Jamalzadeh Ahvazi (Migration)

[2020] AATA 5918

Jamalzadeh Ahvazi (Migration) [2020] AATA 5918 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Fariba Jamalzadeh Ahvazi

VISA APPLICANT:  Mrs Malekeh Maghoom

CASE NUMBER:  1901075

HOME AFFAIRS REFERENCE(S):          BCC2018/5758490

MEMBER:Justine Clarke

DATE:18 December 2020

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 18 December 2020 at 3:40pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visits – no plan for migrating to Australia – applicants could have applied for family visas – visa applicant’s care for grandchildren in Iran – property ownership and income in Iran – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.224, 600.611

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 6 January 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. On 20 December 2018, the visa applicant applied for the visa. At the time of this decision, the visa applicant is a 75-year-old national of Iran.

3. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

4. 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.

5. The review applicant is the second-born of the visa applicant’s four children. She is an Australian citizen, is employed as a child educator and is a mother.

6. The review applicant provided the Tribunal with a copy of the primary decision. 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 temporarily in Australia for the purpose for which the visa would be granted.

7. On 16 January 2019, the review applicant applied to the Tribunal for review of the decision to refuse the visa applicant the visa. Since 5 December 2019, the review applicant has been represented by a registered migration agent in relation to the review.

8. As noted in the primary decision, the visa applicant intends to travel to Australia with her spouse.

9. On 12 November 2020, the Tribunal wrote to the review applicant, by way of her representative, inviting her to attend a video hearing before the Tribunal on 21 December 2020. The Tribunal also arranged for a hearing in the review of the related case, being AAT case number 1901074 (concerning the refusal of a visitor visa for the present visa applicant’s spouse) to be heard immediately before the hearing in the present matter.

10. In mid-December 2020, the review applicant submitted detailed written submissions and further evidence. The Member reviewed this material, and, on 18 December 2020, the Tribunal informed the review applicant’s representative that the Tribunal considered that a hearing was no longer required in this matter or in the related matter. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the visa applicant’s favour based on the material before it. (A similar finding was made in respect of the related case).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. The visa applicant seeks the visa for the purpose of visiting her two adult daughters and their families. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

14. In assessing the issues, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file.

    Clause 600.211(a)

15. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated 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).

16. The evidence before the Tribunal is that the visa applicant has travelled to Australia twice previously. On both occasions, she travelled pursuant to a visitor visa.

17. As the review applicant explained in her written statement of 10 December 2018 (which was also before the delegate), ‘[m]y parents were here in June 2012 for four months and March 2014 during Persian New Year for only 45 days while having been granted 6 month visitor visa each time’.

18. The visa applicant’s movement records, which are on the Tribunal’s file, evidence that the first visa was granted on 19 March 2012. The visa applicant entered Australia on 30 June 2012 and departed on 20 November 2012—well before the visa ceased on 30 December 2012. This visa was granted without conditions.

19. The second visa was granted on 1 December 2013 and was subject to mandatory conditions 8101 (must not work in Australia) and 8201 (must not engage, for more than 3 months, in any studies or training). The visa applicant’s movement records evidence that she entered Australia on 11 March 2014 and departed on 26 April 2014—in compliance with the term of the visa which ceased on 26 April 2014.

20. The delegate gave limited weight to this travel history. Rather, the delegate noted that the visa applicant had not provided evidence of any overseas travel to countries that were similar to Australia such that could demonstrate compliance with immigration laws of other countries. In addition, the delegate noted that the visa applicant had been refused a visitor visa in March 2017 and that little had changed in the visa applicant’s personal circumstances since that earlier refusal.

21. It was submitted, in the written submissions dated 16 December 2020, that:

    If they don’t have extensive travel history [it] is not because every country had rejected their visa application, but it is mainly because they have never attempted to travel to the other countries except Australia which they came twice for visiting their children and returned back to Iran before their visas expired.

22. In addition, it was submitted that the visa applicant and her husband had not sought merits review of the 2017 refusal of their previous applications for visitor visas because ‘they thought they could easily sacrifice their one time visit’.

23. The Tribunal accepts these submissions.

24. In contrast to the delegate, the Tribunal considers that the evidence of the visa applicant’s previous travel to Australia and compliance with Australian immigration law weighs in favour of the claim that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of the visitor visa. The Tribunal gives great weight to this evidence.

    Clause 600.211(b)

25. 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).

26. The Tribunal notes that the visa applicant applied under the Tourist stream rather than the Sponsored Family stream. There is nothing on the Department’s file which indicates that the delegate required a sponsorship under cl.600.224. Therefore, the conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)(a)):

    ·            8101 – must not work in Australia; and 

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

27. As discussed, one of the previous visitor visas that was granted to the visa applicant was subject to conditions 8101 and 8201. There is no evidence before the Tribunal of any failure to comply with the conditions of the previous visa.

28. The Tribunal has no reason to doubt the claims made in the application for the visa that the visa applicant intends to comply with visa conditions. Rather, the visa applicant’s advanced age, the evidence that she is a housewife and her previous compliance with conditions 8101 and 8201 strongly suggest that the visa applicant does not have an intention to work or study in Australia in breach of conditions 8101 and 8201.

29. Condition 600.611(3)(b) provides that the following conditions may be imposed:

    ·8501 – must maintain adequate arrangements for health insurance while the holder is in Australia;

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia; and

    ·8558 – must not stay in Australia for more than 12 months in any period of 18 months.

30. The Tribunal notes that cl.600.211(b) refers specifically to the conditions to which the visa ‘would be subject’. There is nothing on the Department’s file or in the delegate’s decision which states the relevant conditions which ‘may be imposed’ on this visa. In this context, and given the speculative nature of assessing whether a discretionary condition may or may not be imposed by a decision-maker in the future, the Tribunal considers that, in the circumstances, it is appropriate to consider the mandatory conditions only as conditions to which the visa ‘would be subject’.

31. Notwithstanding, the Tribunal considers that the written submissions of 16 December 2020 satisfactorily address any possible concern that the Department may have about non-compliance with conditions 8503 or 8558. It was submitted that the visa applicant and her husband ‘have no plan for migrating to Australia at all’, rather that ‘they only wish to visit their children [in] Australia for a short time’.

32. The submissions provide background about why the visa applicant and her husband do not have reason to seek protection in Australia, stating that they are ‘very committed Muslims and are very satisfied with their faith in Islam’.

33. It was further submitted:

    Had they planned to come and live in Australia, they would have applied for the contributory parent visa SC 143 on the ground of having 50% of their children are citizens and Permanent residents of Australia but they have never attempted to apply for such visas because they found it unnecessary to do that. 

34. The Tribunal accepts these submissions.

35. The Tribunal considers that the evidence of the visa applicant’s previous compliance with conditions 8101 and 8201 weighs in favour of the visa applicant intending to comply with the conditions to which the Subclass 600 visa would be subject and also weighs in favour of the visa applicant having a genuine intention to visit Australia temporarily.

    Clause 600.211(c)

36. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

37. In the primary decision, the delegate noted that the visa applicant has non-dependent children and other family members who would remain in Iran for the duration of the visa applicant’s proposed visit to Australia but notwithstanding, the delegate expressed the view that the visa applicant had not provided sufficient evidence of her economic circumstances that would act as an incentive for the visa applicant to return to Iran at the end of the proposed visit. The delegate remarked that the visa applicant had provided no evidence of her personal funds or assets. The delegate did not raise country information as a concern.  

38. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the visa applicant has some family members in Australia, notably the review applicant and her daughter Maryam and their families.

39. With respect to factors that would act as an incentive for the visa applicant to return to Iran after the permitted stay, on 10 December 2018, the review applicant stated, ‘my parents are very committed to their lives in Iran and are very attached to their family. They have a very close relationship with their siblings and cannot live apart from them for long and vice versa’.

40. It was submitted, in the written submissions of 16 December 2020, that the visa applicant has two brothers and three sisters and that ‘[t]hey are close to each other very much and meet every week and make food for Islamic charity together’.

41. Further, it was submitted that the visa applicant and her husband ‘are very attached to their home and two children living in Iran’. It was submitted that their daughter Farzaneh, her husband and two children live on the top level of the visa applicant’s house in Ahvaz, Iran. Details were given of Farzaneh’s employment, as well as the employment of the visa applicant’s son Mohsen, who lives in Isfahan, Iran. It was submitted that the visa applicant and her husband look after Farzaneh’s 16-year-old daughter and 9-year-old son. The visa applicant had earlier stated that her parents care for these grandchildren while the children’s parents work full-time.[1]

    [1]        In her statement of 10 December 2018.

42. The evidence before the Tribunal is that the visa applicant is a housewife. The evidence is that her husband is retired, having previously worked as a clerk at a university.

43. The submissions continued by stating that the visa applicant and her husband live in their own home, rely on their retirement salary and ‘go for a walk every afternoon and greet with their neighbours and friends. They enjoy their life’s routine and would not want to change this with other programs’. Further, it was submitted:

    They have enough income and privacy and have no reason to change their comfort with coming to Australia where they can’t even speak English language, they have no one but two of their daughters in here. They don’t have any friend, any connection, no ability to work and no ability to learn their way around. They cannot communicate with anyone in Australia and cannot learn the Australian culture at the age of 76. In fact, they would have no reason to put themselves into much hardship to do that. 

44. Some documentary evidence was submitted to the Tribunal in respect of the visa applicant’s husband’s financial circumstances, namely a title deed to a property in Iran in his name (provided to the Department earlier) as well as evidence of his income from his pension, and evidence that the amount had been increased.

45. The Tribunal notes that the review applicant, the visa applicant and the visa applicant’s husband were all willing to provide oral evidence to the Tribunal at the scheduled hearing. The review applicant’s employment in a respected profession and the visa applicant’s husband’s previous employment in a respected position as well as the material before the Tribunal cause the Tribunal to have no doubt that they would have given anything other than consistent and corroborating evidence about these various aspects of the submissions outlining the visa applicant’s life in Iran.

46. In view of the submissions and evidence submitted to the Tribunal, the Tribunal does not share the delegate’s view that the visa applicant has not sufficiently demonstrated that she intends a genuine visit to Australia. Rather, the Tribunal considers that the evidence weighs in favour of the visa applicant having a genuine intention to visit Australia temporarily.

    CONCLUSION

47. After considering all the evidence before it, including the visa applicant’s personal circumstances, on balance the Tribunal considers that the visa applicant’s access to her husband’s asset and income, the presence of a number of key family members in Iran and her familiarity with the Iranian way of life form stronger incentives for her to return to Iran than the incentive to remain in Australia with her two daughter and their families.

48. 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

49. 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.

    Justine Clarke
    Member