Rasooli (Migration)

[2021] AATA 2896

Rasooli (Migration) [2021] AATA 2896 (3 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Mehdi Rasooli

VISA APPLICANT:  Mrs Shakila Yawari

CASE NUMBER:  1920102

HOME AFFAIRS REFERENCE(S):          BCC2019/1825286

MEMBER:Stephen Witts

DATE:3 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 03 August 2021 at 2:27pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant and compliance with conditions – incentives to remain or return – applicant and sponsor married and partner visa application in progress – applicant currently living in third country with sponsor’s parents, and applicant’s parents in home country – economic and humanitarian conditions in home country – decision under review affirmed

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 14 May 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 13 April 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 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 (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 because the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 3 August 2021 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 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.

10. 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 Tribunal notes that there is no evidence before it of any substantive breaches of visa requirements by either applicant.

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. According to the delegate’s decision record dated 14 May 2019 provided to the Tribunal by the applicants, the delegate was not satisfied that the visa applicant, Mrs Shakila Yawari, born on 28 May 2000,genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted. According to the delegate it assessed country information regarding the visa applicant’s home country of Afghanistan noting that she was currently living in Iran, her family situation in her home country including the existence of no dependent family members, and that her spouse, the review applicant, lives in Australia, and that she has stated she was currently unemployed.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. In particular the Tribunal notes information provided up to October 2019 including financial information, employment information, rental and lease information, and a statutory declaration from the review applicant dated 23 July 2019 where it was stated that the review applicant, born on 21 March 1995,would like his wife to come to Australia as a visitor and that he will look after her.

14. The Tribunal also notes in particular other material including a statement by the review applicant received on 5 September 2019 stating that he is working as a full meat inspector and that he would like a favour from Australia to bring his wife here and that she will be genuine visitor. The Tribunal further notes a statutory declaration dated 23 July 2019 provided by the review applicant stating that he will look after his wife should she be allowed to come here as a visitor and provide all funding and accommodation necessary.

15. The Tribunal also notes material sent to it dated 22 October 2019 regarding the visa applicant including an entry visa for Iran dated 31 July 2019 and other material including money transfers sent by the review applicant to the visa applicant of various amounts approximating AU$200 and other personal information including texts and photographs testifying to the nature of the relationship.

16. At the hearing the Tribunal had a discussion with a review applicant regarding his application. He stated that he would like his wife, the visa applicant, to be able to come to Australia as a visitor as they have not seen each other now for some time. He stated that she will be a genuine temporary visitor to Australia because she is his wife and that they have a partner visa application pending since 2018 and that he would not want to put that application at risk. He stated that she is a citizen of Afghanistan and that she is currently residing in Iran with his parents who are also Afghan citizens. He stated that he also has other siblings in Iran and that her mother and father and several siblings reside in Afghanistan. He stated that she has never visited Australia or any other countries except for Iran and Pakistan. He stated that he has been in Australia since 2011 and that he is now a permanent resident and that he has a brother and aunties and uncles also here in Australia.

17. The Tribunal has considered this evidence carefully and notes that the visa applicant is living with the review applicant’s parents in Iran and that all her family are back in Afghanistan and that her husband is here in Australia. The Tribunal notes that the applicants do not have any dependent family members and that she does not have any dependent family in particular and that she has never visited Australia or another comparable country with a similarly beneficial migration profile. The Tribunal also notes that no evidence was provided in regard to any other commitments that the visa applicant may have either in her home country of Afghanistan or in her current country of residence in Iran.

18. The Tribunal is concerned that the visa applicant has a significant incentive to wish to come to Australia permanently and that she would wish to come to Australia to be with her husband and that she would wish to stay here. The Tribunal notes that the applicants have a partner visa application pending and the Tribunal acknowledges that such a permanent visa application cannot be held as a credible reason why an applicant may wish to reside permanently in Australia on a visitor visa. The Tribunal also notes the applicant’s statement that he would not want to put the partner visa application at risk by breaching a visitor visa. However, taken as a whole the Tribunal is concerned that the visa applicant has significant incentive in itself to be here in Australia whenever she can and to reside with her husband here permanently. The Tribunal notes as above the lack of incentive that the visa applicant has to return either back to her home country of Afghanistan, or to her current country of residence Iran, once here in Australia with her husband. The Tribunal finds that these are significant incentives which would encourage the visa applicant to attempt to stay here on a more long-term basis should she be able to come here as a visitor irrespective of any other future permanent visa application that may or may not progress. The Tribunal makes this finding in particular also considering the lack of incentive that the visa applicant has to return and to continue a life living with the review applicant’s parents in Iran with the rest of her family still residing in Afghanistan. The Tribunal finds that the circumstances as a whole lend weight to the contention that the visa applicant would not be a genuine temporary entrant to Australia.

19. The Tribunal has also considered that the economic and social circumstances back in the applicant’s home country of Afghanistan are particularly bad according to country information reports issued recently by the Department of Foreign Affairs and Trade which refers to Afghanistan’s limited economic opportunity and safety for its citizens. The Tribunal considers that Afghanistan’s economic and humanitarian crises of recent years are a significant factor promoting migration to Australia. The Tribunal accepts that at this present point of time the visa applicant is in fact living in Iran but notes that Afghanistan is the visa applicant’s home country and it is where her family resides and that therefore she would not wish to go back to her home country under those circumstances. The Tribunal has considered this information very carefully and is not satisfied that the conditions back in the visa applicant’s home country are conducive to her having a genuine intention to stay in Australia temporarily for the purpose for which the visa is granted. The Tribunal also notes that the visa applicant has not visited any other countries other than Iran, Afghanistan, and Pakistan, and that these are all countries which do not provide the same form of incentive to migrate permanently as Australia does and that therefore this also indicates that once here in Australia that the visa applicant may wish to stay in Australia permanently. The Tribunal also notes again the lack of other ties that the visa applicant has to her home country. The Tribunal finds that this lends weight to the contention that the applicant does not genuinely intend to visit Australia temporarily for the purpose for which the visa is granted.

20. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

21. For the above reasons the Tribunal is not 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 not met.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Stephen Witts
    Member