Miraghazadeh (Migration)

[2019] AATA 479

Miraghazadeh (Migration) [2019] AATA 479 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Bahar Miraghazadeh

VISA APPLICANT:  Mr Seyed Javad Miraghazadeh

CASE NUMBER:  1901813

HOME AFFAIRS REFERENCE(S):           BCC2018/5153439

MEMBER:Linda Holub

DATE:6 March 2019

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 06 March 2019 at 5:04pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Tourist stream – genuine temporary entrant – decision made on papers – family’s positive migration history – professional and personal ties to Iran – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, 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 Immigration on 25 November 2018 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 19 November 2018. 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.

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 because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia

5. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

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

BACKGROUND

1. The review applicant first came to Australia in March 2010 on a Tourist (TR-676) visa and in October 2010 she was granted a Higher Education (TU-574) visa.  In 2015 she was granted a Skilled – Nominated (SN-190) and has been an Australian citizen since 1 September 2016.  The visa applicant is the review applicant’s brother.  He is a 40 year old Iranian male.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister to attend her wedding and to give her away at her wedding.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10) 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)).  The visa applicant has not previously travelled to Australia.  Written evidence was provided that he has previously travelled to Malaysia, Turkey, India and Singapore.

11) The review applicant’s mother has come to Australia on three occasions on either Tourist (TR-676) or Visitor (FA-600) visas including at the end of 2011, 2014 and December 2016.  She has complied with her visa conditions on each occasion.

12) 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(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.

13) In a letter to the Tribunal the review applicant states that she has been a scientist at the Australian National University since 2014 and a senior scientist at the Canberra Hospital.  Although she did not provide evidence of her employment, Google searches confirm her claims. 

14) The visa applicant is a full-time film producer, videographer and movie director.  According to the review applicant’s submission to the Tribunal, he is the founder of a film production company and has produced many short movies, educational movies and documentaries for government and private clients.  Translated documents were provided substantiating this and other documents, such as from the Iranian Ministry of Culture was provided to the Tribunal show that his educational movies have been authorised for use in cultural centres.  Other documents were also provided regarding the visa applicant’s business and production of videos.

15) Evidence was submitted in regards to the visa applicant’s bank account indicating his account was opened in 2008 and in July 2018 had a balance of approximately $US17,000.

16) In written submissions, including a Statutory Declaration, the review applicant has referred to the visa applicant having a partner.  She has also referred to the visa applicant’s professional standing and investment in his own company and equipment as reasons for him to return to Iran after his visit. 

17) The review applicant has submitted that her brother will be standing in for her deceased father at her upcoming wedding and that she has no relatives in Australia that could do this and only one uncle in Iran who is unable to travel. 

Findings

18) The Tribunal accepts that the review applicant wishes to have her brother attend her wedding.  The Tribunal is satisfied that the visa applicant will not seek to work, engage in study or training in Australia.  The Tribunal has had regard to the funds that he has available and that the review applicant has undertaken to support his visit including his business and partner.  The Tribunal accepts that the visa applicant has reasons to return to Iran after the duration of his visit.  The Tribunal has had regard to the family’s positive migration history and has given it significant positive weight.  The Tribunal is satisfied that he will not seek to change his migration status while onshore.

19) Condition 8503 refers to entitlement and does not require compliance.

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

21) 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

22) 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.

Linda Holub
Member