MOSTAFAVI (Migration)

[2019] AATA 3231

MOSTAFAVI (Migration) [2019] AATA 3231 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms MAHSA MOSTAFAVI

VISA APPLICANT:  Ms Manijeh SATTARI

CASE NUMBER:  1802480

HOME AFFAIRS REFERENCE(S):          BCC2017/4410874

MEMBER:L.Holub

DATE:8 April 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 08 April 2019 at 4:39pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuinely intends to stay temporarily – strong incentives to return to home country – compliance with previous visas conditions – cost of living expenses met by review applicant – purpose of travel – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 27 December 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 22 November 2017. 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 visa applicant genuinely intends only to stay temporarily Australia.

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

6. The review applicant was represented in relation to the review by her registered migration agent.

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

BACKGROUND

1. The review applicant was born in Iran in September 1989.  She first came to Australia on a TU-573 visa in December 2012 and in January 2014 was granted a Protection (XA-866) visa.  Evidence submitted to the Tribunal indicates that the review applicant was a dependent on her then de-facto partner’s protection application.  The visa applicant is the review applicant’s mother.  She was born in January 1956 and is widow.

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.

10) In the present case, the visa applicant seeks the visa for the purpose of visiting her daughter and her daughter’s family.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.  In August 2018, the applicant submitted that she gave birth to a baby by caesarean section and needed her mother’s support.  A letter from her GP was also provided supporting the claim that she needed post-partum recovery.

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)).  She previously travelled to Australia in 2016 on a Visitor’s visa and complied with her visa conditions.  She has also travelled to Malaysia and Turkey.

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) The review applicant’s husband works at the Commonwealth Bank of Australia.

14) Written evidence was provided of a title deed of a house held in the visa applicant’s name as was evidence from her bank stating her bank deposit.  The visa applicant receives a pension as evidenced by a copy of her pension statement provided from the Iranian Social Security Organisation.

15) The visa applicant lives in the same building as her three children and sees them on a daily basis.  Four of her siblings live in Iran close by to her and one of them lives in the USA.  One of her brothers is unwell and divorced so she assists him, takes him to medical appointments and assists his children In relation to one of her sons, he has a medical condition.

16) In a written submission the review applicant stated that she would accommodate the review applicant. 

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

Findings

18) The review applicant provided the Tribunal with a comprehensive and convincing submission.  The Tribunal accepts that the visa applicant wishes to come to Australia for six months for the purpose of visiting and supporting her daughter who gave birth in July 2018. The Tribunal accepts that the visa applicant has sufficient funds to cover the cost of her airfare and that she will stay with the review applicant who will cover the cost of her living expenses while she is in Australia.  The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia given her age and that she does not speak English.  The Tribunal accepts that the visa applicant’s home, her other children and siblings provide strong incentives for her to return to her country of residence at the end of her permitted stay in Australia.  The Tribunal put significant weight on the fact that the visa applicant has previously travelled to Australia and abided by her visa conditions.  Condition 8503 refers to entitlement and does not require compliance.  The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

19) 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

20) 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