Helmi Tabrizi (Migration)

[2019] AATA 4815

Helmi Tabrizi (Migration) [2019] AATA 4815 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Pouya Helmi Tabrizi

VISA APPLICANT:  Mrs Mehri Mostofi

CASE NUMBER:  1808034

HOME AFFAIRS REFERENCE(S):           BCC2017/4818916

MEMBER:Kira Raif

DATE:14 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 14 October 2019 at 3:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream–genuine temporary stay criterion – applicant was previously refused a visitor visa – all three children in Australia –strong incentive remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 359, 360

Migration Regulations 1994, Schedule 2, cls 600.211, 600.612, 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 16 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 is a national of Iran, born in May 1960. She applied for the visa on 16 December 2017. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he delegate was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 14 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian), Persian and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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.

5. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.

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

7. 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)).

8. 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.

   Does the visa applicant genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted?

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

10. The delegate has considered the visa applicant’s personal circumstances, noting that she had never been employed and did not have employment commitments in her home country. The delegate noted that the applicant provided evidence of funds but noted that such assets were transferable or could be accessed from Australia. The delegate noted that while the visa applicant had a husband in Iran, her children and sister were living in Australia and could provide the visa applicant with an incentive to remain in Australia. The delegate also noted that the visa applicant was previously refused a visitor visa in February 2017.

11. The applicant provided with his application for review a statement dated 22 March 2019. The applicant stated that he has not seen his mother for 8 years and her previous applications had been refused. The review applicant states that his mother has no intention to overstay and has commitments and responsibilities in Iran. The review applicant states that his mother is aware of visa conditions and will comply.

12. In March 2018 the review applicant provided to the Tribunal an unsigned statement from Ms Rebecca Mallia-Blanco, a psychologist. Ms Mallia-Blanco refers to the ongoing treatment of the review applicant’s brother Arishia for trauma related anxiety and depression. Ms Mallia-Blanco expressed her support for the visa application, noting that the visa applicant has not seen her children since they fled Iran due to the safety considerations. It is stated that Arishia requires meaningful contact with his mother, given his isolation and struggle to overcome anxiety.

13. The Tribunal accepts the professional opinion expressed in Ms Mallia-Blanco’s report. However, the Tribunal finds that evidence problematic. If it is accepted that due to his circumstances and medical condition the review applicant’s brother requires the presence of his mother in Australia, there is nothing to suggest that this condition would be overcome or adequately treated and resolved during the visa applicant’s stay in Australia. It is unlikely that such a prediction can be made. The Tribunal is concerned that should Arishia’s condition continue beyond the period of the authorised stay, the visa applicant may wish to extend her stay in Australia in order to care for her son.  That is, she may not comply with condition 8531 that would be imposed on her visa.

14. The Tribunal is also mindful that Ms Mallia-Blanco refers to the family’s situation in Iran and the reasons why the review applicant fled Iran. Such matters may also constitute a strong incentive for the visa applicant to remain in Australia beyond the period of validity of her visa.

15. The review applicant told the Tribunal in oral evidence that he and his brother had not seen their mother for ten years. Mentally, he needs to see his mother and even a short period of three months or six months would be sufficient.

16. The review applicant states that his father runs a pharmaceutical business and his mother also works in that business by helping in the pharmacy. The Tribunal accepts that the presence of her husband, and business involvement, may cause an incentive for the visa applicant to return to Iran, however, the Tribunal also notes the review applicant’s evidence that his mother would visit Australia for three and up to six months. In the Tribunal’s view, such a lengthy period of stay in Australia is not consistent with the visa applicant’s commitments in Iran. The review applicant confirmed that other people can help with the business. As such, the Tribunal does not consider that the presence of her husband and work commitments in Iran would constitute a meaningful incentive for the visa applicant to return to Iran. The Tribunal also notes the review applicant’s evidence that the visa applicant has all her children - three sons - in Australia. The review applicant’s evidence to the Tribunal is that he and his brother are Australian citizens and one brother is an Australian permanent resident. If the presence of her husband may constitute an incentive for the visa applicant to return to Iran, the presence of all three children in Australia may equally constitute a strong incentive for the visa applicant to remain in Australia.

17. The review applicant said that the visa applicant can put up a house as a security. The Tribunal notes that there would be no opportunity to enforce a security provided overseas.

18. The visa applicant had not previously travelled to Australia and she has not demonstrated compliance with visa conditions in the past. There is nothing to suggest that the visa applicant has not complied with visa conditions in the past. The review applicant told the Tribunal that she has travelled to Turkey and Dubai for holidays and there is no evidence of any non-compliance with immigration requirements. The Tribunal is satisfied that the visa applicant meets cl. 600.211(a).

19. The Tribunal has considered whether the visa applicant intends to comply with visa conditions, and other relevant matters. As noted above, all of the visa applicant’s children are in Australia and the Tribunal has formed the view that their presence in Australia would form a significant incentive for her to stay in Australia.

20. The review applicant told the Tribunal that he and his two siblings obtained permanent residence visas. However, the review applicant states that their case was political but the same does not apply to their mother. However, given that all three children have made applications for permanent visas and had been successful, the Tribunal considers there is at least a possibility that the visa applicant may also wish to make an application for another visa to remain in Australia for a longer period.

21. The review applicant refers to his brother’s condition, stating that they had not seen their mother for ten years and his brother needs to see his mother. The Tribunal has considered the 2017 and 2018 psychological reports. As noted above, the reports indicate that the review applicant’s brother would benefit from the presence of his mother in Australia. While the Tribunal accepts that evidence, the Tribunal is concerned that if the brother’s condition does not improve within the visa period, the visa applicant may have a strong desire to remain in Australia for a longer period. In the Tribunal’s view, it is difficult to predict whether the brother’s condition would improve, or that he will be sufficiently well within the period of the visa validity that would enable the visa applicant to return to her home country.

22. The review applicant spoke about his own medical condition and an operation he had and he states that he had a bad time after the accident and that they deserve to have his mother present. The Tribunal accepts that the review applicant and his siblings wish to see their mother but the Tribunal must be satisfied that she genuinely intends to stay temporarily in Australia and that close relationship between the visa applicant and her children in Australia may be an incentive for her to remain in Australia after the end of permitted stay.

23. Overall, the Tribunal accepts that the visa applicant may have some incentives to return to Iran, most notably the presence of her husband there and some employment commitments. However, the Tribunal has formed the view that the presence of all three children in Australia would form a very strong incentive for the visa applicant to remain in Australia. This is particularly so in light of the review applicant’s and his brother’s circumstances as they had not seen their mother for ten years and the review applicant’s evidence to the Tribunal is that it would be difficult for them to meet in another country. The Tribunal also places weight on the brother’s medical condition and is of the view that the condition may also cause the visa applicant to wish to remain in Australia for longer than the period authorised by the visa.

24. For all these reasons, the Tribunal has formed the view that the visa applicant may wish to remain in Australia beyond the period permitted by the visa or that she may wish to make an application for another visa in Australia to enable to her remain in Australia. Having considered the totality of the visa applicant’s circumstances, the Tribunal is not satisfied the visa applicant intends to comply with conditions 8503 and 8531 if she is granted the visa. The Tribunal is not satisfied the visa applicant meets cl. 600.211(b). The Tribunal is not satisfied the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. She does not meet cl. 600.211.

    Conclusion

25. For the above reasons the Tribunal is not 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 not met.

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Kira Raif
    Senior Member