Samani (Migration)

[2018] AATA 2933

Samani (Migration) [2018] AATA 2933 (28 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Mehdi Samani

VISA APPLICANT:  Ms Mina Rafieisamani

CASE NUMBER:  1721773

DIBP REFERENCE(S):  BBC2017/3187358

MEMBER:Susan Trotter

DATE:28 June 2018

PLACE OF DECISION:  Brisbane

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 28 June 2018 at 10:12am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – Visiting family members – Genuine intention to stay temporarily – Stable long-term job in Iran and owns property in Iran – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600,222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection (the Minister) on 10 September 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review applicant is a 37 year old Australian citizen. The visa applicant, a 44 year old citizen of Iran, is his sister who is seeking a visitor visa to visit her brother and his wife in Australia.

3. The visa applicant applied for the visa on 3 September 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

4. 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 that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. 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’s intention to only visit Australia was genuine.

6. The review applicant, the visa applicant’s brother, lodged an application for review of the delegate’s decision with the Tribunal on 14 September 2017.

7. The review applicant appeared before the Tribunal on 23 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Iran. The Tribunal was assisted by an interpreter in the Persian and English languages.

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

   ISSUES

9. Clause 600.211 requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Cl.600.221 and cl.600.222 set out the purposes for which a visa in the Tourist stream may be granted.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated purpose, cl.600.211(a) requires consideration of whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa.

11. Clause 600.211(b) also requires consideration of whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The mandatory 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 three months.

12. Clause 600.211(c) requires that consideration also be given to any other relevant matters. Department policy states that relevant consideration of any other matter may include, but is not limited to:

    ·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:

    ·   ongoing employment

    ·   the presence of immediate family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia

    ·   property, or other significant assets, owned in their home country

    ·    whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance.

    ·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:

    ·   economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia

    ·   economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.

    ·   the applicant’s personal ties to Australia, that is:

    ·   does the applicant have more close family members living in Australia than in their home country

    ·   is the applicant subject of adoption proceedings that have not been resolved in their home country

    ·   military service commitments

    ·   civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.

    ·the applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).

    ·whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with "tourism").

    ·previous immigration and travel history, such as:

    ·   previous visa applications for Australia

    ·   previous overseas travel, that is, has the applicant travelled to countries other than Australia.

    In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

    ·information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country. Such information, including the Modified Non Return Rate (MNRR), which is published quarterly on the department’s website may assist officers in deciding whether closer examination of an application is required.[1]

    [1] It is noted as regards this factor that “The mere fact that an applicant matches the characteristics of a profile is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant’s circumstances might be required. All applications must be considered on their own merits taking into account all the information and supporting documentation provided by the applicant.”

13. It follows that the issue to be determined by the Tribunal is whether the visa applicant intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a)  Is the purpose of the visa an allowed purpose for a Tourist visa?;

    (b)  Has the visa applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?;

    (c)  Does the visa applicant intend to comply with the conditions to which the visa would be subject?; and

    (d)  Are there any other relevant matters?

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the visa applicant intend to stay temporarily in Australia for the purpose for which the visa is granted?

    Is the purpose of the visa an allowed purpose for a Tourist visa?

14. The visa applicant stated in her visa application that she wishes to visit Australia for the purpose of “Tourism/Visit family or friend”.

15. The Tribunal is satisfied that this is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

    Has the visa applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?

16. The visa applicant has not previously travelled to Australia and therefore there is no evidence of substantial compliance or non-compliance with visa conditions on previously held visas.

    Does the visa applicant intend to comply with the conditions to which the visa would be subject?

    Are there any other relevant matters?

17. The question as to whether the visa applicant intends to comply with the conditions to which the visa would be subject necessarily also requires consideration of any other relevant matters.

18. The documents before the Tribunal included as follows:

    (a)  A bank account statement showing significant monies deposited in the visa applicant’s name in an account in Iran;

    (b)  Title deeds evidencing the visa applicant’s ownership of property in Iran;

    (c)  An itinerary for flights for the visa applicant’s originally intended travel dates to Australia from 16 October 2017 to 30 December 2017;

    (d)  Documents evidencing significant funds held by the review applicant in Australia showing that he is able to support the visa applicant during her proposed stay in Australia;

    (e)  Evidence of the review applicant’s employment as a general practitioner in Australia;

    (f)    A letter from the visa applicant’s employer in Iran confirming a leave of absence from 25 October 2017 to 30 November 2017.

19. The Tribunal accepts on the evidence before it that the visa applicant is currently aged 44 years of age and lives with her mother in Tehran, Iran and has done for approximately the last seven years following the breakdown of her relationship with her husband, whom she married at a very young age. The Tribunal further accepts that the visa applicant’s legal divorce from her ex-husband has taken over seven years and that during that time the visa applicant was unable to depart Iran without her ex-husband’s permission. Now that the divorce is finalised she wishes to visit her brother and his wife in Australia and assist her mother who also wants to visit them.

20. The Tribunal accepts that the visa applicant has two brothers (and their families) living in Iran and one brother, the review applicant, living in Australia. The review applicant is a general practitioner and a citizen of Australia. His wife, who is also of Iranian descent, is a trainee surgeon.

21. The Tribunal accepts that the review applicant’s wife’s parents have previously visited Australia on visitor visas with no issues and have complied with their visas. The Tribunal notes that on this basis the visa applicant and the review applicant did not anticipate there would be any difficulty with the visitor visa application by the visa applicant and were shocked at the delegate’s decision.

22. The Tribunal accepts the separately given, but consistent evidence, of the visa applicant and the review applicant that the visa applicant wishes to visit Australia for approximately three weeks to a month, however initially booked her flight dates for a longer period to allow as much flexibility as possibility depending upon what transpired with her visa application. The Tribunal also notes that the visa applicant’s and review applicant’s mother was granted a visitor visa (which expired on 31 March 2018) but did not visit Australia as intended because of the refusal of the visa applicant’s visa, and therefore the visa applicant’s inability to accompany her and assist her with the travel practicalities as required, given her mother’s fear of flying, age and language and other difficulties that make it difficult for her to travel by herself.

23. The review applicant told the Tribunal that since he has been in Australia, his family has not had the chance to come and visit him in Australia and he thought it would be an easy process. It seems to him that the concern is about whether the visa applicant would go back to Iran. However, if she wanted to come to Australia to stay, she would have applied for another type of visa like a student visa. It is just a visitor visa that she wants. She just wants to visit. She has assets and a job in Iran. She has ties to Iran such that she would return. Both their other brothers reside in Iran (although one is currently working in Dubai). His mother and the visa applicant have lived together since the visa applicant’s marriage breakdown.

24. The review applicant stated that he and his wife are the visa applicant’s only family in Australia. They do not have plans for any children. His mother does not want to remain in Australia and nor does his sister. Their ties and most of the family are in Iran. His sister, the visa applicant, has two apartments in Iran. She rents them out because she lives with their mother. His mother and his sister do not want to stay in Australia for three months or any longer. They just want to stay for three weeks. That is about the maximum time that would suit him and his wife because they are both very busy in their jobs and they will need to take time off to assist his mother and sister when they come. His wife’s mother has visited Australia numerous times and returned to Iran. He and his family, including the visa applicant, are all of the Muslim religion although, as is not uncommon in Iran, are non-practicing. However, none of them have renounced their religion nor have they converted to any other religion. His sister, the visa applicant, has no fear of returning to Iran for reason of her religion or any other reason. There is also no issue with her returning as a now divorced woman. The visa applicant separately confirmed that she is a non-practising Muslim who has not renounced her religion nor converted to another religion and has no fear of returning to Iran for religious or other reasons.

25. The review applicant told the Tribunal that he has had a hard time even convincing his mother to come to Australia for just a week. He managed to persuade her to come for a few weeks as given the long travel distance and time to and from, any less time is just not worthwhile. He just wants his mother to see where he lives and she cannot logistically travel without someone else, and his sister, the visa applicant, is best placed to be her travel companion. He has shown his mother through webcam what it is like here so that she can appreciate where he lives but it is just not the same as her visiting.

26. The visa applicant told the Tribunal that she understands that she would have to comply with the conditions of the visa and has no intention of studying, working or training in Australia. She just wishes to visit.

27. The review applicant stated that he is happy to pay for a bond in relation to the visa and both he and the visa applicant understand that if the visa applicant does not comply with the visa conditions, it might have adverse consequences for people wanting to visit him in the Australia in the future.

28. The visa applicant told the Tribunal that she just wants to visit her brother in Australia and to assist her mother in visiting him. She has no other purpose. She has been waiting for ten years because of the very extended period it has taken to finalise her divorce.

29. The Tribunal acknowledges the concerns held by the delegate. However, the Tribunal has had the benefit of talking to both the review applicant and the visa applicant in detail. They both impressed the Tribunal with their candour and their genuine perplexity that there could be a concern in the visa applicant being granted a visitor visa. In particular, as a non-practising Muslim who has not renounced her religion or converted to another religion, the visa applicant adamantly stated that she has no reason to fear returning to Iran on that basis, or on any other basis. The Tribunal also accepts that most of the visa applicant’s family live in Iran, with the review applicant and his wife being her only family in Australia. The Tribunal further accepts that the visa applicant has a stable long-term job in Iran and owns property in Iran. Whilst those matters are not necessarily permanent ties, taken in the context of the visa applicant’s total circumstances, the Tribunal considers the visa applicant’s incentives to depart Australia after a short visit outweigh any incentives she may have to remain in Australia.

    Conclusion

30. Having taken all of the above matters into account, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    DECISION

31. 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.

    Susan Trotter
    Member