Nabizadeh (Migration)

[2021] AATA 820

Nabizadeh (Migration) [2021] AATA 820 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sahar Nabizadeh

VISA APPLICANT:  Mr Mohammadhossein Nabizadeh Shanjani

CASE NUMBER:  1836813

HOME AFFAIRS REFERENCE(S):     BCC2018/4359766

MEMBER:Carmel Morfuni

DATE:17 March 2021

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.

C. Morfuni

Member

Statement made 17 March 2021 at 3.00pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – real estate, business, savings, family and girlfriend in home country – compliant travel to other countries by applicant and to Australia by other family members – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 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 9 November 2018 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 7 October 2018. 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 review applicant provided a copy of the Delegate’s decision to the Tribunal at the time of lodging the application for review.

4. The Tribunal had before it the Tribunal and Department files, any information provided by or on behalf of the visa applicant and the review applicant. the relevant legislation being the Migration Act 1958 (the Act), the Migration Regulations (the Regulations) and policy documents including the migration Procedures Advice Manual 3 (PAM3) and oral evidence provided at the hearing.

5. 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.

6. 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 on the evidence and information before the delegate that the visa applicant genuinely intended to stay temporarily in Australia.

7. This Tribunal decision is made in accordance with the President’s Direction Conducting Migration and Refugee Reviews’ made on 1 August 2018. Paragraph 8.2 of that President’s Direction states:

   As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.

8. The review applicant appeared before the Tribunal on 4 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s husband.

9. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

10. The Review Applicant was not represented.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal had before it the Department and Tribunal Files, the relevant legislation being the Migration Act 1958 (the Act), the Migration Regulations 1994 (the Regulations), the migration Procedures Advice Manual 3 (PAM 3), submitted documentation including the most recent response to hearing together with all attachments, information and submissions provided by or on behalf of the review and visa applicants and any oral or written evidence presented at the hearing.

13. 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.

14. Clauses 600.211 and 600.612 of Schedule 2 to the Regulations are attached to this decision.

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

16. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). The evidence and Department records indicate that he has not travelled to Australia previously.

17. 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.

18. The Tribunal referred the visa applicant to the consequences of him providing incorrect or misleading information to the Department as set out in his response document which contained that information. He indicated that he understood the document and those consequences including possible refusal or cancellation of visas. In response to a question from the Tribunal at the hearing as to whether or not he intended to comply with the conditions in paragraph 17 above, the visa applicant stated that he intended to do so.

19. The Tribunal has also considered any other relevant matter (cl.600.211(c)) in order to determine whether the visa applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted as set out below in this paragraph. This is based on evidence and documents provided to the Tribunal by the visa applicant or review applicant:

    ·identity documents submitted

    oincluding but not limited to the visa applicant’s birth certificate, passport of him and the review applicant and identity cards,

    ·evidence of previous travel

    including pre-application travel: stamped pages of the visa applicant’s expired Iranian passport (2018), current passport, visas to UAE 22 (September 2018), Istanbul (3 June 2017), Chinese visa 15933795 (16 March 2016 to16 May 2016), Thailand Visa (17 to 21 March 2015).

    The Tribunal notes that the documentary evidence previously provided by both the visa applicant and review applicant (in their respective visa and sponsorship applications) is that the visa applicant had not previously travelled overseas. The Tribunal has not relied on this evidence as having probative value in the light of subsequent submission of documented visas  relating to overseas travel by him between 1915-1918.

    evidence of ability to financially support himself including his travel to and from and in Australia;

    oThe visa applicant states that he will be self-funded planning to have a minimum $5000 ( approximately 161,000,000 Iran Rial) during his stay and will be supported by his sister and brother-in-law including accommodation travel etc. They confirmed this in their invitation dated 6 October 2018 to the visa applicant to come to Australia.

    • evidence of assets

    oThe visa applicant submitted a bank statement from Bank Saderat Iran in his name dated 3.10.2018 (opened in 21.6.2016). When asked about his current savings, he obfuscated and settled on the figure of approximately AUD$25K.

    oIn answer to the Tribunal about his assets the visa applicant

    ·provided bank statements from the Bank Sadarait of Iran in relation to company accounts for Tejeh San Trading Company (the Company) for which he works

    ·stated that he is a director of the company and that he holds a one third interest in it. Other documentation submitted indicates his directorship which the Tribunal accepts and that he receives a salary as an employee (see paragraph below under Work) however there is no documentation indicating the extent of his financial interest in the company nor a professional monetary valuation of it.;

    ·stated that he owns 2 apartments in Iran (the title deed dated 30.9.2014). He stated in oral evidence that each is worth approximately AUD$50K and that one of them is subject to an AUD$70K mortgage. On the Title search the visa applicant is shown as the son of ALIREZA (his father) and that the previous title deed was cancelled due to changing in ownership and replaced by the current deed. Given that his father is still alive, the Tribunal does not find this evidence persuasive as assets are able to be transferred between persons. He owns a further apartment, the title deed search making no reference to anyone else as indicated above.

    ·evidence as to work/employment

    oIn answer to a question from the Tribunal the visa applicant estimates that the Company is currently worth between half and one million Australian dollars. In the absence of any documentary support, the Tribunal attaches minimal weight on the estimate.

    oThe visa applicant stated that his salary fluctuates between AUD$50K – 100K and last year it was about AUD $80-$100K. He stated that his income has since dropped by around 20%. The oral evidence indicates that he has worked for the Company for about 10 years There was no documentary evidence provided as to how long he has worked for the Company.

    oThe visa applicant produced some Company accounts however the Tribunal did not find them persuasive as he is not the only person with a financial interest and there was no recent documentary evidence indicating other persons’ interests. There was otherwise no further documented current work information submitted.

    ·evidence of family or other ties to Iran

    oThe evidence of the visa applicant and review applicant indicates that they have parents and a sister in Iran.

    oIn oral evidence at the hearing the review applicant indicated that the visa applicant has a girlfriend and that two of the undated photographs submitted were of him and his girlfriend and the other, of them both with his sister in Iran and her husband. She further stated that the girlfriend provides a further incentive for the visa applicant to return to Iran and that she intends to apply for a visa to Australia (type of visa and timeframe not mentioned). The review applicant had not mentioned her previously in documentation.

    The visa applicant stated in oral evidence that he has a girlfriend of 4 years standing with whom he does not reside and confirmed the photographs submitted. In response to a question from the Tribunal as to why he is making reference to her for the first time at the hearing having not mentioned her at all previously in documentation, he stated that it indicates a further strong tie for him as an incentive to return to Iran.

    The Tribunal has given the issue of the girlfriend little weight and gives greater weight to the visa applicant’s family member ties with Iran as an incentive to return.

    ·purpose of the visa applicant’s visit to Australia

    oThe oral evidence at the hearing indicates that the review applicant has a 7 year old daughter. Further evidence from all three witnesses at the hearing indicated that the review applicant and her husband suffered a recent tragic loss in 2021 which they described, resulting in grief and distress. The visa applicant indicated that he also currently wishes to support his sister and brother-in-law as it is a difficult time for them. This evidence is accepted and given some weight by the Tribunal. It is also consistent with the visa applicant’s original purpose, to visit family.

    ·Other

    ·The oral evidence and movement records indicate that all other members of the review applicant’s family have visited Australia several times except for the visa applicant and have always abided by conditions and returned to Iran indicating that the family has a history of compliance and respect in relation to visiting Australia. The visa applicant stated that he intends to follow what his family has done in the past.

    oBased on the whole of the evidence and information before it, the Tribunal it has no reason to believe that the visa applicant does not have a genuine intention to remain in Australia temporarily and to return to Iran.

20. Conclusions

    ·the visa applicant has some current savings

    ·some of the evidence from the visa applicant appears to be contradictory specifically in relation to previous travel, the visa applicant and review applicant having stated in their initial visa application and sponsorship application respectively (which postdate much of the travel according to the documentary evidence submitted to the Tribunal), that the visa applicant had never travelled overseas and the current submission of documentary proof of his overseas travel between 2015-2018 which predates the applications. There is however, no oral or documentary evidence before the Tribunal that the visa applicant did not comply with visa conditions in his previous travel.

    ·evidence relating to the visa applicant’s girlfriend was not sufficiently persuasive to establish to the Tribunal’s satisfaction an incentive for the visa applicant to return to Iran and to temporarily remain in Australia

    ·members of the visa applicant’s family history of travel from Iran to Australia provides a history and pattern of behaviour which indicates that they abided by conditions and returned to Iran. The Tribunal concludes that this reflects the family values and accepts that the visa applicant will do so.

    ·assets of the applicant have been considered and given some weight but are not determinative as they may be transferred to a third person or disposed of by the visa applicant or his agents.

    ·the Tribunal found some of the evidence not persuasive. In particular, that relating to the visa applicant’s girlfriend and some relating to the real estate and financial matters due to the paucity of current documentary evidence much of which has not been updated since 2018. On balance however, the Tribunal accepts much of the other evidence and information provided.

21. Findings

    The Tribunal’s findings are based on the whole of the evidence and information before it

    ·The Tribunal is satisfied and finds that the visa applicant intends to comply with all visa conditions in cl 600.612 of Schedule 2 of the Regulations

    ·The Tribunal finds that the visa applicant has sufficient incentive to return to Iran and has a genuine intention to remain temporarily in Australia in accordance with cl. 600.211 of Schedule 2 of the Regulations.

22. For the above reasons the Tribunal is satisfied on balance, 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

23. 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.

    C. Morfuni
    Member
    Attachment

    Migration Regulations 1994

    600.21 -- Common criteria

    Note: These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 600 visa.

    600.211  

    The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a)  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; and

    (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

    (c)  any other relevant matter.

    600.612

    If the visa is a Subclass 600 visa in the Sponsored Family stream, conditions 8101, 8201, 8503, and 8531 must be imposed.