Naghoor (Migration)

[2023] AATA 2211

Naghoor (Migration) [2023] AATA 2211 (9 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Maryam Naghoor

VISA APPLICANT:  Mrs Masoumeh Naghoor

CASE NUMBER:  2214285

HOME AFFAIRS REFERENCE(S):          BCC2022/1186502

MEMBER:Stephen Conwell

DATE:9 July 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 09 July 2023 at 6:08pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant and compliance with conditions – applicant’s immediate and extended family and full-time employment in home country – sponsor a single parent with no immediate family in Australia – previous compliant travel by other siblings – sponsor’s financial and material support – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211(a), (b)

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 30 July 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 6 April 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 his brother (the sponsor and an Australian Permanent Resident). This is a purpose for which a visa in the Tourist stream may be granted: cl 600.231.

   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 1969 and is currently 54 years of age.

13. The Tribunal has regard to the sponsor’s undated written submission and supporting documents, including but not limited to, the visa application and letters of support from the paediatrician and psychologist who treat one of the sponsor’s daughters for depression and anxiety. From this evidence, the applicant’s circumstances may be summarised thusly:

    ·The sponsor has been a single parent to her two daughters for the past eight years.  Both the sponsor’s parents are deceased; her only immediate family are her siblings. She has no immediate family in Australia;

    ·the applicant is married, with two daughters and has full-time employment in Tehran. She proposes to travel to Australia alone;

    ·the applicant is one of the sponsor’s siblings. She has not previously travelled to Australia however two other sisters have – in 2007/08 another sister travelled to Australia to assist the sponsor with the delivery of her first child. In 2013 the same sister returned to Australia to assist the sponsor with the delivery of her second child. Another sister travelled to Australia for 4 weeks in 2018-2019;

    ·the sponsor has agreed to provide all financial and material support to the applicant should the visa be granted and if the applicant requires it.

14. The Tribunal finds that the applicant has three family members in her household for whom she is responsible – her husband and her two daughters who together comprise her immediate family; this factor alone provides a strong incentive for him to return to Iran should she be permitted to visit Australia.  She also has full-time employment to which she intends to return.

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 visits as noted above. 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.

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

    Cl.600.211(b)

17. Taking the applicant’s personal circumstances and family responsibilities 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 employment and significant family ties in Iran  (being her husband, her two daughters and her extended family ) 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 gives weight to the fact that the sponsor is a single parent with no other family support in Australia. 

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