Pourabdollah (Migration)

[2021] AATA 5476

Pourabdollah (Migration) [2021] AATA 5476 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yasaman Pourabdollah

VISA APPLICANT:  Mr Jamshid Pour Abdollah

CASE NUMBER:  1933006

HOME AFFAIRS REFERENCE(S):          BCC2019/4321659

MEMBER:Mark Bishop

DATE:12 October 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.

Statement made on 12 October 2021 at 10:53am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting a daughter in Australia – intention to comply with visa conditions – travel and migration history – economic and financial incentives – economic and social conditions in home country – 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 18 September 2019 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 29 August 2019. 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 did not meet cl 600.211.

5. On 12 October 2021 the Tribunal remitted for reconsideration review application number 1931897. The Tribunal gave detailed reasons for making that decision. The VA in this review application (case number 1933006) is the husband of the VA in case number 1931897. The VA in this review application was represented by the same firm of solicitors as the VA in case number 1931897 and provided submissions that in relevant detail were identical to the submissions provided to the Tribunal in case number 1931897. The Tribunal has given weight to those submissions and the decision in case number 1931897. It would be odd to do otherwise as the VA’s in both review applications are husband and wife, live together in Iran, have the same interests in family, (not unnaturally in the case of a married couple seeking to visit children) travel together and have the same incentive to adhere to visa conditions imposed by a host country. See under at paragraphs 12 to 18.

6. The Tribunal resolved the review application on the papers.

7. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 purposes of visiting a daughter in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

11. 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) and (c)). The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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. On 12 October 2021 the Tribunal remitted for reconsideration review application number 1931897. The Tribunal gave detailed reasons for making that decision. The VA in this review application (case number 1933006) is the husband of the VA in case number 1931897. The VA in this review application was represented by the same firm of solicitors as the VA in case number 1931897 and provided submissions that in relevant detail were identical to the submissions provided to the Tribunal in case number 1931897. The Tribunal has given weight to those submissions and the decision in case number 1931897. It would be odd to do otherwise as the VA’s in both review applications are husband and wife, live together in Iran, have the same interests in family, (not unnaturally in the case of a married couple seeking to visit children) travel together and have the same incentive to adhere to visa conditions imposed by a host country.

13. The Tribunal has considered the evidence carefully and notes that the visa applicant has travelled to other countries, specifically Canada, India and Thailand in more recent years. The Tribunal has evaluated this carefully and notes that the visa applicant has actually visited a comparable country to Australia with a significant potential beneficial immigration outcome. The Tribunal acknowledges that Thailand is similar to the visa applicants’ home country of Iran in terms of limited economic and social opportunity but also notes that Thailand does not provide similar beneficial migration incentives and that also Thailand does not offer a beneficial migration incentive when compared with that of Australia, a modern industrial economy with a significant social welfare protection environment also noting in particular that the visa applicant’s close family is living and working here in Australia. The Tribunal notes the close family of the VA lives in both Canada and Australia.

14. The Tribunal has considered this evidence carefully (as set out above in paragraph 12) and finds that the VA’s travel history does encourage the point of view that he is a genuine visitor or tourist to Australia and that this lends weight to the contention that the VA is seeking a genuine visit to Australia and will stay temporarily in Australia.

15. The Tribunal has considered the evidence provided in regard to the VA’s incentive to return to his home country in particular the economic and financial incentives generally taking into account that the visa applicants’ own property, the fact he has a has a senior job as managing director of a corporation and receives a generous salary and the existence of extensive immediate family and friends in Iran and bank deposits. The Tribunal notes the non-return to such a senior position will have immediate harmful financial consequences for the VA to the extend his retirement benefits are not currently vested or readily accessible from Australia. The Tribunal has evaluated this evidence carefully and whilst noting that property and financial assets can be liquidated without complication the Tribunal is not aware of any evidence that suggests this outcome is probable. Indeed all the available evidence suggest the VA and his wife (quite naturally) visit and wish to continue visiting their children in western countries. The Tribunal notes that breach of a condition attached to an Australian visa might have adverse consequences if the VA sought further entry into Canada in the future. On that basis the Tribunal after careful consideration finds that the ownership of such property and the holding of such assets back in their home country does in this case act as a significant incentive for the applicant to return to his home country and that this also lends weight to the contention that the visa applicant does intend a genuine temporary visit to Australia.

16. The Tribunal has also considered the general economic and social conditions back in the VA’s home country and notes that country information reports of recent times by the Department of Foreign Affairs and Trade does indicate that there are deleterious conditions. of life that would act as an incentive for the applicant not to return to his home country and that the VA does not genuinely intend to stay in Australia temporarily. Indeed the delegate quite properly and correctly summarised the economic situation and took into account “the current economic situation in Iran as recently the economy has seen weak growth, high unemployment, and the continuing devaluing of the local currency.” The Tribunal has considered this statement and similar commentary in the country information reports that are both relevant and up to date.

17. However on balance the Tribunal is persuaded by the totality of the evidence 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.

18. 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

19. 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.

    Mark Bishop
    Member