JAFARPOUR (Migration)

[2018] AATA 1690

JAFARPOUR (Migration) [2018] AATA 1690 (5 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sara JAFARPOUR

VISA APPLICANT:  Mrs Gohar FALLAHMIARKOLAEI

CASE NUMBER:  1718594

DIBP REFERENCE(S):  BCC2017/2458012

MEMBER:Linda Holub

DATE:5 March 2018

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 05 March 2018 at 11:16am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Sponsored Family stream – Visiting and spending time with daughters – Genuine intention to stay temporarily – Positive migration history

LEGISLATION

Migration Act 1958, ss 65, 378

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.212, Schedule 8, Conditions 8101, 8201, 8531

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 10 August 2017 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 11 July 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 after considering the information that was provided as evidence the tribunal was not satisfied that the applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.  The review applicant was represented in relation to the review by her registered migration agent who attended the hearing.

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

   BACKGROUND

7. The review applicant is a Permanent Resident of Australia.  She was born in Iran in August 1983.  She came to Australia in February 2014 on a Higher Education (TU-573 visa) which was valid until 30 September 2016.  In November 2015 she applied for a [permanent] [visa].  She was granted [the permanent] visa on 16 September 2016.  She is married and her sister also lives in Australia.  Her sister is married to a New Zealand citizen who has residency rights in Australia.  [Details deleted].

8. The visa applicant is the review applicant’s mother and is a citizen of Iran. She is 60 years of age.  She has applied to travel to Australia for a third time with her husband, who travelled with her on her last visit in 2015.  In 2012 when she first came to Australia she travelled alone.  Both of the applicant’s children live in Australia.  The visa applicant is retired from her previous role as a teacher. Her last position was as a deputy principal of a school. She now receives a state pension[1]. About two years ago, she opened a shop selling ladies garments[2].  Her husband works in sales for a company.

   [1] DIBP file, folio 27.

   [2] DIBP file, folio 47.

   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 and spending time with her daughters.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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 visa applicant travelled to Australia on a Visitor (FA-600) visa in July 2012 and again in 2015.  On both occasions she complied with her visa conditions.

12. 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.

13. The review applicant undertook her Masters of Business Administration in Australia when she first came. She currently works as a part-time bookkeeper.  Since coming to Australia almost four years ago, her husband has worked as a courier.  The review applicant provided copies of her and her husband’s June 2016 tax assessment showing that their combined taxable income was in the order of  $35,000 in that financial year[3].  The applicant stated that about 4 or 5 months ago her husband started operating as an Uber driver, so in this financial year their income will be higher.

    [3] DIBP file, folios 28-29.

14. The review applicant stated that she and her husband live in rental accommodation and that their only assets are their two cars.  The Tribunal discussed with the applicant their savings noting that one of the accounts for which she provided a statement had a number of large cash deposits on one day[4].  She stated that her parents provide them with money from time to time.  In the past, while she was studying they did them more so regularly.  In response she referred to her parent’s strong positon and the fact that her sister and brother-in-law would be assisting in hosting her parents.

    [4] DIBP file, folios 115-116.

15. The review applicant stated that the review applicant will pay for her own airfare and living expenses.  Written evidence before the Tribunal indicates that the visa applicant has approximately $US65,000 in her bank account[5].  The Tribunal asked the review applicant how her mother managed to accumulate a reasonably large of sum.  She stated that the funds come from three sources – her own savings, a paternal inheritance and the account management with her husband, ie although their wealth is shared, the substantial part of their funds are in her mother’s account.  The review applicant also referred to her father’ having savings in his bank account.

    [5] DIBP file, folio 25.

16. There is nothing in the evidence before the Tribunal which suggests that the visa applicant would seek to work or study during her proposed visit.  The Tribunal put significant weight on the fact that she does not speak English. There is no evidence before the Tribunal that she attempted to work during her previous visits.  The Tribunal is satisfied she will comply with conditions 8101 and 8201.

17. Condition 8503 refers to entitlement and does not require compliance.

18. The review applicant stated that the incentives for her mother to return to Iran are her business and properties[6]. The visa applicant’s mother lives with her and her husband and has done so since she became widowed.  The review applicant stated that while her grandmother is in reasonable health, she needs support for her daily living and has high blood pressure that needs to be monitored.  The review applicant also referred to the visa applicant being close to her siblings and extended family as part of the incentives for her to return to Iran.  She stated that her mother has an active social life, which includes traveling in Iran and the region, hiking and swimming, which she undertakes with friends from her university days.  The review applicant also gave evidence that her mother is a devout but not a strict Muslim.  The fact of the applicant not speaking English was also referred to and the limitations that this would place on her ability to function independently.

    [6] DIBP file, folios 42, 43 and 54, page 2.

19. Both of the visa and review applicants stated that the visa applicant has not experienced any problems in Iran as a result of the political/security situation or because of her religion or ethnicity.  The review applicant stated that her mother is in good health.

20. With regard to condition 8531, the Tribunal put significant weight on the fact that the visa applicant has travelled to Australia on two previous occasions and on one of these was accompanied by her husband.  Visa conditions were complied with.

21. The Tribunal discussed at some length with the applicant [details deleted].  The Tribunal has taken the view that the circumstances of the visa applicant are very different t that of her daughter and son-in-law.  The Tribunal has given consideration to the review’s applicant’s limited financial capacity but has given positive weight to the fact that her parent’s financial position is strong and that her sister will also be hosting the visa applicant.  Overall, taking into account all the circumstances and her positive migration history, the Tribunal is satisfied that the visa applicant will not remain in Australia after the end of her permitted stay. 

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

23. 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

24. 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