Mohsenpour (Migration)

[2023] AATA 3558

Mohsenpour (Migration) [2023] AATA 3558 (3 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Pargolsadat Mohsenpour

VISA APPLICANT:  Miss Gelareh Rahimy

CASE NUMBER:  2216976

HOME AFFAIRS REFERENCE(S):          BCC2022/3690432

MEMBER:Stephen Conwell

DATE:3 October 2023

PLACE OF DECISION:  Melbourne

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 03 October 2023 at 9:58am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant family visits – business and family ties in Turkey – financial resources – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.612

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 November 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 applied for the visa on 8 September 2022. 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 (the applicant) did not meet cl.600.211 because the delegate was not satisfied he genuinely intends to stay temporarily in Australia. 

5. The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the applicant seeks the visa for the purposes of visiting her two sisters and their families (one of whom is the sponsor and an Australian citizen). This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

   Cl.600.211(a)

10. In considering whether an 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)), however because the applicant has not previously travelled to Australia, this is not relevant.

11. The Tribunal must also consider whether the 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.

12. The Tribunal has considered the personal circumstances of the applicant who was born in 1979 and is currently 43 years of age.

13. The Tribunal has regard to the written submission dated 20 November 2022 from the applicant’s brother-in-law and other  supporting documents, including but not limited to, the visa application and decision record, property title deeds and bank account statements. From this evidence, the applicant’s circumstances may be summarised thusly:

    ·the applicant is a citizen of both Iran and Turkey. She and her husband reside in Turkey where her husband owns and operates a successful company in the hospitality sector;

    ·the applicant is a housewife residing in Turkey with her husband of over 20 years who will be supporting the costs of her travel. She proposes to travel to Australia alone to visit her two sisters and to celebrate the birth of her first nephew;

    ·she has not previously travelled to Australia however she and her husband  have travelled to Netherlands, the Czech Republic and Austria after which they both returned to their home in Turkey. There is no evidence of the applicant and her husband breaching their visa conditions during their travels;

    ·the applicant’s husband has ample financial resources to provide all financial and material support to the applicant should the visa be granted. The applicant’s sisters will provide accommodation to her for the duration of her visit.

14. The Tribunal finds that the applicant and her husband have a comfortable and established life in Turkey; her parents also live in Turkey, not  far from her. The Tribunal finds this factor alone provides a strong incentive for her to return to Turkey should she be permitted to visit Australia.  

15. Although the applicant has not previously to travelled to Australia, the Tribunal gives positive weight to the sponsor having successfully sponsored other family members on previous – the parties’ parents were recently in Australia on longer stay visas. There is no evidence of these previous visitors breaching their visa conditions during their stay. The Tribunal gives positive weight to the fact that the previously sponsored visitors  appear to have substantially complied with their visa conditions during these visits to Australia and that they departed the country within the terms of such conditions.  The Tribunal also gives positive weight to the applicant’s previous travels around Europe with her husband.

16. The Tribunal is satisfied on the basis of the evidence that the sponsor and the other sister will provide accommodation for the applicant during the proposed visit.

    Cl.600.211(b)

17. Taking the applicant’s personal circumstances into account, the Tribunal is satisfied that the applicant intends to comply with all visa conditions that would accompany the visa. The Tribunal is also satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

18. The Tribunal is satisfied that the applicant does not intend to work, study or train while in Australia.

19. The Tribunal is satisfied the applicant has family ties in Turkey  (being her husband and her parents ) which act as incentive for her to return before the expiration of the visa, should it be granted.

    Cl.600.211(c)

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)) and finds there is no evidence of other relevant issues in the case. 

21. For the above reasons the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa may be 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.

    Stephen Conwell
    Member