Momeni (Migration)

[2024] AATA 705

Momeni (Migration) [2024] AATA 705 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kourosh Momeni

VISA APPLICANT:  Mrs Atousa Moemeni

CASE NUMBER:  2301282

HOME AFFAIRS REFERENCE(S):          BCC2022/4868481

MEMBER:Moira Brophy

DATE:27 March 2024

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 27 March 2024 at 3:09pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – regular compliant international travel – property ownership in home country – immediate family in Iran – father’s declining health – offer of a security bond – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 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 16 January 2023 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 16 November 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 Sponsored Family 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 applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 29 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mrs Atousa Moemeni.  The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

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

   BACKGROUND

7. The visa applicant is a 53-year-old female who was born in Iran. The visa applicant is married with one child. She has previously been to Australia in 2015. The visa applicant’s brother resides in Australia as does her father and two sisters and one brother. In her application for a Tourist visa, the visa applicant requested a visa up to 3 months for a family visit. The visa applicant is self-supported by her work as an academic, and her travel will be self-funded.

8. The review applicant, Mr Kourosh Momeni, is the brother of the visa applicant. He is an Australian citizen.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her sick father and her brother and sisters. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)).

12. At the time of hearing the visa applicant told the Tribunal that she had previously travelled to United Kingdom, Korea, Japan, China, Africa, France, Turkey, Thailand, Bulgaria, and Cambodia. She said she had always complied with her visa conditions. She had not been refused a visa to any country other than Australia. Most of her travels have been work related and she travels on a diplomatic passport. In terms of personal travels, she has travelled to Australia, Thailand, France, and the United Kingdom.

13. 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.

14. 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 her family. The review applicant said his father lives with him in Australia. He also stays at times with his two sisters. His father is 80 years old and has been diagnosed with prostate cancer. His father had not been back to Iran since he left in 2019 and his sister had last been in Australia in 2016.  She wanted to spend time with her father and other members of her family. The review applicant said he missed his sister. He thought a holiday where his sister could spend time with their father would be beneficial both to himself, his father and to the visa applicant. The Tribunal accepts it is the intention of the visa applicant to visit her brother, her sisters, and her father. 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.

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

16. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that he had not seen his sister for eight years. He wanted to spend time with her and for his father to spend time with her. His father is elderly and facing serious health challenges. The Tribunal was mindful the visa applicant had previously been granted a Tourist visa in 2015 and she had complied with the conditions of her visa.

17. The review applicant gave evidence that the visa applicant wants to come to Australia for six weeks at the most. The visa applicant told the Tribunal that she would stay for one month at the longest. She said she is not able to get more than one month leave as she has an important academic role, and she values her career. She would also be travelling without her daughter and husband and would not want to be away from them for too long. In addition, she manages the family’s properties and other assets in Iran so it is difficult to be away for a longer period.

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

19. The review applicant responded that her incentives to return are her immediate family and her work. She has her father and her extended family in Australia. The balance of her extended family is here but her closest family members are in Iran. She plays an important part in the life of her husband’s family. He has his mother and seven sisters in Iran, and he is very involved in their lives. When asked what would happen if she came here, changes her mind, and does not want to return to Iran, she responded that she loves her family and her life in Iran. She would return to her home because she has built up a well-established career with a national and international profile. Her daughter is only 20 years old and dependent on the visa applicant for her emotional and material needs.

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

21. She responded that where they are the situation is stable but Iran overall is not stable because there are many divergent views. She stated that they are in the fortunate position to not be as vulnerable as many other people in Iran.

22. The Tribunal asked the visa applicant what incentives she has to return to Iran at the end of her permitted stay in Australia. She responded that her biggest incentive to return is her family and her work. When asked what would happen if she came here and then changed her mind and decided to stay here, she responded that she has not even thought about that. She stated that she has her family and life in Iran and she has a duty to oversee and manage her family’s assets.  She stated that she wants to visit her father because he is in declining health. His health precludes him from travelling to another country to meet her. She wants to see him and see the life he has built here but she has no intention of living here.

23. The Tribunal asked the visa applicant what impact the political, economic and security situation in Iran has had on her and her family. She stated that the security, political and economic situation has had little impact on them because they are materially stable and in stable employment. They are in a privileged position.

24. The Tribunal has considered the evidence given by the review applicant. He has worked very hard to make his life in Australia and it is important to him that the visa applicant be able to visit his father and that as a family they get to spend time together. The review applicant stated that the visa applicant is law abiding and that all the members of her 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.

25. The Tribunal has considered other relevant matters. The review applicant stated that if the Department requires a security bond, he was prepared to lodge a bond of any amount requested. He stated that he is confident that his sister will return to Iran at the end of her visit.

    Findings

26. 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 her family and to her career and that this would provide a strong incentive for her to return to Iran. The Tribunal accepts that she has the financial resources to pay for her trip to Australia. The Tribunal accepts that she does not intend to work, study, or undertake any training in Australia. The Tribunal places considerable weight on the fact that she has only applied to visit in the context of her not having seen her father since 2019 and his health has declined significantly during that time.

27. 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 can visit him in Australia and that he will ensure that the visa applicant complies with the conditions of her 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 her visa.

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

29. 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

30. 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