Kiani (Migration)

[2023] AATA 2184

Kiani (Migration) [2023] AATA 2184 (20 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kiana Kiani

VISA APPLICANT:  Mr Kaykhusrow Kiani

CASE NUMBER:  2210372

HOME AFFAIRS REFERENCE(S):          BCC2021/1355700

MEMBER:K. Chapman

DATE:20 June 2023

PLACE OF DECISION:  Brisbane

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 20 June 2023 at 5:43pm 

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – past compliance with visa conditions – intention to comply with visa conditions – adequate financial position – wife remain in Iran – credible witness – decision under review remitted

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

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 3 June 2022, 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, Mr Kaykhusrow Kiani, applied for the visa on 3 July 2021. He is a national of the Islamic Republic of Iran, now aged 75 years. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this matter, 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 review, they include cl 600.211, which requires the visa applicant to satisfy the Minister that he 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 he was assessed as not genuinely intending to stay temporarily in Australia. On 18 July 2022 the review applicant, Mrs Kiana Kiani (the daughter of the visa applicant), applied to the Tribunal for review of the visa refusal decision. She provided a copy of the delegate’s decision to the Tribunal with her review application, along with financial records. The Tribunal has duly considered all submitted material.

5. The review applicant appeared by video before the Tribunal on 16 May 2023 to give evidence and present arguments. She confirmed that she was comfortable participating in the hearing by video and that she was the only person giving evidence. The Tribunal observed the review applicant to provide her evidence in a direct and comprehensive fashion. Her evidence is afforded high weight.

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 review 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 he has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by him was subject; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

   Evidence before the Tribunal

8. The evidence provided to the Tribunal, in summary, establishes the following facts. The visa applicant is 75 years of age and resides in Iran with his wife (the mother of the review applicant). The visa applicant is semi-retired, working a few days per week as an Accountant. The visa applicant’s wife works casually as a tour guide. They are both in receipt of a pension arising from past employment. The visa applicant and his wife own their home together, in addition to owning a second house. The visa applicant has several siblings residing in Iran. The review applicant has invited the visa applicant to travel to Australia to visit her, her partner and their child (the visa applicant’s grandchild).

9. The visa applicant has one adult child residing in Australia, being the review applicant. The review applicant resides with her partner and their child. The review applicant’s partner is working as a hydraulic engineer. The review applicant herself works casually in a retail position, with her main focus being the care of her child (who has learning difficulties). The review applicant seeks a visit from her father to enhance his connection with her child (the visa applicant’s grandchild). The review applicant and her partner will accommodate the visa applicant during his stay. They have sufficient funds to support him for the stay period sought of around two months.  

10. The review applicant is an Australian permanent resident. She obtained this status from the Partner visa pathway. The review applicant has resided in Australia since 2014. She previously resided in the United States, for around fifteen years, and she is a citizen of that country. The review applicant was born in Iran and has not returned to that country since her arrival in Australia.

11. The Tribunal canvassed with the review applicant the immigration history of the visa applicant and of her mother. Notably, the review applicant’s parents travelled to Australia together in around 2014 and 2017 to visit her. Additionally, the review applicant’s mother visited Australia in 2019. The review applicant’s parents returned to Iran from Australia without incident on those occasions. The review applicant contends that her father will return to Iran after a visit to Australia, as he did in 2014 and 2017. The review applicant confirmed that her father would travel alone to Australia, if he is granted the Subclass 600 visa, with her mother remaining in Iran.   

    Analysis

12. In the present matter, the visa applicant seeks the visa for the purpose of visiting his adult daughter and his grandchild in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

13. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)). The visa applicant last held Visitor visas in 2014 and 2017, complying with all applicable visa conditions. This is a matter that weighs strongly in favour of granting the Subclass 600 visa to him.

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

    ·8101 – must not work in Australia; and

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

    Discretionary visa conditions may also be imposed, however, given the delegate did not refer to these in the primary decision the Tribunal proceeds upon the basis they would not have been. Given the adequate financial position of the review applicant and her partner in Australia, the Tribunal is satisfied the visa applicant would refrain from working in this country and accordingly comply with condition 8101 if he were to be granted a Visitor visa. Further, given the stage of life of the visa applicant, in combination with his comfortable circumstances in Iran, the Tribunal is satisfied that he will not attempt to study in Australia. Accordingly, the Tribunal finds the visa applicant would comply with condition 8201 if he were to be granted a Visitor visa. These are matters that weigh in favour of granting the Subclass 600 visa to him.

15. The Tribunal has also considered all other relevant matters as required by cl 600.211(c). As outlined, it is apparent the review applicant and her partner in Australia have sufficient financial means to support a visit of the visa applicant to this country for around two months. Furthermore, it is apparent the visa applicant has a comfortable lifestyle in Iran. He has demonstrated adherence to Australian migration law during his visits to this country in around 2014 and 2017. Furthermore, the Tribunal is satisfied that the review applicant herself has also adhered to Australian migration law and that she would benefit from a visit by her father, particularly given the circumstances of her child’s learning difficulties. Notably, the visa applicant will travel to Australia by himself, having a strong incentive to return to his wife who will remain in Iran.

16. Following careful consideration, the Tribunal finds that the personal circumstances of the visa applicant suggest he will return to Iran if permitted to visit Australia to see his adult daughter and grandchild. The Tribunal makes this finding, in large part, due to its assessment that the review applicant is a credible witness. Furthermore, the visa applicant has demonstrated compliance with Australian migration law on two previous occasions. Of note, the Tribunal is satisfied the review applicant, Mrs Kiana Kiani, would be well aware that any visa non-compliance by the visa applicant, her father, would place in jeopardy future Australian visa applications made by members of her family and she would not allow this.

17. 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

18. 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.

    K. Chapman
    Member