Moradabadi (Migration)

[2017] AATA 2309

Moradabadi (Migration) [2017] AATA 2309 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Soheila Moradabadi

VISA APPLICANT:  Miss Setareh Maradabadi

CASE NUMBER:  1705050

DIBP REFERENCE(S):  BCC2017/930923

MEMBER:Mary Urquhart

DATE:13 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 13 November 2017 at 3:16pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – No dependent family or employment ties – Not a genuine temporary entrant

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 600.211, cl 600.221, cl 600.222

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 16 March 2017 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 9 March 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. A stay of up to 3 months is sought.

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.

5. The review applicant appeared before the Tribunal on 13 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Setareh Maradabadi, the visa applicant by telephone from Iran.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister, the review applicant. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).

10. The applicant has in the past visited the UAE. However she has never travelled to Australia. Therefore cl.600.211(a) is not applicable.

11. 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.

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

13. The applicant is a 23 year old single woman who lives in Iran with her parents. She is the youngest of her two other sisters and brother. The evidence is that she has just completed her studies at Payame Noor University graduating with a Bachelor degree in Business Administration. Evidence was given that currently she is employed for 1-2 months in a training company which imports beauty therapy products from Turkey. The evidence is that she sought a letter from the company about her employment but such letter was refused as she is only part of the training programme and not an employee.

14. The applicant gave evidence at the hearing that her father would support her financially for her trip. In her application she provided her mother’s bank statement to support her funding for the trip.

15. The evidence is that she currently does not have a salary but has her work travel expenses paid.

16. The applicant gave evidence that she is intending to study a Master’s degree and is resting presently before commencing these studies. Asked what she would do regarding her Master’s degree if offered continued employment with the training company. She gave evidence that she would hope to do both.

17. The review applicant is the applicant’s sister. Her evidence is that she has twice before applied to have the applicant visit. She made an application for her parents and two sisters in 2016. Her parents succeeded in obtaining visas her sisters were refused. She gave evidence that her mother did not take up the visa as she hurt her leg; however, her father did visit and returned home within the period of his visa.

18. The review applicant gave evidence that her husband has had a visit by 6 members of his family including his mother. They all came in 2015. They all returned home in accordance with their visas.

19. The review applicant said she and her husband would ensure her sister returned home. Furthermore they are willing to pay a bond. The review applicant provided a Statutory Declaration in regard to her assurances. She said she was prepared to sign any form or give legal authority to take responsibility in order to ensure her sister would not remain if allowed to visit. She said the Tribunal could count on her word that her sister would return home.

20. The review applicant said family ties in Iran were an inducement for her sister to return home. She gave evidence that her sister has had a boyfriend for 5 years. She could not state his name. Her explanation for this was vague and somewhat implausible.

21. Asked about the applicant’s studies the review applicant said her sister had not yet graduated but would do so after her training placement.

22. Asked about the applicant’s employment the review applicant told the Tribunal her sister would be with the training company for 3-6 months. It was her evidence the applicant was “not yet sure” about studying a Master’s degree. She said in response to Tribunal questioning that her sister had not indicated to the placement training company that she was planning a holiday in Australia. This was because it is only a 2-3 week holiday. She said they did not want the company to know she had been refused a visa so did not mention it.

23. The review applicant gave evidence that the applicant earns a small amount but she was not sure what. She gave evidence that in Iran it was the culture for a single girl to be supported by her parents until she marries.

24. The applicant’s evidence differs in that she told the Tribunal she had “determined” to do a Master’s degree from the time she began her Business Administration studies. Asked if she has yet graduated she said she graduated 2 months ago at the “end of September”. The applicant confirmed she is working in a training placement. Asked if she had told this company of her plans to visit Australia she replied “yes”. She said she told them if her visa was granted she would go to Australia.

25. The inconsistencies in the evidence as between review applicant and applicant result in the Tribunal placing little weight on the applicant’s employment or studies as reasons it could be sure she would return home at the end of any visit.

26. The applicant gave evidence that her main inducement to return home is her attachments to her parents. She said she wants to spend more time with her parents.

27. The Tribunal raised with the visa applicant the review applicant’s evidence that she had a boyfriend and questioned her about this. She said “yes” she had a boyfriend. She gave his name as Hamid Ahmadi. Asked why her sister the review applicant would not know his name she explained that she and her boyfriend had a disagreement and she was not “talking to him for a while”.

28. Although the Tribunal accepts the applicant has personal ties in Iran, being her parents and two siblings, the Tribunal is not satisfied that these ties will encourage her to return after any visit. In reaching this conclusion, the Tribunal has considered that the applicant's father has previously been to Australia and has returned within the validity of his visa and that some 6 members of her brother in laws family have also travelled to Australia and returned home within the visa period. Whilst the Tribunal notes the exemplary travel of these people, the Tribunal considers that the applicant, who is young and unmarried, is not in the same position.

29. The applicant is aged 23 and single and whilst she has stated that she could not stay away from Iran because of her familial ties, in particular her parents, the Tribunal remains unsatisfied that this is sufficient to satisfy it her intentions to visit temporarily are genuine particularly where there are no dependent family or employment ties.

30. When the above factors are looked at cumulatively the Tribunal is not 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 not met.

31. For the above reasons the Tribunal is not 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 not met.

    DECISION

32. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Mary Urquhart
    Member