SOLEIMANIAN BRUJENI (Migration) [2018] AATA 5491 (29 October 2018)

Last Updated: 6 May 2019

SOLEIMANIAN BRUJENI (Migration) [2018] AATA 5491 (29 October 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mr Mashiatallah SOLEIMANIAN BRUJENI

VISA APPLICANT: Ms Jalileh SOLEIMANIANBOROUJENI

CASE NUMBER: 1728141

HOME AFFAIRS REFERENCE(S): BCC2017/2795961

MEMBER: Melissa McAdam

DATE: 29 October 2018

PLACE OF DECISION: Sydney

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 29 October 2018 at 9:53am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – genuine intention to stay temporarily – stable and highly respected employment in Iran – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 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 Immigration on 12 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 was represented in relation to the review by his registered migration agent.
3. The visa applicant applied for the visa on 5 August 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.
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 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.
5. The visa applicant provided the following information in her visa application:
   1. She was born in 1976 in Esfahan, Iran.
   2. She wishes to visit Australia for approximately one month between October and November 2017, and travel here with her mother.
   100. She is single and lives in Boroujen in Esfahan. She has a brother and sister who also live in Iran.
   4. She has another brother, the review applicant, who lives in Australia. He is an Australian citizen.
   5. She has been employed at the Ministry of Agriculture since June 2000.
   6. She has some savings which she will use for her visit and will also be supported by the review applicant here.
   7. She was refused a Visitor visa five years ago.
   8. She enclosed copies of the following documents with her application:
      9. Ministry of Agriculture, ‘Employment Decree for Permanent Member of Staff’, issued to the visa applicant on 6 November 2016.
      2. A Job Certificate issued by the Deputy Manager of Human Resources, Ministry of Agriculture, dated 13 November 2016, stating the visa applicant has been employed in Boroujen Management of Jahad and Agriculture since June 2000.
      3. Her Iranian National Identity Card.
      4. Her bank account statement showing a closing balance of 230,510,185 Iranian Rials as at May 2017.
      5. An Education Certificate issued by the University of Bu-Ali Sina to the visa applicant stating she is enrolled in a Master’s degree in Agricultural Engineering at the university.
      6. Deeds of Property in the visa applicant’s name.
      7. The biodata page of the visa applicant’s Iranian passport.
      8. Entry and Exit Stamps in the visa applicant’s passport showing travel to the UAE and Malaysia.
      9. A payslip to the visa applicant.
      10. The visa applicant’s Iranian Birth Certificate.
      11. The visa applicant’s mother’s Iranian Birth Certificate, showing that the visa applicant and the review applicant are her children.
6. The review applicant provided the following information in the visa application:
   1. The review applicant is the visa applicant’s brother.
   2. He is an Australian citizen.
   100. He has been employed as an operations manager at Shannon Group Services for four months.
   4. He enclosed copies of the following documents with the application:
      1. Certificate of Registration for AUS Industrial Services Pty Ltd.
      2. Australian Business Register entry for AUS Industrial Services Pty Ltd, in the review applicant’s name.
      3. His bank account statement showing a closing balance of $132,313.98 as at 30 June 2017.
7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the presence of her siblings in Iran did not demonstrate that the visa applicant has a genuine intent to visit Australia; the visa applicant did not provide evidence that she has been granted leave by her employer; and she owns properties but these are easily transferable assets. The delegate gave limited weight to the visa applicant’s evidence of other international travel. The delegate noted the visa applicant’s family’s immigration history in Australia and that the visa applicant may also seek to remain in Australia beyond the validity of her visa.

Written Submission to the Tribunal

8. The applicant’s Agent provided a written submission to the Tribunal on 16 October 2018. The following is a summary of the information in the submission:
   1. The applicants’ mother has visited Australia on two occasions, in December 2012 and in January 2018.
   2. The visa applicant has been given a leave of absence from her employer for two months, between December 2018 and February 2019.
   100. The visa applicant also has a second, part-time job, with the Ministry of Education working with research students.
   4. She has rented out her own home and lives with her mother who she looks after.
   5. The visa applicant is involved in competitive badminton in Iran.
   6. The visa applicant will not be seeking to apply for any other visa while in Australia.
   7. The following document copies were attached:
      1. The visa applicant’s updated bank account statements.
      2. A letter from the Ministry of Agriculture confirming that the visa applicant has been granted a leave of absence from 15 December 2018 to 8 February 2019.
      3. A Part-Time Employment Certificate issued by the Ministry of Education, dated 22 September 2018 stating the visa applicant is working at the Sadra Student Research Center, two days a week, from 4 to 6pm.
      4. A Sports Activity Certification from the Sports and Youth General Office, dated 27 September 2018, stating that the visa applicant is a regular sports participant in the Boroujen Badminton Association.

Tribunal Hearing

9. The review applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
10. The following is a summary of the information provided by the review applicant:
    1. His sister is Muslim and has no problems in Iran. He has visited her in Iran and she has a comfortable life there. She works as an agricultural engineer. She also works at a research organisation in the Ministry of Education.
    2. They have a close family. he would like his other family members to visit him in Australia in the future.
    100. He is willing to lodge a security bond for his sister’s visit. It will cause him financial hardship if he loses the bond as he has a mortgage and also plans to buy a new home.
    4. The visa applicant loves her siblings in Iran and their children. She lives with their mother in Iran. The visa applicant needs to be there so their mother is not alone.
    5. The visa applicant has no problems with religion or with the government in Iran. She is a practicing Muslim.
    6. She does not have the personality for the challenge of starting a new life in a new country. She does not speak English
11. The following is a summary of the information provided by the review applicant:

12. The following is a summary of the information provided by the visa applicant at the hearing:
    1. She wants to see her brother and sister-in-law and have a holiday in Australia.
    2. She will return to Iran because she is very close to her family there. She wants to be with her mother. She is close to her nieces and nephews. Her brother’s and sister’s homes are nearby.
    100. She is happy with her life. She is single and lives with her mother. In the afternoons she is free to enjoy going to the sports club. She also teaches at a research organisation.
    4. She has expertise in agriculture and she enjoys her work. She has a good position. She likes living and working in Iran. It is where she studied. She wants to use what she learned for the people of her country.

CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.
14. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother and his family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.
15. 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)).
16. The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.
17. 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.
18. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the visa applicant has personal savings and has sufficient funds to support herself during a short visit to Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.
19. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.
20. Condition 8503 refers to entitlement and is not a condition that involves compliance.
21. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).
22. The Tribunal accepts that the visa applicant is a single woman from Boroujen in Iran. The Tribunal accepts the visa applicant’s mother, two other siblings, and their children also reside in Boroujen. The Tribunal considers that the presence of the visa applicant’s mother and other close family represent significant incentive for her to return to Iran after a short stay in Australia.
23. The Tribunal accepts that the visa applicant has stable, valued, and highly respected employment with two government ministries in Iran. The Tribunal considers the visa applicant would be very motivated to return to such work in Iran.
24. The Tribunal notes that the applicants’ mother previously travelled to Australia on two occasions and she complied with her visa conditions according to the evidence before the Tribunal.
25. The Tribunal notes the review applicant’s wish to sponsor other family members to visit Australia in the future. The Tribunal considers this further motivation for him to ensure the visa applicant does not breach any of her visa conditions and that she departs Australia before the expiry of her visa.
26. The Tribunal notes the applicants’ information that the visa applicant’s situation is different from the review applicant’s situation in Iran, so that she would not wish to remain in Australia.
27. The Tribunal considers that the evidence before it supports the applicants’ contention that the visa applicant wishes to visit Australia for a short time to see her brother, and then return to Iran.
28. 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

29. 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.

Melissa McAdam
Member