Maleki (Migration)

[2019] AATA 2612

Maleki (Migration) [2019] AATA 2612 (24 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Homan Maleki

VISA APPLICANT:  Mrs Yasaman Maleki

CASE NUMBER:  1807025
DIBP REFERENCE(S):

MEMBER:  Ian Garnham

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 April 2019 at 10:50 am (VIC time)

DATE OF WRITTEN RECORD:                16 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the 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 16 May 2019 at 1:16pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visit brother and tourist activities – extensive overseas travel to different countries – intention to comply with visa conditions – currently employed in Tehran – significant ties to home country – decision under review remitted

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS
   ORAL DECISION OF MEMBER GARNHAM

3. MEMBER: This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2018. The decision was to refuse to grant the visa applicant a Visitor (Class FA) visa under section 65 of the Migration Act.

4. The visa applicant, Ms Yasaman Maleki, applied for the visa on 20 February 2018. At the time the visa application was lodged, Class FA contained one subclass, subclass 600 visitor visa, with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the sponsored family stream.

5. The criteria for a subclass 600 is set out in part 600 of Schedule 2 to the Migration Regulations, relevantly to this case they include [clause] 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.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 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. The review applicant appeared before the tribunal on 24 April 2019 to give evidence and present arguments. The review applicant in this case is the brother of the visa applicant, Mr Homan Maleki. The visa applicant also provided evidence to the tribunal by conference telephone. The review applicant was not represented in relation to the review.

   Claims and Evidence

8. Moving on to the consideration of claims and evidence in this case. The tribunal first considers - well, the sole issue in this case is whether clause 600.211 is met. This requires the tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa will be 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 contends to comply with the conditions to which the subclass 600 visa would be subject, and finally, any other relevant matter.

9. In the present case the visa applicant claims to seek the visa for the purpose of visiting her brother and also for conducting tourist activities within Australia. The tribunal is satisfied that these are purposes for which a visa in the sponsored family stream may be granted.

   cl.600.211(a):

   Case Number 1807025  Page 2 of 5

1. So firstly to consider [clause] 600.211(a), the tribunal must consider whether the visa applicant has complied substantially with the conditions to which the previous visas held by or subsequent bridging visas held by the visa applicant have been subject. In this case the visa applicant has never previously travelled to Australia. Therefore the tribunal finds there is no evidence for substantial compliance or non-compliance with the conditions of any previous substantive or subsequent bridging visa held by the applicant.

2. However, the applicant has done extensive overseas travel to different countries, and the tribunal notes that in the departmental file, at folios 19 to 27, copies of the visa applicant’s - pages of her passport confirm that extensive travel, and to a variety of countries. At today’s hearing the review applicant and indeed the visa applicant indicated that she has previously travelled, and sometimes on more than one occasion, to 19 countries. Indeed, part of her reason for wishing to come to Australia is a list that the visa applicant expressed to see the whole of the world and travel to all countries throughout the world.

3. The tribunal must also consider the review applicant’s background in connection with his family. And I point out the review applicant and the visa applicant are two children of a two-children family, and that the visa applicant currently resides with her parents in Iran.

4. The review applicant first came to Australia in April 2009 on a subclass 573 Higher Education Sector visa. He studied construction management and civil engineering at Swinburne University in Melbourne, and received a [further] subclass 573 visas, a second subclass 573 visa in January 2011.

5. In 2012 he went on and was granted a temporary graduate visa, a subclass 485 Temporary Graduate visa, and from that he was granted a [subclass 189] Permanent Skilled Independent visa in January 2015. In July 2016 he went on and became an Australian citizen. Though I note in that period since his first arrival in 2009 he has travelled overseas [on 7 occasions for varying amounts of time, and for one extensive period, and he has at least returned for a significant period in all those trips to his home country in Iran and visiting his family, including his sister, the visa applicant.

6. During his time in Australia his parents have visited on a number of occasions, and the tribunal notes from their movement details that his mother and father travelled together to Australia and stayed for approximately one month in March 2015, and in addition his mother recently travelled, and it was intended to travel with his sister, the visa applicant, who was refused a visa on that occasion, but the mother decided to travel alone and stay with the review applicant in April 2018. Once again, she stayed for approximately one month and left well before her six month visa ceased to have effect.

7. So whilst there is no direct travel by the visa applicant to Australia, I note that all of the travel that I have indicated, including the visa applicant’s extensive overseas travel [to numerous countries], the review applicant’s travel, and visa migration history within Australia, and his parent’s travel, all indicate - and that there is no evidence before me that any of his travel has been non-compliant, and I acknowledged significant complying travel to Australia and other places of the world, by the visa applicant and her family.

   cl.600.211(b):

8. Moving on next to consider subclause 600.211(b), which are the conditions which would be applied to the visa applicant’s visa. These are condition 8101, that she must not work whilst in Australia, condition 8201, that she must not engage in study or training in Australia for more than three months, condition 8503 that she is not entitled to a substantive visa, other than a protection visa, whilst remaining in Australia, and finally condition 8531 that she must not remain in Australia at the end of her permitted stay.

Case Number 1807025  Page 3 of 5

1. Firstly, considering condition 8101 that the visa applicant must not work. I note that the visa applicant, at the time that the delegate considered her visa application, was unemployed. I understand and I accept, due to credibility of the evidence provided by the visa applicant and the review applicant, that she is a trained civil engineer, that she works in Tehran, and whilst she was unemployed at the time the original application was reviewed, at folio 67 the visa applicant has provided a statement from her current employer where she has been employed since April 21, 2018.

2. Based on her current employment and her statement before the tribunal today that this would be one of the prime motivators for her to return to Iran, and indeed while she could only leave Iran for approximately one month, the tribunal acknowledges this employment and considers it is unlikely that the visa applicant will seek to work in Australia.

3. For these same reasons and because of the graduate training of the visa applicant, the tribunal also considers it highly unlikely that she would seek to engage in study or training in Australia for more than three months.

4. With the two conditions, condition 8503 and 8531 relate to the visa applicant returning to Iran within the limit of the visa period or in contrast choosing to not do so and to seek an alternative type of visa in Australia. Whilst the tribunal acknowledges that the visa applicant is unpartnered, the tribunal considers that these two conditions are best considered along with all other relevant matters in this case, which basically turn on the visa applicant’s incentives to return to Iran, versus her disincentives and incentives to remain in Australia. We will consider them accordingly.

   cl.600.211(c):

5. The tribunal notes that the visa applicant’s only family in Australia is her brother, and the tribunal is satisfied, based on the responses provided to the tribunal today, that they maintain a very close contact, being the only siblings in this family. Indeed, they indicated to the tribunal that they talk very regularly, a number of times per week, whilst in different countries. So whilst the tribunal recognises this is a tight connection and would provide some incentive for the visa applicant to remain in Australia, the tribunal also acknowledges that it also provides an incentive for her to come to Australia as a tourist to see where her brother lives, along with her desire to travel the world and to experience tourist activities within Australia.

6. With respect to incentives to return home, the visa applicant stressed that her job was a major incentive to do so, and I note she has been employed there now for over one year. I also note that the tribunal has been provided with superannuation and social security entitlements accumulating to the visa applicant in Iran, where; {provided at folios], 41 to 43 of the tribunal file. She also is the holder of significant real estate, including apartments, acknowledged at folios 47 to 51 of the tribunal file, and the tribunal is also presented with a third more recent apartment purchase provided at the hearing of the tribunal. And because of the overwhelming evidence of the real estate interests of the visa applicant in Iran, the tribunal did not see it necessary - to accept the submission that ackowledges the visa applicant has extensive real estate interests in Iran, as do her parents, which have also been provided to the tribunal.

7. With respect to finances, the tribunal notes at folio 53 of the tribunal’s file a submission or a document has been provided that indicates the visa applicant has the equivalent - or had the equivalent, in April 2018, of $90,000 Australian Dollars, which the tribunal acknowledges that is a significantly larger proportion [of savings] within the economy of Iran. The tribunal also acknowledges; with respect to finances, the review applicant has provided a copy of his

Case Number 1807025  Page 4 of 5

bank balance, which is approximately $170,000, and the date of his statement - bank statement is 4 April 2019.

1. The tribunal also acknowledges with respect to his finances that the review applicant quite candidly advised the tribunal that the large part of these funds were a gift from his parents for him to purchase real estate within Australia. And the tribunal acknowledges the nature of his evidence to communicate that he has in fact been gifted this money, but acknowledges his ability to provide for his sister whilst in Australia if he needed to do so.

2. In addition, the visa applicant told the tribunal that her father is now 70 years old and her parents are retired and they need emotional and physical help. The tribunal accepts that she resides with them and provides this for them and that provides further incentive for her to return to Iran. She stressed that she comes from a strong family background and a very wealthy family by Iranian standards, and in addition she made reference to her numerous close friends.

3. She provided consistent evidence with the review applicant about the possible length of her stay, but that it was only possible for her to stay for approximately one month. And all of the evidence that both applicants have provided to the tribunal has been consistent, and the tribunal accepts that it be frank and [consistent] nature of the evidence before it today. And based on the provision of this evidence, as well as the documentary evidence, the tribunal is - on balance is satisfied that the visa applicant will comply with conditions if the visa is granted, and will stay temporarily in Australia for the purpose on which the visa is to be granted.

4. Therefore, for these reasons, the tribunal is satisfied that the visa applicant genuinely

   intends to stay temporarily in Australia for the purpose for which the visa will be granted, and finds that the requirements of clause 600.211 are met.

5. Therefore, the formal decision of the tribunal is as follows: 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. That is clause 600.211 of Schedule 2 to the Regulations.

6. And that concludes my reasons for the decision in this matter.
   DECISION

   The Tribunal remits the decision under review with the direction that the applicant meets the following criteria for a subclass 600 (Visitor) (Class FA) visa:

   •cl.600.211 of Schedule 2 to the Regulations

   Ian Garnham
   Member

   Case Number 1807025  Page 5 of 5