Samadi (Migration)

[2019] AATA 2933

Samadi (Migration) [2019] AATA 2933 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hasti Samadi

VISA APPLICANT:  Mr Alborz Samadi

CASE NUMBER:  1827884

HOME AFFAIRS REFERENCE(S):           BCC2018/2845739

MEMBER:Brendan Darcy

DATE:18 March 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 18 March 2019 at 12:31pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream genuine temporary entrant – purpose of visit to assist review applicant with children – compliant visits to other countries – review applicant’s parents previous visits to Australia – visa applicant’s ties to Iran – secure economic status – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Conditions 81001, 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 23 August 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 30 July 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.

5. The review applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments.

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

   Background

7. The review applicant, born in Iran, was granted a Class VE Subclass 175 skilled independent (permanent) visa as a computer engineer in 2010 before arriving in Australia with her then husband and first born child on 31 August 2010. Her second child was born in Australia in 2014. The review applicant became an Australia citizen in 2017.

8. The review applicant was born in Iran on 21 March 1987.  The review applicant is the biological brother of the visa applicant.  

9. When the review applicant applied for the delegate’s refusal decision to be review with the Tribunal on 23 August 2018, she attached the delegate’s decision record.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant and her children. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. 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)).

13. Although it was not mentioned in the delegate’s record, the visa applicant had previously visited Australia between 16 March 2012 and 12 April 2012 while holing a visitor visa granted on 22 January 2012. There is no evidence in the movement record that the visa applicant overstayed his visa or breached any conditions while holding this visitor visa. The Tribunal places considerably weight on this earlier compliant visa history in indicating that the visa applicant genuinely intends to stay temporarily in Australia for the purposes of his visa.

14. 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.

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

16. With regard to the review applicant’s own visa and travel history, the Tribunal notes there is no evidence that the review applicant has been non-compliant while holding Australian visas. 

17. The review applicant claimed that she wanted the visa applicant to come to Australia as her older child has an intellectual/behavioural disability (Autism Spectrum Disorder) as well as anxiety.  Since her divorce with her husband, the review applicant claims managing her son’s disability has been difficult. It is further claimed that the review applicant has relied on other family members to assist her with the care of her child and to provide her with respite as a sole parent. Her parents who own a pharmacy in upscale northern Tehran, have been visiting Australia on a regular basis while holding visitor visas for many years. However, they have ongoing responsibilities. She argued that if her brother was able to visit this would greatly assist her and her children.  There is no evidence before the Tribunal that the applicant’s parents have breached the conditions on these visas or applied for any other substantive visas. This strongly indicates to the Tribunal that the visa applicant belonged to a family who is economically comfortable who has been compliant with Australia’s migration laws, while providing respite to the review applicant and her children.   

18. The visa applicant has also visited Hungary, France and other European Union countries as well as other countries on multiple times. It was claimed that the visa applicant was compliant with the migration laws of those countries. There is no evidence before the Tribunal that the visa applicant has been non-compliant during earlier international travel, further indicating that he is a genuine temporary visitor.

19. The visa applicant has a number of ties to his community in Iran. Firstly, he is a meaningful de facto relationship with a woman with whom he has been sharing the same accommodation in Tehran for more than twelve months. Secondly, the visa applicant has provided evidence that he owns his own apartment. Third, the visa applicant is a qualified network computer engineer who also owns a touring company.  And lastly, he claims to be the responsible pet owner of two cats. It is not claimed that the visa applicant has any other immediate family members such as dependent children. The Tribunal accepts this and finds that it does not indicate, when cumulatively considered, that the applicant has strong incentives to breach conditions 81001, 8201, 8503 and 8531.

20. Nevertheless, Iran remains a country whose economy struggles due to its long history of isolation and corrupt and oppressive governance. According to the most recent DFAT report on Iran, frustration over the state of the economy was a key driver of recent protects in late 2017/early 2018 and that poor economic opportunity act as a as a significant ‘push factor’ for emigration from Iran. The Tribunal does not discount these factors in finding the visa applicant will not stay temporarily in Australia for the purposes of a visit visa.

21. However, it is the overall view of the Tribunal that these concerns regarding risk factors not to temporarily visit Australia are outweighed by other positive aspects of the case.   The Tribunal is satisfied that the visa applicant belongs to a relatively comfortable and entrepreneurial middle class family in Tehran with sound employment.  His personal and economic circumstances demonstrate that he does not have sufficient incentives to breach the conditions to be imposed upon his visa, if granted, despite the economic and political turmoil in his country of nationality. In the context of the visa applicant’s earlier compliant visa history and that of his other family members, the Tribunal finds there is insufficient evidence the applicant has any strong incentives to circumvent any visa conditions in order to remain in Australia longer than the expiry date of a visitor visa.

22. Considering the visa applicant’s circumstances cumulatively and for the reasons set out above, the Tribunal is satisfied that the visa applicant’s stated intention to visit Australia temporarily for the express purpose of visiting his sister and nephews is genuine.

23. 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

24. 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.

    Brendan Darcy
    Member