Nosrati (Migration)

[2021] AATA 1075

Nosrati (Migration) [2021] AATA 1075 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Siamak Nosrati

VISA APPLICANT:  Mrs Farideh Nadri

CASE NUMBER:  1837256

HOME AFFAIRS REFERENCE(S):     BCC2018/4618289

MEMBER:C. Morfuni

DATE:17 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Tourist) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 Visitor (Tourist) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made 17 March 2021 at 12:05pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – previous compliant travel – ultimate wish to reside in Australia – desire not to jeopardise grant of contributory parent visa application in progress – elderly, widowed mother – husband’s work and business interests – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

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

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 19 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. A review of the delegate’s decision is a hearing de novo which means that the Tribunal looks at the evidence with fresh eyes and makes a decision based on the whole of the evidence before it at the date of its decision.

3. The visa applicant applied for the visa on 22 October 2018. concurrently with her husband who filed a separate application (AAT No. 1837253) and which is the subject of a separate decision by the Tribunal. 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.

4. 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.

5. 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 intended to stay in Australia temporarily for the purposes of the visa and therefore was not satisfied that she met the relevant criteria  in clause 600.211 in Schedule 2 of the Migration Regulations.

6. The Tribunal had before it the Department and Tribunal files, the relevant legislation comprising the Migration Act 1958 (the Act), the Migration Regulations 1994 (the Regulations), the migration Procedures Advice Manual 3 (PAM 3) and relevant Country Information.

7. The review applicant who is the visa applicant’s son was represented in relation to the review by his registered migration agent.

8. On 4 March 2021 the Tribunal received a submission from the representative attaching fresh evidence including a number of documents which had not been before the delegate. The Tribunal has read each of these documents and taken them into account in making its decision. The documents are listed in the email and are attachments to it. They include but are not limited to recent sworn evidence from the review applicant and his sister, written statement from the visa applicant, various financial including bank documents and business information pertaining to the visa applicant’s husband, the review applicant’s company search details and title searches and the representative’s submission which addresses but is not limited to the visa applicant’s previous travel to Australia and other destinations and her compliance with previous visa conditions. It also addresses her ties to Iran and her incentives to return there.

9. The 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The visa applicant sought the visa in 2018 for the purposes of, attending events in Melbourne in November and December 2018 including her son’s first wedding anniversary. Currently, her intention is still to visit family being her two children and grandchildren. These were and are currently a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

13. 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)).

14. In support of his application, the review applicant supplied a family register and composition, title deeds, bank statement, letter in support of the application, statutory declaration dated 22 October 2018, National ID card, passports indicating photograph, indicating previous travel and copy current passport indicating entry and exits.

15. 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.

16. The visa applicant indicated in her response document, as previously stated, that she intended to comply with all conditions of her visa and in the representative’s most recent submission on instructions, re-iterates that intention.

17. The Tribunal has also considered all other relevant matters (cl 600.211(c)) as outlined in paragraphs 18 - 21 below.

18. The written evidence and official files including movement records, indicate that the visa applicant and his wife have travelled to Australia a number of times and abided by all conditions and never overstayed their visas of had them cancelled. They applied for the Contributory Parent Visa (subclass 143) on 2 November 2017and indicate that they would not jeopardise that visa by not abiding with all required conditions.

19. The review applicant submitted a document headed statutory declaration and dated 20 October 2018 unsigned with no attestation clause which the Tribunal has treated as an unsigned statement and has given it some weight but not the weight of a properly attested statutory declaration.

20. The visa applicant’s husband has also provided a more recent written statement dated 3 March 2021 in which he describes his close family relationship with his children and the occasions on which he and his wife have visited Australia. He reiterates their honesty with both of their short and long-term plans indicating that they ultimately wish to reside in Australia but not before their subclass 143 visa is granted at which time he will finalise his professional and business affairs in Iran. He further reiterates that he and the visa applicant have strictly adhered in the past to the terms of and conditions of their visas and have undertaken to leave Australia. on or before the expiry of the period of stay of the visa and abide by visa conditions.

21. The written evidence further indicates that the visa applicant’s mother has, since the visa application was made, become a widow and is elderly. The visa applicant is concerned about her responsibilities to her mother and wishes to return to help to look after her and stay in touch with other members of her family.

22. The written evidence before the Tribunal indicates that the visa applicant and her husband would be self-funded during their visit producing financial proof of their financial status, that they will stay with the review applicant and his family during their visit. The financial documents submitted indicate that they would be able to afford that. The written evidence indicates that it has cost them AUD $100,000 to apply for the subclass 143 visa. The recently submitted documentation from the Department indicates that that visa was accepted but that there is a long wait for it to be processed.

23. On the basis of the written evidence before the Tribunal much of which was not before the delegate, the Tribunal is satisfied that the visa applicant has sufficient current ties to Iran in terms of available funds, her husband’s income stream, work, business interests including assets such as his shareholding in a financially sound company, responsibilities in relation to her mother, her and her husband’s previous travel history to Australia and elsewhere having abided at all times by Visa conditions and her desire not to jeopardise her chances of being granted the subclass 143 visa. These matters persuade the Tribunal that the visa applicant has sufficient incentive, to return to Iran at the end of the term of her visitor visa.

24. 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

25. 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