Rafatmah (Migration)

[2019] AATA 6524

Rafatmah (Migration) [2019] AATA 6524 (18 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Bahareh Rafatmah

VISA APPLICANT:  Mrs Mahsa Rafatmah

CASE NUMBER:  1832805

HOME AFFAIRS REFERENCE(S):          BCC2018/3389143

MEMBER:Margie Bourke

DATE:18 November 2019

PLACE OF DECISION:  

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 18 November 2019 at 2:49pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family Stream – genuinely intends to stay in Australia temporarily – incentives to return to home country – employment – immediate family – community involvement – alleged nondisclosure of previous visa refusal unintentional – misunderstanding – no evidence parents did not comply with visa conditions – 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 Immigration on 5 October 2018 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 7 September 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 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 the delegate was not satisfied the visa applicant genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted.

5. The review applicant appeared before the Tribunal on 18 November 2019 via video link from South Australia to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, and the visa applicant who attended the hearing via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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)).

10. I am satisfied that the visa applicant has not previously travelled to Australia and has not previously been the holder of an Australian substantive or bridging visa. There is therefore no evidence of whether the visa applicant has complied substantially with the conditions of a previous substantive or bridging visa in Australia.

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)). 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. I am satisfied based on the written and oral evidence before me that the visa applicant has employment to which she is committed and which she enjoys as a teacher in Iran. I am satisfied based on the written and oral evidence before me that the visa applicant has immediate family members, namely her parents, with whom she lives in Iran. I am satisfied that the visa applicant is involved in community activities in Iran, including that she is a qualified carpet weaver  teacher, and is currently in a horse riding club and training for jumping racing. I accept that the visa applicant has commitments to family, friends, employment, activities, and her community in Iran. I am satisfied that this amounts to evidence of a lifestyle in Iran to which the visa applicant intends to return.

13. I am satisfied based on the written and oral evidence before me that the visa applicant has a close relationship with her sister, the review applicant and also the review applicant’s son who is the nephew of the visa applicant. I am satisfied that the visa applicant wishes to spend time in Australia with her sister and her family. I am satisfied that the two sisters wish to spend time together and share the life and experiences that the review applicant has in Australia. I accept that the visit of the visa applicant would be support for the review applicant, and also be of benefit to her son who is now aged nine years.

14. I am satisfied that the review applicant’s parents have been granted visitor visas, and travelled to Australia on three occasions, in 2013, 2016 and 2018, and there is no evidence that the review applicant’s parents did not comply with the terms of their visas. I am satisfied that the review applicant and the visa applicant understand that if there is non-compliance by the visa applicant, this would affect the ability of the review applicant and her husband to sponsor members of their family to visit them in the future. I am also satisfied that I can rely to some extent on the compliance with the conditions of the visitor visa demonstrated by her parents on their three previous visits, when assessing the visa applicant’s intention to comply with the conditions of the visa.

15. I am satisfied that the evidence before me indicates that the visa applicant genuinely intends to comply with the conditions to which the visa may be subject.

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In the Department’s decision record dated 5 October 2018, a copy of which was provided to the Tribunal by the review applicant, the delegate referred to the visa applicant not disclosing in her online application form that she had previously been refused an application for an Australian visa. I have considered the online application lodged 7 September 2018 for the visitor visa provided by the visa applicant. I note that on page 4 of the application form the visa applicant answered yes to the question, “has this applicant previously travelled to Australia or previously applied for a visa?” I note that at page 15 the applicant answered no to the question, “has the applicant ever had a visa for Australia or any other country refused or cancelled?” I have considered that in the statutory declaration dated 20 August 2018 signed by the review applicant provided with the application form, the review applicant refers to her sister applying for a visitor visa which was refused in 2015.

17. After considering all the documents, I accept that the visa applicant had disclosed that she had previously applied for a visa in the application lodged online, and that the review applicant had disclosed the visa applicant had previously been refused an application for a visitor visa in her statutory declaration provided in support of the application for this visitor visa.

18. I have considered submissions in relation to whether there was intentional nondisclosure by the visa applicant. I accept that the answer no at page 15 was a misunderstanding of the question. I accept that the question was interpreted as meaning whether a visa had been refused or cancelled rather than a visa application had been refused or cancelled. I am satisfied that the visa applicant did not attend any nondisclosure of the previous refusal of an application for a visitor visa. On the contrary I am satisfied that the visa applicant disclosed to the Department in her application for this visitor visa which is the subject of this review, that her previous application for a visitor visa had been refused.

19. I note the delegate concluded there was nondisclosure and that this raised serious concerns for the applicant’s intentions to return to Iran within the validity of her visa. I find that the applicant has disclosed all relevant information. I am satisfied that the information provided by the visa applicant and the review applicant in relation to the application for the visa does not affect my assessment of her intention to comply with the conditions to which her visitor visa may be subject, or her intention to return to Iran before the expiration of the visa.

20. 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

21. 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.

    Margie Bourke
    Member