Jafari (Migration)

[2021] AATA 4776

Jafari (Migration) [2021] AATA 4776 (14 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Majid Jafari

VISA APPLICANT:  Mr Ahmad Jafari

CASE NUMBER:  1932448

HOME AFFAIRS REFERENCE(S):         BCC2019/4688603

MEMBER:David Crawshay

DATE OF ORAL DECISION:                   14 September 2021

DATE OF WRITTEN STATEMENT:        17 September 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 criterion for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 17 September 2021 at 1:40pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – two adult children and their families in Australia, large extended family in home country – circumstances of children in Australia do not apply to applicant – status, security and finances in home country – intention to comply with conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211(a), (b)

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 Home Affairs on 2 October 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 18 September 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 visa 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 intended to stay temporarily in Australia for the purposes for which the visa is granted.

5. The review applicant appeared before the Tribunal on 14 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the visa applicant’s daughter Mrs Fariba Parremore, and the visa applicant’s son-in-law,

   
   

   Mr Jamie Parremore. The hearing was held remotely by Microsoft Teams video as a joint hearing with the visa applicant’s wife, Mrs Sareh Rashidnia, as the other visa applicant. A decision in relation to her application for review has been made separately. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa 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 his Australian-based son and daughter and their respective families. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)). There is no evidence to show that the visa applicant has held a visa to come to Australia, substantive or otherwise.

10. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

11. The visa applicant is in his 60s and has been retired from his job as a policeman. Based on these factors, the Tribunal accepts that he will not seek to work or engage in study or training while in Australia. This evidence is given weight.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has considered that the visa applicant’s two children both arrived here [and were] granted visas. In the case of the review applicant, this was a [Specified visa 1] and for Mrs Parremore, a [Specified visa 2]. The Tribunal discussed the reasons why the review applicant and Mrs Parremore applied for these visas. [Details deleted]. The review applicant said [Details deleted]

13. At this point, the Tribunal told him that it wanted to be satisfied that the reasons for him applying for a [visa] did not apply to the visa applicant and Mrs Rashidnia. He said that they do not have the problems that he had. He said that his problems were 12 years ago. He said that he needed to do what he did for his family. Mrs Parremore told the Tribunal that the visa applicant and Mrs Rashidnia are old. She said that it was too late for them to begin life in another country where they do not know English. She said that they have much of their family in Iran – said by her to be at least 25 children and grandchildren. Mr Parremore told the Tribunal that he had spoken to the review applicant who told him that before he left Iran he had lost all faith in the government and was negative towards them. He said that the review applicant did not want to be in trouble due to this negativity.

14. Mrs Parremore told the Tribunal that there can be no comparison between the review applicant on the one hand and the visa applicant and Mrs Rashidnia on the other. She said that the review applicant brought his wife and child, whereas the visa applicant and

    
    

    Mrs Rashidnia would never leave their children in Iran.

15. The Tribunal discussed with the review applicant and Mr and Mrs Parremore the financial situation of the visa applicant and Mrs Rashidnia. Mr Parremore told it that since the delegate’s decision he had provided a page of the title deed to a property in Iran which had previously been missing, as well as evidence of the salary given to Mrs Rashidnia. This salary is in the form of a pension that was given to her due to her ex-spouse’s employment at a hydroelectric company. Mrs Parremore said that she did not receive any money after her ex-spouse’s death, but the company made a decision after 10 years to begin giving payments to her. During her questioning, Mrs Rashidnia told the Tribunal that she received monthly salary payments from the hydroelectric company that her ex-spouse used to work for. Based on the provision of documentary evidence and the consistency of testimony at hearing, the Tribunal accepts that she receives such an income.

16. It was submitted before hearing that the visa applicant receives a pension from the police after having served 30 years in the force. Based on the provision of documentary evidence, the Tribunal accepts he receives this pension.

17. Additionally, the Tribunal accepts based on the visa applicant’s status as a former member of the police force, and in the absence of information to the contrary, that he would likely not suffer from any issues to do with the security forces, this being a concern in light of the circumstances facing at least the review applicant.

18. The Tribunal accepts that it is apt to distinguish the visa applicant’s circumstances from those experienced by Mrs Parremore. [Details deleted]. Moreover, and having considered evidence including the visa applicant’s age, lack of English, status as a retired member of the police force and his ongoing pension, as well as the presence of many children, grandchildren and other relatives in Iran, the Tribunal accepts that his circumstances are vastly different from the review applicant’s, who fled Iran as a 37-year-old with his family after having experienced some fear of discrimination at the hands of the authorities. It accords more weight to evidence that the visa applicant has a settled life and will return to Iran within the validity of the visa period than to evidence that he would seek to remain here afterwards.

19. 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

20. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    David Crawshay
    Member