Rohani (Migration)

[2019] AATA 1707

Rohani (Migration) [2019] AATA 1707 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Penny Rohani

VISA APPLICANT:  Mr Parviz Rahavi Ezabadi

CASE NUMBER:  1803788

HOME AFFAIRS REFERENCE(S):           BCC2017/4705885

MEMBER:Nora Lamont

DATE:25 February 2019

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 25 February 2019 at 2:01pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuinely intends to stay in Australia temporarily – visa to visit siblings, nieces and nephews – complied with previous visa – incentives to return to home country – steady employment – assets – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, conditions 8101, 8201, 8503, 8531

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 29 January 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 10 December 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 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 it was considered they did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 25 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Iran. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages for the purposes of calling the visa applicant in Iran.

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 his sister and two brothers and nieces and nephews. 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)).

   Background

10. The visa applicant is Parviz Rhavii Ezabadi is a 50 year old male born in Iran. He has never been married and has no children. His sister and two brothers live in Australia all three arriving as refugees in the 1980’s and 1990’s. The applicant’s parents are deceased and he is the last remaining relative in his immediate family.

11. The applicant visited Australia in 2006-2007 and abided by all the conditions of his visa and returned to Iran prior to the expiry of his visa. The applicant has also been on holidays to Turkey on two occasions and also abided by his visa conditions.

12. The applicant is sponsored by his sister who has been a resident in Australia since 1994. She would like for her brother to visit to see his nieces and nephews and to reconnect with the family. He would like to come for one to two months and has been given permission from his place of employment for leave to come to visit in Australia. The applicant provided employment documentation and bank statements. The applicant also has a large superannuation type of account and owns his own home in Iran.

13. The planned arrival date was 10 January 2018.

14. The application was refused. The decision outlines that the delegate did not accept that the applicant genuinely intended to stay temporarily in Australia for the purposes for which the visa is granted. Regard was given to whether the applicant complied with the conditions on their last held visas, whether there is an intention to comply with conditions on the visa which is the subject of this review and any other relevant matter.

15. The decision record states that the delegate gave significant weight to the fact that the applicant has declared on their application form that they have no remaining family in Iran and the delegate placed significant weight that the strength and balance of the applicant’s family ties residing in Australia may act as a disincentive for the applicant o depart Australia and return to Iran within the visas validity. The delegate therefore did not consider the applicant to be a genuine visitor.

16. Further the delegate found the applicant did not provide sufficient evidence of employment and his financial situation.

    600.211(a)

17. 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)).

18. The applicant has been to Australia before. He has also been to Turkey on two occasions. There is a demonstrated history of travel and compliance with his visa conditions. The applicant’s entire family lives in Australia and has done so for 25-35 years. The Tribunal considers that if the applicant intended to migrate to Australia he would have done so earlier.

19. The Tribunal also places weight in the applicant’s favour because the Tribunal has no information that the applicant did anything other than adhere to the conditions of his visas and returned to Iran prior to the expiry of his visas. The Tribunal considers that if the applicant was paving the way for permanent residency in Australia by changing his visa status onshore, he could have done so on his last trip to Australia.

20. 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.

21. Given that the applicant is 50 years of age, the Tribunal is satisfied he is not coming to work and therefore he would comply with condition 8101. Similarly the Tribunal considers it unlikely given he does not speak English that the applicant would come to Australia to study on a long-term basis.

22. The Tribunal notes that the applicant has two brothers and a sister in Australia. This, in other circumstances, may well represent an incentive for the applicant to change his status onshore. However, given the fact that his siblings have been here for an extensive period of time, and the fact that the applicant himself has travelled to Australia before and not attempted to change his migration status the Tribunal is satisfied the applicant will comply with the conditions on his visa and the Tribunal is satisfied he intends to come to Australia temporarily.

23. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The applicant’s family all migrated here and there is nothing before the Tribunal to indicate the applicant’s family has any adverse immigration history which is relevant to his genuine intention to stay in Australia for the purposes for which the visa is granted.

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.

    Nora Lamont
    Member