Tooti (Migration)

[2023] AATA 4592

Tooti (Migration) [2023] AATA 4592 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Soheil Tooti

VISA APPLICANTS:  Mr Mohammad Tooti
Mrs Farideh Siyahkar

REPRESENTATIVE:  Mr Hami Niroumand (MARN: 1169662)

CASE NUMBER:  2215673

HOME AFFAIRS REFERENCE(S):          BCC2022/4130027

BCC2022/4130042

MEMBER:Scott Clarey

DATE:12 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for Subclass 600 (Visitor) (Class FA) visas:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 12 December 2023 at 3:04pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – past compliance with visa conditions – immigration history – intention to comply with visa conditions – No Work condition – No Study condition – No Further Visa condition – No Further Stay condition – other relevant matters – presence of close family members in home country – property investments – access to a state pension – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 21 October 2022 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 2 October 2022. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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.

   Letter sent to the applicant pursuant to s.359(2) of the Act

4. On 21 August 2023, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act. The Tribunal explained that it was considering whether each visa applicant met cl.600.211 of the Regulations which requires that each visa applicant genuinely intends to stay temporarily in Australia for the purpose for which each visa is granted. In the letter, the Tribunal invited the review applicant to provide various information to support the visa applicants’ claims that they genuinely intend to stay temporarily in Australia. On 27 August 2023, the review applicant responded to the Tribunal’s request and provided the Tribunal with significant additional information in support of the visa applicants’ claims. The Tribunal has had regard to this additional information.

5. The review applicant and the visa applicants appeared before the Tribunal on 6 December 2023 via teleconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages. The applicant was represented in relation to the review.

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 applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted, having regard to whether the applicants have complied substantially with the conditions to which the last substantive visas, or any subsequent bridging visas, held by the visa applicants were subject; whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas would be subject; and any other relevant matter.

8. In the present case, the visa applicants seek the visas for the purposes of visiting the review applicant (the visa applicants are the parents of the review applicant) and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. In assessing the issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file as well as the oral evidence given at the hearing.

10. In considering whether the visa applicants genuinely intend to stay temporarily in Australia for this purpose, the Tribunal must consider whether they have complied substantially with the conditions of the last substantive visas held, or any subsequent bridging visa (cl.600.211(a)).

11. The review applicant gave oral evidence that his mother had previously visited Australia in 2012.  His father had not travelled to Australia previously. The Tribunal notes that the delegate’s decision record does not raise any issues relating to previous visa non-compliance by his mother. The evidence before the Tribunal is that his mother did comply with the conditions attached to her visa, including departing Australia before the visa ceased. The Tribunal accepts this and gives positive weight to his mother’s previous travel history to Australia and her compliance with immigration conditions.

12. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas would be subject (cl.600.211(b)). The conditions to which visas 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.

13. The Tribunal discussed each of these conditions with the review applicant and the visa applicants. The review applicant told the Tribunal that the visa applicants would comply with all conditions. He told the Tribunal that the visa applicants had no intention of remaining in Australia or working or studying here during the period of the permitted stay. The review applicant stated that he intended to apply to sponsor other family members to visit Australia again in the future. The review applicant said that both he and the visa applicants knew that any non-compliance from the visa applicants would all but guarantee visa issues for any future planned travel from other family members to Australia, which he stressed was a situation he was very keen to avoid. The Tribunal found the review applicant to be candid and credible and therefore accepts his oral evidence.

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

15. At the hearing, the Tribunal asked the review applicant questions relating to various factors that would act as an incentive for the visa applicants to remain in Australia after the proposed stay and those factors that would act as an incentive for them to return to Iran.

16. The Tribunal asked the review applicant why his parents had applied for the visitor visas to visit Australia. He stated that originally, he had applied for parents to visit him in Australia. The review applicant said that his parents would stay with him at his home for the duration of their trip.

17. When asked about his parents’ life in Iran, the review applicant said that his parents had very strong connections to their Iran based family, including two daughters who were there who both had children of their own (the visa applicants’ grandchildren). Both visa applicants also had extensive extended family in Iran. The review applicant said that his parents had strong social and cultural ties to Iran. He said his mum was religious and had strong ties to her community there. The review applicant said that his parents were both retired and financially very stable, with property investments, including two houses and a commercial office building that they rented out for income. He said they both were recipients of a state pension, based on their work as public servants. He said his parents did not speak English and had no intention of coming to Australia to stay. 

18. The review applicants told the Tribunal that his parents were both public servants and have since retired comfortably in Iran. They said they have a property portfolio there and they both receive a regular pension payment based on their previous jobs. They said they have never had any issues with the government. They have two daughters and grandchildren in Iran that they were very close to. The visa applicants said they lived a good, comfortable life in Iran and had no reason to not want to return there.

19. The Tribunal raised with the review applicant concerns relating to country information, including information contained in the Department of Foreign Affairs and Trade country information report on Iran. The Tribunal asked the review applicant if the significant political and economic issues within Iran could be a reason for the visa applicants not to comply with the conditions of their visas if they were granted. The review applicant acknowledged these issues but said that his family had no issues or problems in Iran. They had no problem with the social order in Iran and simply wanted to visit their son in Australia and return to their well-established life in Iran. The visa applicants reiterated this to the Tribunal and said that they have never had any issues with the government, and don’t have any social, political or economic issues in Iran. The Tribunal accepts this.

    Findings

20. After considering all the evidence before it, on balance the Tribunal considers that factors such as the presence of the visa applicants’ children and grandchildren in Iran, their extended family there, their well-established life in Iran, including their property investments and access to a state pension, form stronger incentives for them to return to Iran than the incentive for them to remain in Australia. The Tribunal also gives weight to the past visa compliance of the review applicant’s mother who previously visited Australia, and the incentive for compliance that the review applicant discussed at the hearing, given his intention to sponsor other family members to visit him in the future. The Tribunal accepts that the visa applicants have a genuine intent to stay temporarily in Australia to visit the review applicant and other family members here. The Tribunal accepts that the visa applicants intend to return to Iran within the specified timeframe.

21. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

22. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for Subclass 600 (Visitor) (Class FA) visas:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Scott Clarey
    Member