Javidi Gholipour Mashhad (Migration)

[2023] AATA 4015

Javidi Gholipour Mashhad (Migration) [2023] AATA 4015 (21 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Tamara Javidi Gholipour Mashhad

VISA APPLICANT:  Mr Kasra Javidi Gholipour Mashhad

REPRESENTATIVE:  Mr Shahen Davityan

CASE NUMBER:  2217027

HOME AFFAIRS REFERENCE(S):          BCC2022/2379679

MEMBER:Jane Marquard

DATE:21 November 2023

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 21 November 2023 at 9:27am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – multiple previous compliant visits – impact of the COVID-19 lockdown – family commitments in home country – property ownership and employment in home country – decision under review remitted   

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

BACKGROUND TO THE REVIEW

1. The visa applicant is a 39-year-old man from Iran.

2. He applied for a Visitor (Class FA) (Subclass 600) visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 26 June 2022. In his application he stated that the purpose of his visit was to visit family in Australia over the Christmas/New Year period and for his sister’s birthday.

3. A delegate of the Department of Home Affairs (the Department) refused to grant the visa on 22 September 2022. The delegate refused the application on the basis that the visa applicant did not meet cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Specifically, the delegate was not satisfied that the evidence established that the applicant genuinely intended to stay temporarily for the purpose for which the visa is granted.

4. This is a review of that decision by the Administrative Appeals Tribunal.

   RELEVANT LAW

5. 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.

6. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to 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.

   EVIDENCE

7. The Tribunal has considered evidence provided to the Department as set out in Attachment A. The evidence is referred to where relevant in the findings.

8. No hearing was necessary in this matter as the Tribunal was able to determine the matter on the papers pursuant to s 360(2)(a) of the Act.

   FINDINGS

9. The issue in this case is whether cl 600.211 of Schedule 2 to the Regulations 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. The Tribunal must have 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Purpose

11. 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 of Schedule 2 to the Regulations.

    Substantial compliance with conditions of last visa

12. 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)).

13. The last substantive visa held was a FA 600 (Tourist) visa granted on 11 May 2019. A check of Departmental records indicates that he complied with the conditions of the visa held. This is taken into account favourably in a consideration of whether he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    Intention to comply with conditions of the visa

14. 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) of Schedule 2 to the Regulations). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.611(2)):

    ·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.

15. The Tribunal notes that the visa applicant has only requested a three month stay which does not accord with an intention to work or study. Importantly, the visa applicant has complied with visa conditions on eleven prior visits including not remaining in Australia after the end of permitted stay. This compliance has been given significant weight. For these reasons the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the visa would be subject. This is taken into account favourably in a consideration of whether he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    Other relevant matters

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

17. Firstly, the Tribunal has given significant weight to the fact that the applicant has travelled to Australia 11 times between March 2011 and November 2019. Since 2014 on each occasion, he has visited on a Tourist (Subclass 600) visa, the same visa for which he is currently applying.  While the delegate had concerns that his frequent travel raised concerns about his intentions to stay temporarily, the Tribunal notes that there is no suggestion that he has overstayed his visas and he has always stayed temporarily. There is in fact no evidence in Departmental records of non-compliance with visa conditions and on each occasion the visa applicant has returned to Iran before the expiry of the visa. The Tribunal has given this significant weight in finding that the applicant has a genuine intention to stay temporarily in Australia for the purpose of visiting family. The Tribunal is of the view that if an applicant has complied with visa conditions on 11 occasions, he should be given the benefit of the doubt about complying with conditions of a further visa.

18. Secondly, the Tribunal has taken into consideration the fact that the visa applicant applied for a three-month visa which suggests that he only intends a temporary stay. He also provided valid reasons for his visit, visiting family over Christmas and for birthdays. His sister, in an invitation letter in June 2022, mentioned that she had not seen him during the COVID-19 lockdown and found it very difficult as they are very close and she wanted his emotional support. This appears to be a reasonable reason for a temporary visit.

19. Thirdly, the Tribunal has taken into consideration the fact that the applicant’s father remains behind in his home country, which comprises an incentive to return, as he has done in the past.

20. Fourthly the visa applicant has a job in Iran with Farish Company, which he has held since September 2017, providing further incentive to return. He also has assets amounting to the equivalent of $9594.95 AUD and evidence was provided of property ownership. A letter dated December 2022 from the CEO of Farish stated that the visa applicant was a digital technology and marketing consultant at the company.

21. Finally, and importantly, the review applicant has been an Australian citizen since 2012. She has sponsored her brother on numerous occasions as discussed above, and Departmental records indicate that on 18 June 2021 she was listed as a sponsor on her father’s Aged Parent (Residence) (BO 804) visa application which is still pending. The review applicant would be aware that should her brother not comply with his visa conditions, this would impact on her ability to sponsor other relatives. She said that her brother had provided assurances he would return at the end of the visit. There is no reason to doubt these assurances given his prior record and the interest she has in ensuring that he comply with visa conditions. There is no evidence that she or her husband are not of good character and evidence of sufficient funds to support him in Australia have been provided.

    Summary of findings

22. For the above reasons considered cumulatively 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 of Schedule 2 to the Regulations are met.

    DECISION

23. 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.

    Jane Marquard
    Member

    
    

    Attachment A

    List of documents provided to the Department

    • Payslip issued to Tamara Javidi Gholipour Mashhad for the pay date of 28 April 2022
    showing a net income of $3762.77 AUD.
    • Payslip issued to Tamara Javidi Gholipour Mashhad for the pay date of 12 May 2022 showing
    a net income of $3762.77 AUD.
    • Payslip issued to Tamara Javidi Gholipour Mashhad for the pay date of 26 May 2022 showing
    a net income of $3762.77 AUD.
    • Payslip issued to Tamara Javidi Gholipour Mashhad for the pay date of 9 June 2022 showing
    a net income of $3762.77 AUD.
    • Kasra Javidi Gholipour Mashhad – Iranian Birth Certificate.
    • Kasra Javidi Gholipour Mashhad – Islamic Republic of Iran Passport issued on 31 August 2006,
    expiring on 31 August 2011.
    • Kasra Javidi Gholipour Mashhad – Islamic Republic of Iran Passport issued on 12 August 2011,
    expiring on 11 August 2016.
    • Kasra Javidi Gholipour Mashhad – Islamic Republic of Iran Passport issued on 2 February
    2016, expiring on 1 February 2021.
    • Kasra Javidi Gholipour Mashhad – Islamic Republic of Iran Passport issued on 4 November
    2020, expiring on 4 November 2025.
    • Two scanned copies of Iranian identity cards.
    • An invitation letter dated 8 June 2022, written by Tamara Javidi Gholipour Mashhad.
    • Certified translation of Law Enforcement Force of the Islamic Republic of Iran – Military
    Service Exemption Card issued to Kasra Javidi Gholipour Mashhad on 7 August 2012.
    • A copy of the Visitor (Subclass 600) visa grant notice issued by the Department of Home
    Affairs to the PVA on 11 May 2019.
    • A copy of the Visitor (Subclass 600) visa grant notice issued by the Department of Home
    Affairs to the PVA on 6 February 2019.
    • A copy of the Visitor (Subclass 600) visa grant notice issued by the Department of Home
    Affairs to the PVA on 7 February 2018.
    • A copy of the Visitor (Subclass 600) visa grant notice issued by the Department of Home
    Affairs to the PVA on 11 February 2017.
    • A copy of the Visitor (Subclass 600) visa grant notice issued by the Department of Home
    Affairs to the PVA on 11 January 2017.
    • Bank Pasargad Account Balance Certificate in the name of Kasra Javidi Gholipour Mashhad
    issued on 13 June 2022, showing a total available balance of 1,811,077,729 IRR
    (Approximately $9,594.96 AUD).
    • Bank Pasargad Bank Statement in the name of Kasra Javidi Gholipour Mashhad issued on 13
    June 2022 showing a closing amount of 1,811,077,729 IRR (approximately $9,594.96 AUD).
    • Confirmation of employment letter by Farish CEO dated 25 June 2022.
    • A scanned copy of Tamara Javidi Gholipour Mashhad Australian Passport.
    • Certified translation of the Real Estate Registration Organization of Iran transferral of Title Deeds to the review applicant and visa applicant.