Javadifar (Migration)

[2017] AATA 3002

Javadifar (Migration) [2017] AATA 3002 (14 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr David Javadifar

VISA APPLICANT:  Mrs Akram Felfeli

CASE NUMBER:  1720654

DIBP REFERENCE(S):  BCC2017/923872

MEMBER:Stavros Georgiadis

DATE:14 December 2017

PLACE OF DECISION:  Adelaide

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 14 December 2017 at 4:50pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Frequent travel outside of Iran – Family relations in Australia – Desire to make return visits in the future – Age and financial independence

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.211

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 24 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 15 August 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 Tourist 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 as the delegate was not satisfied that the visa applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 14 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse who is the visa applicant’s daughter-in-law. The Tribunal hearing was held as a combined hearing with related matter 1720656 in which that visa applicant is a relative of the visa applicant in this matter (daughter and mother respectively). The Tribunal hearing was conducted with the assistance of an interpreter in the Persian (Farsi) 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 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.

8. In the present case, the visa applicant seeks the visa for the purpose of travelling to Australia with her daughter to visit family members including her son and his family, and a grand-daughter whom she has yet to meet in person. 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)).

10. The oral evidence before the Tribunal is that the visa applicant has not previously travelled to Australia. There is therefore, no evidence either way, of non-compliance with conditions of a previously held visa.  The Tribunal notes however, that the visa applicant has on other occasions, left her home in Teheran, Iran to visit other countries and subsequently returned to Iran without hindrance.  The oral evidence is supported by documents including immigration stamps on the visa applicants’ passport that they have left Iran and subsequently returned. This includes a trip to Denmark in 2001 to visit a daughter there, and also religious pilgrimages to Saudi Arabia in 2016 (to undertake the Haj) and also to Karbala, Iraq of that same year.  The submission and oral evidence is that the visa applicant has complied with all immigration requirements when leaving and returning to her home in Iran on these other occasions.

11. 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.

12. The visa applicant is the review applicant’s mother. She plans to travel to Australia with her daughter who is the visa applicant in the other related matter. The Tribunal notes the visa applicants’ ages of 88 years (DOB 25/7/29) and 57 years (DOB 9/12/60) respectively. The review applicant was [under] a [type of] visa several years ago.  He has not returned to [Iran].  As a consequence, he has not seen his mother and sister for some six years.  As aforementioned, the visa applicants have yet to meet their grand-daughter / niece, Helen, who is aged 5 years, as she was born in Australia. There are also two other children in Australia, Anita and Shahin, who are said to be close to their grandmother and aunt but have not seen them for several years. Anita, aged 13 years in particular, misses her grandmother. Shahin is 18 years of age.

13. The Tribunal accepts the review applicant’s oral evidence and submissions that the visa applicants have relatives living in Denmark, Sweden and Germany and that the visa applicant has visited them several times in the past as described earlier. The oral evidence is consistent with the review applicant’s written submissions of 4 September 2017 that the visa applicants are enjoying their lifestyle in Iran together with their extended family relations comprising of siblings, nieces and nephews and other close relatives living there.  A number of photographs were provided to the Tribunal depicting social interactions with friends and relatives celebrating a birthday party, sharing tea, and other occasions.

14. The evidence before the Tribunal is that the review applicant’s sister is a superannuant pensioner following the death of her husband a number of years ago.  She occupies her time as a physical instructor and is undertaking further studies towards a Master degree in this field.  She is presently undertaking a swimming unit course of study for which she is able to secure some time off to travel temporarily to Australia. She has two children, a son who is a successful restaurant manager and a daughter who is a specialist surgeon in emergency medicine and who is expecting her first child in April 2018. The oral evidence is that there is strong motivation for the visa applicants to return to Iran after a brief visit to Australia of up to 2 months (noting the initial application was for not more than 3 months) and then return to assist their daughter and grand-daughter immediately after the birth of her child in April 2018. The Tribunal accepts that this acts as an incentive for the visa applicants to return to Iran after their proposed temporarily visit to Australia in order to provide such assistance.

15. There is substantial evidence before the Tribunal of photographs, statements and oral evidence that review applicant’s sister is a dedicated mountaineer and accomplished physical instruction coach.  She regularly (weekly) leads groups of mountaineers to the Alborz mountains in Northern Teheran close to where she lives. Evidence of formal training in this regard was provided to the Tribunal by way of qualification documents in physical instruction and coaching.  The review applicant’s oral evidence and submission is that his mother has a very deep connection to her own home, country and relatives in Iran and that the purpose of the visit is just to come to Australia “for a short reunion” and then return home to Iran.      

16. After careful questioning by the Tribunal, the review applicant’s evidence is that there is no reason why either his mother or sister would seek a protection visa in Australia for any reasons relating to protection or complimentary [protection].  The Tribunal accepts this evidence given that discussed earlier of the review applicant’s mother and sister both having departed Iran to visit other countries and returned to Iran without hindrance following those temporary visits.  In this regard the Tribunal is persuaded that condition 8503 - not entitled to a substantive visa, other than a protection visa, while remaining in Australia - will not be breached.

17. The Tribunal has had regard to the review applicant’s financial circumstances and accepts that he has been in receipt of Centrelink Newstart allowance for a number of years other than the most recent two months where he has been undertaking paid handyperson work.  The Tribunal accepts that the review applicant’s spouse is employed full-time with Anglicare and is otherwise in receipt of family tax benefit A and B towards the family’s income. The review applicant’s son, who resides in the same household, is also able to contribute to the family income from work in a supermarket. In this regard the Tribunal accepts that the family has the means to provide the visa applicants with the pledged accommodation, food and other support for the period of the duration of their proposed stay in Australia. However, the Tribunal has also had regard to the visa applicants’ independent financial means to meet the travel fares, living expenses and other expenses to return to Iran at the end of their visit. The Tribunal accepts that there are funds in the order of US$6,561 held in a joint account (Bank Melli Iran) by the visa applicants as at 14 August 2017, and further substantial funds held by the visa applicants in other accounts (Bank Saderat Iran) all of which are available and adequate to meet the visa applicants’ expenses for travel to Australia and return home.

18. The Tribunal is satisfied from this evidence that the visa applicant has the financial means to meet the travel, accommodation and other necessary expenses for the entire period of the proposed stay with her daughter of up to 3 months in Australia (likely 2 months) and then return to Iran. The Tribunal accepts the evidence that each has their own home in Teheran and lives independently with the support of other relatives, noting in particular, that the visa applicant is visited by her daughter several times a week to check on her, but is otherwise living on her own. There is documentary evidence before the Tribunal that the review applicant’s sister owns a motor vehicle and has a driver’s licence to enable her to get about in a large city such as Teheran.

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The review applicant’s evidence, which the Tribunal accepts, is that his mother has limited language skills and many friends and relatives in Iran where she enjoys a good quality of life.  There a numerous photos of social gatherings depicting the visa applicants in social situations active with others in their community.  The review applicant considers that his mother will after a while, feel homesick and that in his sister’s case in particular, will want to return promptly to assist her daughter with the impending birth of her first child.  The evidence is that for this reason, the visa applicants’ visit is likely to be limited to 2 months but in any case, not longer than 3 months. The review applicant’s wife also explained to the Tribunal that she is scheduled for surgery to her leg in early January 2018 and will remain in a cast for up to 6 weeks following surgery so will potentially require some assistance during that short period but not thereafter.

20. The review applicant and his wife explained at the hearing that his mother and sister are keen to “build trust” by ensuring the conditions relating to their first Visitor visa are complied with in full. They explained that this had been specifically discussed with them and that they had emphasised that they would comply with all conditions on their visas so that they do not jeopardise any potential for further return visits to Australia. They do not have a need to work or study in Australia.  They  wish to have an unblemished immigration record and acknowledge that the first applications are the ‘most difficult’ but that once trust and compliance has been demonstrated this would make it simpler in the future. The Tribunal considers this factor acts as a strong incentive for the visa applicants to comply with all conditions and not overstay their visit.  The visa applicants have demonstrated frequent travel outside of Iran in the past and given their family relations in Australia, are likely to want to make return visits in the future. The Tribunal places substantial weight on this factor acting as strong incentive to comply with all immigration requirements / conditions and not overstay their visit. 

21. The Tribunal notes and gives weight also to the visa applicant’s declarations and consent in response to questions on the signed application form, including the intention to genuinely visit only and compliance with the conditions to which the visa is subject, including those material conditions relating to no work or study / training.   

22. The Tribunal accepts from the visa applicant’s age and particular circumstances of financial independence and other factors discussed, that she will have no need to work or study in Australia. The Tribunal is satisfied that the visa applicant will not engage in work in Australia, or undertake study or training here of more than 3 months, and is otherwise not entitled to a substantive visa (other than potentially, a protection visa) while remaining in Australia. Even then, the Tribunal notes there has been no hindrance in her re-entry to Iran in the past when returning from outside Iran. The Tribunal has considered the review applicant’s oral evidence and also the declaration made at the time of application, and accepts that the visa applicant will not remain in Australia after the end of the permitted stay and intends to comply with the conditions applicable to which the Subclass 600 (Visitor) visa would be subject.

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.

    Stavros Georgiadis
    Member