Pasdar (Migration)

[2018] AATA 3522

Pasdar (Migration) [2018] AATA 3522 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Katayoun Pasdar

VISA APPLICANT:  Ms Zeinab KOUHMISHI

CASE NUMBER:  1727014

HOME AFFAIRS REFERENCE(S):           BCC2017/3786715

MEMBER:Meena Sripathy

DATE:10 August 2018

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 10 August 2018 at 10:30am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Visit to support sister care for children –Nephew unwell –  Adequate means of support – First visit overseas – Guarantee of financial support from brother-in-law – Incentive to return – Parents and younger siblings in Iran – Favourable family immigration history – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.221

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 2 November 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 16 October 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, on the evidence provided, the delegate was not satisfied that the visa applicant’s intention to only visit Australia temporarily was genuine.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant is a 21 year old single female from Mashad, Khorasan-E Razavi Province, Iran. She seeks the visa to visit and provide support to her sister, the review applicant who at the time of application was pregnant with her third child.  Included with the application were documents supporting the visa applicant’s identity and relationship with an Australian permanent resident (her sister); letter of support for the visit from the visa applicant’s sister’s doctor in Australia referring to her pregnancy and history of past complications including post natal depression; Statutory Declaration guaranteeing financial support from the visa applicant’s brother in law and evidence his income.

8. The delegate refused the application on the basis of concerns given the visa applicant’s age, and lack of dependents and employment as incentives for her to return home at the end of a visit.  No mention is made by the delegate of the stated purpose of the application or any specific evidence to support the concerns expressed regarding the visa applicant’s intentions.

9. Before the Tribunal, the review applicant provided copies of supporting documents previously provided with the application.  In May 2018 she provided a further letter from her treating doctor stating the review applicant is 6 weeks post partum and referring again to her history of severe post natal depression and recent symptoms of concern. The doctor referred to her urgent need for support and assistance from the visa applicant, as she has no other family support, her husband is working full time and she has two other young children in addition to the new born baby.

10. On 7 August 2018 an officer from the Tribunal contacted the review applicant to arrange a hearing date.  The review applicant informed the Tribunal that 2 weeks ago her son was diagnosed with brain cancer and for this reasons she was unable to attend a hearing at this time.  She reiterated her need for her sister to visit to provide support. The officer asked the review applicant to provide a letter from the hospital to confirm her son’s circumstances. 

11. On 9 August 2018, the Tribunal received a support letter from Ms Amy Bulloch, Social Worker at Sydney Children’s Hospital, confirming the serious health condition of the review applicant’s two year old son.  Ms Bulloch stated that the child has had two recent surgeries and will require increased care at home upon discharge.  The review applicant has two other children including a 4 month old baby and a school age child; her husband is required to work full time to bring in the family income and it would be of immense help if the visa applicant can travel to Sydney to provide support, including emotional and practical support to help the family cope during this challenging period.

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of providing emotional and practical support to the review applicant and her family, in the circumstances of the birth of her third child and now the serious illness of her two year old son. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

14. 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)). The visa applicant has not previously travelled to Australia or anywhere outside Iran and therefore there is no relevant personal migration history to consider.

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 (3)): 8101 – must not work in Australia and 8201 – must not engage in study or training in Australia for more than 3 months.  Other conditions including 8503, 8501 and 8558 may be imposed. There is no information before the Tribunal to indicate the visa applicant is likely to work or study, and given the reasons for her visit and review applicant’s need for her support with the family, it considers it unlikely that she will seek to work or study.

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the material before it the Tribunal accepts that the visa applicant is the sister of the review applicant, and that she is 21 years of age, unmarried and has her parents and two younger siblings at home. She does not indicate any ongoing employment or dependents, which the Tribunal does not find surprising given her relatively young age. 

17. The Tribunal notes the delegate expressed concerns that the applicant has no travel history and has not shown any social or employment commitments in Iran, but this is not necessarily a concern for the Tribunal, taking into account her age and circumstances.  On the contrary, it considers she has close family ties in Iran, being her parents and younger siblings and they provide an incentive for her to return.   The Tribunal also notes the delegate made no mention of the compelling purpose for the visit as at the time of application, which was supported by evidence from her sister’s doctor in Australia. Before the Tribunal this purpose is now even more compelling and compassionate with the recent serious illness of the review applicant’s two year old son and added pressure on the family this has caused. 

18. The Tribunal has considered the migration history of the review applicant and her husband, and notes they have been long term and lawful residents since 2012.  There is no reason why, given this favourable family visa history, the visa applicant would not also comply with her visa conditions. Further, any non compliance by the visa applicant during this visit is likely to impact future visits by family members and this is another incentive for compliance.

19. The Tribunal has considered general country information regarding economic and political conditions in Iran to the extent that this is relevant to the issue of the visa applicant’s intentions. In particular it has noted information about rising inequality in the visa applicant’s hometown of Marshad, which was the starting point of last year’s wave of anti-government protests.[1]  While the Tribunal acknowledges that this may be a factor that discourages the applicant from returning home, this is speculative only and in the absence of any other specific evidence to indicate why the visa applicant in particular would be likely to remain in Australia for this reason, the Tribunal, gives it little weight in its assessment of all relevant matters in this particular case. 

    [1] See for example, Mashhad in the spotlight: inequality plagues Iran's holy city, 22 Janaury 2018, The Guardian, >

    For all the above reasons, and placing particular weight on the recent circumstances relating to the review applicant’s son’s illness, as well as the recent birth of her new baby, and the family’s critical need for the visa applicant’s visit at this time in these difficult circumstances, the Tribunal finds there is a strongly compassionate and compelling purpose for the visa applicant’s visit. It is satisfied that she 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.

    Meena Sripathy
    Member