TORABI (MIGRATION) - [2024] ARTA 223

TORABI (MIGRATION) [2024] ARTA 223 (11 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Seyedeh Sara Torabi
Visa Applicant:  Ms Seyede Somaye Torabi
Respondent:  Minister for Home Affairs
Tribunal Number:  2433639

Tribunal:General Member M Moustafine
Place:Sydney
Date: 11 November 2024
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 11 November 2024 at 6:50pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – emotional support to family – committed relationship in Iran – employment and property ownership – offer of a substantial bond – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612; Schedule 8 Condition 8101
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2024 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 30 July 2024. 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.
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.
Evidence before the Department
Based on her visa application, the visa applicant is a 43-year-old citizen of Iran, born in Zanjan, where she is currently living. She is seeking the visa for the purpose of a family visit and tourism for one month, to provide emotional support to her sister, the review applicant, who is currently suffering from depression and going through a separation. The visa applicant is in a de facto relationship. Her partner, brother, niece, aunts and uncle will remain in Iran. The visa applicant has been employed as a professional with Omran Ofogh Eshragh since March 2023. Her visit will be self-funded, and she will stay with her sister, an Australian citizen, who will provide her with accommodation and additional support. The visa applicant has previously travelled to Turkey and was twice refused Australian visitor visas in October 2017 and August 2023.
Based on her sponsorship form, the review applicant is the visa applicant’s 36-year-old sister. She is an Australian citizen, born in Zanjan, Iran and has been employed by the Commonwealth Bank as a senior technical business analyst for two and half years. She has not previously sponsored any visitors to Australia.
The review applicant provided an invitation letter to the Department stating that she wished to have her sister visit her in Australia to provide emotional support as she was going through a separation from her husband after 16 years. She undertook to provide her sister with accommodation and cover any expenses. She stated that her sister has every intention of returning to Iran, where she has strong personal ties, including a committed relationship of over five years. She provides financial and emotional support to their brother and takes care of his daughter, after the loss of his business due to COVID-19 and subsequent divorce. She is willing to provide the maximum bond required to guarantee that her sister will leave Australia on time.
Key supporting documents submitted to the Department included translated copies of the birth certificates of the visa and review applicants demonstrating family relationship; a copy of the biodata pages of the visa applicant’s Iranian passports and her national identity card; the visa applicant’s employment certificate stating that she was employed as a full-time Electrical and Electronics Engineer with Omran Ofogh Eshragh Company since August 2023 and a copy of her payslip; a certificate of her previous employment; her Iranian bank statement; translated title deeds and property documents; various photographs of the visa applicant with family in Iran. Also provided were copies of the review applicant’s Australian passport; an ANZ bank statement on 15 April 2024; confirmation of her employment with the Commonwealth Bank and a payslip; two reference letters for the review applicant; an email to and letter of support from Paul Fletcher MP.
On 4 September 2024, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa grant. The delegate was not satisfied that the visa applicant had demonstrated sufficient evidence of financial, employment or personal ties that would provide strong incentive for her to return to Iran after a visit to Australia.
Evidence before the Tribunal
On 16 September 2024, the review applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision, providing a copy for the purposes of the review.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Documents provided in support of the application included a letter from the review applicant outlining her objections to the Department's decision and addressing points raised. Copies of the supporting documents previously submitted to the Department and listed at paragraph 7 above were also submitted.
The Hearing
The review applicant appeared before the Tribunal on 7 September 2024 by MS Teams videoconference to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by MS Teams teleconference from Iran. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The review applicant told the Tribunal that she is a dual UK and Australian citizen. She first came to Australia in 2016 on a subclass 457 temporary Skilled visa to work for the company she was working for in the UK and was subsequently sponsored by them for a permanent Skilled visa. She has been working at the Commonwealth Bank as a senior technical business analyst since 2022. She lives in a rented apartment but owns a unit which she is renting out. She wants her older sister, to whom she is very close, to visit her in Australia as she has no family or close friends here and has been suffering from depression due to her recent divorce after 16 years of marriage. She wanted her sister’s support at this challenging time and also wanted to show her sister her home and the city where she lives. The review applicant reiterated her willingness to provide a substantial bond as a guarantee that her sister will only visit temporarily.
Both the visa and review applicants told the Tribunal that the visa applicant planned to stay in Australia for no more than 4-5 weeks as she has to return to her full-time job as an electrical engineer. The visa applicant has a longstanding committed relationship with her partner and has financial and caring responsibilities for her brother, who lost his restaurant business, and his 11-year-old daughter, who live with her. These provide the visa applicant with strong incentives to return to Iran.
The sisters said they last each other when the review applicant visited Iran in 2021. The review applicant said she has now heeded the Australian government’s warning not to travel there, especially as she participated in anti-regime demonstrations in Australia in 2022. The visa applicant told the Tribunal she was not involved in politics and avoided political discussions. The review applicant said she herself had given up protesting against the Iranian regime as the protests did not change anything but resulted in the death of innocent people. The review applicant categorically rejected the possibility that her sister might participate in protests in Australia and then seek protection, saying that she hated politics, was tied to Iran where she had lived for 43 years and did not wish to leave.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.
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)).
As the visa applicant has not previously visited Australia, the question of previous compliance is not relevant. There is no evidence before the Tribunal of non-compliance with conditions of her previously held visa on the part of the review applicant.
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.
The Tribunal has considered the written and oral evidence of the review and visa applicants, as well as all the documentary evidence submitted in support of the application.
Based on the documentary evidence provided by the review applicant and her oral evidence at hearing, the Tribunal accepts that the review applicant will accommodate her sister during her stay in Australia, pay for her travel and expenses and has enough funds to cover her expenses during her visit and that the visa applicant can pay for her airfare. It accepts the evidence of the visa applicant that she does not intend to work or to study while in Australia. In these circumstances the Tribunal is satisfied that the visa applicant intends to comply with condition 8101 and Condition 8201.
Condition 8503 refers to entitlement and is not a condition that involves compliance.
In the context of the visa applicant’s intention to comply with condition 8531, the Tribunal accepts the evidence of the visa and review applicants that the visa applicant’s full-time job as an engineer, her relationships with her long-standing partner, as well as her family ties and obligations to her brother, whom she has been supporting financially and his daughter for whom she cares, provides her with strong incentive to return to Iran within the timeframe of her visa. Having considered all the evidence before it, the Tribunal is satisfied that the visa applicant intends to comply with condition 8531 and will not remain in Australia after the end of her permitted stay.
The Tribunal has also considered all other relevant matters (cl 600.211(c)). In view of the widespread participation of young Iranian women in anti-regime activism, the Tribunal explored this issue with the visa and review applicants. Based on their evidence at paragraph 15, the Tribunal is satisfied that the visa applicant will not engage in activism against the Iranian regime while in Australia in order to build a profile to seek protection.
Having considered all the evidence before it, 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
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.
Date of hearing: 7 November 2024