Hajtamiri (Migration)

[2019] AATA 2496

Hajtamiri (Migration) [2019] AATA 2496 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Aysa Hajtamiri

VISA APPLICANT:  Miss Elnaz Hajtamiri

CASE NUMBER:  1808354

HOME AFFAIRS REFERENCE(S):           BCC 2017/4740120

MEMBER:Brendan Darcy

DATE:24 May 2019

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 24 May 2019 at 11.32am.

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream– visiting family members– genuine temporary stay criterion – genuine intention to stay temporarily – strong incentives to depart Australia – compliant in the past – working in Canada –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 23 January 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 December 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 of a lack of supportive information. 

5. The review applicant appeared before the Tribunal on 24 May 2019 to give evidence and present arguments. The review applicant was represented in relation to the review by her registered migration agent, although he did not attend the hearing. 

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

   Background

7. The review applicant was born in Iran in 1982 and first arrived in Australia in 2011. Her and her spouse were granted permanent protection visa in 2014 and both were granted Australian citizenship.  

8. The visa applicant was born in Iran in 1984. She currently resides in Canada where she holds a temporary work visa.

9. The review and visa applicants claim to be biological sisters and the visa applicant wished to visit Australia for up to a three month period.

   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 biological sister and her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

    As the visa applicant has visited Australia in 2012 while holding a Class TR Subclass 676 visitor visa. The visa applicant departed Australia before this visa expired and there is no evidence before the Tribunal that she has not been non-compliant in the past.  Accordingly the Tribunal places much favourable weight towards the applicant intends to temporarily visit Australia. 

13. 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.

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

15. The visa applicant is a widow who does not have any dependent children. She does not own any property. However, she has a supportive family back in Tehran where she has worked on a full time basis as an accounts manager. When discussing the deteriorating economic and political situation in Iran, the Tribunal noted in the scheduled the visa applicant has clearly been incentivised to seek out work outside of Iran by working in Canada. These factors suggest the applicant does not have strong incentives in not returning to Iran.

16. It is also noted the review applicant and her husband applied for protection visas which were granted in 2014. However there is no evidence before the Tribunal they have a history of non-compliance with visa conditions.

17. Moreover, the visa applicant holds temporary residency status in Canada where she works full time in sponsored employment for a transport business. Should the visa applicant be granted the visa to temporarily visit Australia, it appears she has as strong financial incentive to depart Australia for Canada.

18. The review applicant explained to the Tribunal that her sister, the visa applicant, had travelled to various countries in the European Union and Asia and that she has never been non-compliant with the migration laws of those countries and has not applied for refugee status in those countries, although she had the opportunity to do so. Furthermore the visa applicant has been granted a visa to work and reside on a temporary basis in Canada, as evidenced by the copy of the visa attachment to the visa applicant’s Iranian passport. Since arriving in Canada, the visa applicant has not applied for a refugee status, although the opportunity is open to her. With no evidence to the country, the visa applicant’s international travel strongly invited the Tribunal to consider that she has strong record in being compliant with the migration laws and regulations of comparable countries and that she has not sought a protection visa or its equivalent solely for migration purposes. The Tribunal places considerable favourable weight on this.

19. The Tribunal also notes that the review applicant’s parents have visited Australia on two occasions , the most recent in 2018, on visitor visas and both returned within the permitted stay period. The Tribunal also places some weight on this in favour of the visa applicant.

20. The Tribunal also notes the review applicant and her husband jointly run a successful general medical practice and have the financial capacity and professional reputation in ensuring the visa applicant is not incentivised to work while in Australia and to orderly depart Australia without the visa applicant breaching any visa conditions imposed on her.

21. The fact remains the Islamic Republic of Iran remains a country whose economy struggles due to its long history of isolation and corrupt and oppressive governance. According to the most recent DFAT report on Iran, frustration over the state of the economy was a key driver of recent protects in late 2017/early 2018 and that poor economic opportunity act as a as a significant ‘push factor’ for emigration from Iran. The Tribunal does not discount these factors in finding the visa applicant will not stay temporarily in Australia for the purposes of a visitor visa.

22. Nevertheless, it is the overall view of the Tribunal that these concerns regarding risk factors not to temporarily visit Australia are outweighed by other positive aspects of the case.   The Tribunal is satisfied that the visa applicant has gainful employment in a country that is closely legally and economically comparable to Australia where the financial incentives to return to Canada are considerable. The visa applicant belongs to a relatively comfortable middle class family in Tehran and her relatives in Australia have a sound migration history of compliance. There is no evidence arising from her travel or visa history with Australia and other countries that she has breached the conditions imposed her in the past. The Tribunal finds there is insufficient evidence the applicant has any strong incentives to circumvent any visa conditions in order to remain in Australia longer than the expiry date of a visitor visa or to unlawfully work or study.

23. Considering the visa applicant’s circumstances cumulatively and for the reasons set out above, the Tribunal is satisfied that the visa applicant’s stated intention to visit Australia temporarily for the express purpose of visiting his sister and other family members residing in Australia is genuine.

24. 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

25. 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.

    Brendan Darcy
    Member