Irannejad (Migration)

[2021] AATA 5479

Irannejad (Migration) [2021] AATA 5479 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Farhad Irannejad

VISA APPLICANT:  Mr Morteza Irannejad

CASE NUMBER:  1935380

HOME AFFAIRS REFERENCE(S):          BCC2019/5188755

MEMBER:Stephen Witts

DATE:12 October 2021

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 12 October 2021 at 11:42am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting family – intention to comply with visa conditions – family’s travel and migration history – incentive to return home – decision under review remitted

LEGISLATION
Migration Act 1958 (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 Home Affairs on 3 November 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 16 October 2019. 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 (Cth) (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 visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 12 October 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the review applicant’s spouse, Ms Solmaz Eslami.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

   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 family. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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)). The Tribunal notes that there is no evidence of visa breaches by the applicants.

12. The Tribunal must also consider if appropriate 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):

    ·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. According to the delegate’s decision record dated 3 November 2019 provided to the Tribunal by the applicant’s the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

14. According to the delegate’s decision record the visa applicant is a 71-year-old (as at time of decision) Iran International residing in that country. According to the delegate he requested a visa to visit his son and daughter for tourism purposes. According to the delegate it noted that the visa applicant provided some evidence of personal funds and property ownership however assessing the application as a whole it was not satisfied that the visa applicant had a sufficient incentive to depart Australia at the end of a temporary stay. According to the delegate and also assessed that the visa applicant was married and will be travelling alone and had not provided evidence of any remaining dependent family ties to Iran. According to the delegate it also noted that it had considered the visa applicants travel history and previous visits to Australia.

15. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing. In particular the Tribunal notes that information regarding bank statements and property titles held by the visa applicant have been provided.

16. At the hearing the Tribunal had a discussion with the review applicant and his spouse who also gave evidence. The review applicant stated that he first arrived in 2008 to Australia while on a skilled migrant visa with his wife who was also on a skilled migration visa and that they are now Australian citizens. He stated that they have two children one aged four and one aged one and that his sister is also here and that she has one daughter. He stated that he has two sisters back in their home country of Iran. He stated that his father is now 74 years old and is retired but that he owns several properties which he has leased out. He stated that his father and mother lived together in Iran and his father has visited Australia on two occasions in 2009 and 2012 on visitor visas and has not overstayed any of his visas. He stated that in total he has had seven visitor visa grants here in Australia for family members and that his mother and father had visited twice, his mother has visited once by herself, his wife’s parents have visited twice, his sister has visited once and his mother-in-law has also visited once. He stated that none of his family have ever overstayed their visas. He stated that his father has also visited several countries in Europe including Netherlands and Germany and that he has also visited India, Japan, Turkey, and Dubai.

17. He stated that his father has a stable financially secure lifestyle back in his home country and various members of his family are also there including two of his daughters. He stated that as above his parents have visited him here in Australia either together or by themselves on several occasions and that they have never overstayed their visas. He stated that under no circumstances would his father if allowed to come here as a visitor ever overstay his visa or seek to stay here for a longer period of time.

18. The Tribunal has considered the evidence provided carefully by the parties and accepts the evidence provided as plausible and credible, that the visa applicant does have a significant personal incentive to return home, and that he intends a genuine temporary stay in Australia and that he would not seek to overstay his visitor visa if granted one. In particular the Tribunal notes that he has visited before as have several members of the family and they have not breached their visa conditions.

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

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.

    Stephen Witts
    Member