Mirmohammad Hosseini (Migration)

[2021] AATA 4770

Mirmohammad Hosseini (Migration) [2021] AATA 4770 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Seyed Ahmad Mirmohammad Hosseini

VISA APPLICANT:  Mr Vahab Mirmohammad Hosseini

CASE NUMBER:  2001069

HOME AFFAIRS REFERENCE(S):          BCC2019/6681524

MEMBER:Moira Brophy

DATE:7 December 2021

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 07 December 2021 at 3:35pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – one son and his family in Australia, all other family and business interests in home country – relatively stable circumstances – no previous travel by applicant – previous compliant travel by review applicant’s wife’s family members – consequences of non-compliance on future applications by family members – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1996 (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 12 January 2020 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 applied for the visa on 15 December 2019. 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 (Cth) (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 the visa applicant intended to stay temporarily in Australia.

5. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant, Dr Seyed Ahmad Mirmohammad Hosseini appeared before the Tribunal by way of a video link on 7 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Vahab Mirmohammad Hosseini and from his wife Mrs Shahin Arjmandi. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

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

   BACKGROUND

8. The visa applicant is a 64-year-old national of Iran. He lives with his wife, one son and one daughter. His other son is living in Australia. He has never been to Australia. In his application for a Tourist visa, he requested a visa up to 3 months for a family visit, he is retired from his work as a teacher but still works managing his real estate from which her derives an income. His travel will be supported by his retirement income and by his son.

9. The review applicant, Dr Seyed Ahmad Mirmohammad Hosseini, is the son of the visa applicant. He is an Australian citizen. He arrived in Australia on 20 July 2012 on a Student visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his son. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. At the time of hearing the visa applicant told the Tribunal that he had previously not travelled outside Iran.

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.600.612):

    ·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.

15. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit his family. The review applicant said he had been in Australia for nine years now and during this time his parents had not been to visit him. His son was now aged six. The Tribunal accepts it is the intention of the visa applicant to visit his son and his family. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

17. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that he last saw his father in 2018 when he travelled to Iran. He stated he wanted to spend time with his father, to show him where he lived and worked and for his father to spend time with his wife and son.

18. The review applicant gave evidence that the visa applicant wants to come to Australia for up to three months. The visa applicant told the Tribunal that he would stay for as long as he was allowed under the terms of the visa granted to him. He said he does not like being away from his home for long. He also has responsibilities that he cannot leave for too long. His single son and daughter are still living at home as is customary in their culture. The visa applicant said he felt a responsibility to his daughter that lives with him as she was still studying. She had finished her university studies to become a doctor but was now wishing to undertake further studies to specialise. He considered it his duty to be at home to provide her with the support she needed to continue her studies. It was not culturally acceptable that she be left alone for a prolonged period. At the hearing the visa applicant stated he intended to stay with his son for up to three months, maybe a little longer if his visa allowed but because of his obligations at home he would not be able to stay for a long period.

19. The Tribunal asked the review applicant what incentives the visa applicant has to return to Iran at the end of his permitted stay in Australia.

20. The review applicant responded that his incentives to return are his family, both immediate and extended. He was very involved in the lives of his siblings as well as those of her in-laws. He has only the review applicant in Australia. The balance of his family is in Iran. When asked what would happen if he comes here, changes his mind, and does not want to return to Iran, he responded that he loves his life in Iran.  He is not looking for change, at his time of life he appreciates what he has there. He would return to his home as he has a very comfortable life there.

21. The Tribunal asked the review applicant what impact the political, economic and security situation in Iran has had on the visa applicant.

22. He responded that while the situation was worrying where they are the situation is stable and that they are in the fortunate position to not be as vulnerable as many other people in Iran.

23. The Tribunal asked the visa applicant what incentives he has to return to Iran at the end of his permitted stay in Australia. He responded that his biggest incentive to return is his family and his business interests. He has several properties he manages and from which he derives an income. When asked what would happen if he came here and then changed his mind and decided to stay here, he responded that he has not considered that to be a possibility. He stated that his life with his business and family is in Iran. He stated that he wants to visit his son, daughter in law and grandson and see the life his son has built here but he has no intention of living here.

24. The Tribunal asked the visa applicant what impact the political, economic and security situation in Iran has had on him and his family. He stated they lived in the north of Iran, near the Caspian Sea and the security, political and economic situation has had little impact on them in recent times.

25. The Tribunal has considered the evidence given by the review applicant. He has worked very hard to make his life in Australia since he came here in 2012 and he wants to show his father the fruits of his labour. He works as a medical practitioner in pain management clinics and in general practice. He considers he has made a significant contribution to the Australian community especially during the recent period of COVID. He has a very busy schedule as does his wife who works as a general practitioner. Their schedules do not allow for them to take prolonged trips to Iran. The review applicant was very conscious of the time his son was missing with his grandparents. He told the Tribunal he had hoped that his son would have been able to get to know his grandparents and for them to be able to teach him the Farsi language. He said as time went on that would be harder both for his son and for his parents. His wife’s parents have visited from Iran on four occasions. They have always complied with their visa conditions. Her two brothers had also visited and complied with their visa conditions.

26. The review applicant stated that the visa applicant is law abiding and that all the members of his family are also law abiding. They were very aware that a failure to abide by any visa conditions imposed would have ramifications for any future visa applications they may make.

    Findings

27. Having considered all the evidence, the Tribunal is of the view that the visa applicant and the review applicant are credible witnesses. The Tribunal accepts that the visa applicant has a deep commitment to his family and business interests and that this would provide a strong incentive for him to return to Iran. The Tribunal accepts that he has the financial resources to pay for his trip to Australia. The Tribunal accepts that he does not intend to work, study, or undertake any training in Australia.

28. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that his family members are able to visit him in Australia and that he will ensure that the visa applicant complies with the conditions of his visa so as not to jeopardize other family members' prospects of obtaining visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of his visa.

29. The Tribunal accepts that the visa applicant's incentives to return to Iran outweigh his incentives to remain in Australia after the end of his permitted stay. The Tribunal accepts that he intends complying with the conditions of his visa.

30. 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

31. 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.

    Moira Brophy
    Member