) At hearing the review applicant stated that one of her sister’s made a compliant visit to Australia in 2016. The review applicant provided details of her sister and the Tribunal advised that it would review the Department’s movement records in respect of her sister and give them positive weight if they were consistent with the review applicant’s evidence.

15) The movement record shows that the review applicant’s sister was granted a Subclass 600 (Visitor) visa on 2 February 2015 which was valid until 8 April 2015. She arrived in Australia on 30 March 2015 and departed Australia on 8 April 2020.

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.600.611(2).

·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) In the review applicant’s Statutory Declaration of 11 November 2020, she declared that she lives with her husband. Two of her brothers live in Turkey on a permanent basis, and that one of her brothers holds NZ citizenship but lives in Australia. One of her sister’s is an Australian citizen and is a Sufi practitioner. Her mother also lives in Australia.

18) The Tribunal was provided with a certificate dated 17 November 2020 stating that the visa applicant has been employed as a cartographer since January 2018 and it refers to her monthly salary. It states that she has been granted leave of absence “only for a period 30 days for visiting her family, subject to written notice from two weeks in advance and replacement of another employee”. Evidence was provided of her savings.

19) The visa applicant will self-fund her trip and her family will provide her with accommodation. She provided copies of her bank deposits as at 15 March 2018 and a more recent bank statement dated 15 November 2020.

20) The review applicant submitted bank statements to the AAT in relation to her request for priority review. In her Statutory Declaration she says that she is willing to put up a bond to the Department as security for her daughter’s compliance with visa conditions.

21) In a Statutory Declaration of 11 November 2020 the review applicant declared that the visa applicant was adamant that she would remain in Iran with her husband whom she married in October 2015 with the knowledge that if she had remained single, she would have been able to migrate Australia. She state that the visa applicant and her husband have never expressed any desire to migrate or live in any other country as they both love living in their home city of Shiraz. They have both had the opportunity of living in Turkey through the review applicant’s two brothers.

22) [Details deleted.]

23) The Tribunal put to the review applicant that although the visa applicant had made a decision to not to be added to the [review applicant’s] visa application at the time the review applicant [applied], that does not mean that she has not changed her mind about wishing to remain in Australia. The review applicant responded that the visa applicant knew that if she married in Iran, she would not be able to come to Australia. She stated that her intention to remain in Iran with her husband. She stated that the visa applicant and her husband have never expressed any desire to migrate or live in any other country as they both love living in their home city of Shiraz. They have both had the opportunity of living in Turkey through the review applicant’s two brothers.

24) The review applicant also declared that the visa applicant is busy with her work at a private sector company and her husband is a highly paid electrical engineer employed in the private sector. They live in a grand old house inherited from by the visa applicant’s husband. The review applicant stated they do not pay any rent which means they have enough income and savings to finance the visa applicant’s short trip to Australia. She declared that the visa applicant is a very secular person and has a passion for music and that she and her husband perform in family and  friends' gatherings.

25) The Tribunal acknowledged the above-mentioned incentives for her to return to Iran and asked the review applicant if there are any further aspects. She had many friends and family members in Iran. She stated that she enjoys her life in Iran, and has a large number of relatives in her extended family and also close to her husband’s family.

26) The Tribunal was provided with a medical certificate dated 16 November 2020 stating that the review applicant suffers from severe depression and anxiety and that she is seeking a clinical psychologist. The GP asserts that a visit from her daughter will have a great positive effect on the review applicant.

Oral submissions made by the applicant’s migration representative

27) The applicant’s migration representative stated that he wishes the Tribunal to note that the visa applicant is the only child of the review applicant. Although she has not had travelled overseas travel, she was aware of the choice she was making to remain in Iran when she married. [Details deleted.].

28) The applicant’s migration representative stated they were about to provide psychological report on behalf of the review applicant. He stated she is quite elderly and frail (despite the fact she is 61 years old). He stated the evidence of her health condition is that she is receives a disability pension due to a number of ailments she suffers from. He stated that travelling overseas is not an easy proposition for the review applicant because of her physical health. Furthermore, he stated that her income is quite limited, and she would not be able to raise funds for tickets, especially during the Covid-19 when ticket prices have skyrocketed.

29) The Tribunal asked the migration representative how this is consistent with the claim made at paragraph 25 of the Statutory Declaration that the review applicant “would have no financial difficulty in depositing any required sum of money to the Home Affairs nominated bank account”. He stated that she would be able to put down a bond through the offer of support from her brother who is a real estate agent. Because the bond will be returned when the visa applicant departs the family will not be disadvantaged by this.

30) The Tribunal noted this advice but pointed out that as the visa applicant applied in the tourist stream of the Visitor visa subclass, the option of putting down a bond is not an option available to the family.

31) The representative concluded his remarks by repeating that the visa applicant’s genuine intention to visit for one month.

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

FINDINGS

33) Having regard to before it, the Tribunal is prepared to accept that it would be difficult for the review applicant to travel to Iran given her [health conditions]. The Tribunal accepts that the visa applicant wishes to come to Australia for the purpose of visiting her parents and there is the added issue regarding her mother’s health condition.

34) The Tribunal has given careful consideration to the fact that the review applicant and other relatives of the visa applicant have [permanent residence] in Australia. In considering this, the Tribunal has taken account of the timing of the review applicant’s [permanent visa] application and the visa applicant’s marriage is prepared to accept that she chose to remain in [Iran]. The Tribunal is prepared to accept that the circumstances of the review applicant and her daughter are sufficiently different.

35)  The Tribunal has put some positive weight on the fact that one of the review applicant’s sister’s visited Australia and returned to Iran.

36) The Tribunal accepts that the visa applicant can fund the cost of her airfare and that she will stay with the review applicant while she is in Australia. The Tribunal accepts that the visa applicant has no intention of working, studying or undertaking any training in Australia.

37) The Tribunal accepts that the visa applicant’s husband and her job provide sufficient incentives for her to return to her country of residence at the end of her permitted stay in Australia. Condition 8503 refers to entitlement and does not require compliance.  The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

38) 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,

DECISION

39) 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.

Linda Holub
Member