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Tribunal: Member Susan Trotter

The visa applicant wanted to come to Australia to visit his two sons, his daughter-in-law, his sister-in-law and her children. He was an Iranian citizen by birth but he had been living in Oman, as a non-citizen, for approximately 40 years where he owned and operated a business. He was also an Overseas Citizen of India where he lived for many years until finishing university. He had been to Australia three times previously, most recently in 2009.

A condition of the type of Visitor visa applied for was that the applicant genuinely intends to only stay in Australia temporarily.[1] A delegate of the Minister of Immigration and Border Protection was not satisfied that this was the case and refused the visa.

One of the visa applicant’s sons that lived in Australia applied to the AAT for a review of this decision.

The visa applicant claimed that he genuinely intended to visit his family in Australia and go back to Oman. He said he owned and operated a business there with nine employees and he had his visa renewed every two years. He said that when he decided to close his business and stop working his visa in Oman would be cancelled and he would go to India to live. He also said that if he wanted to remain in Australia he could have easily applied for a permanent visa and that would have been much easier for him. He said he had visited Australia three times before and never overstayed his visa.

The AAT was concerned that the visa applicant’s personal circumstances were significant incentives for him to remain in Australia and they had changed quite a lot since his last visit to Australia in 2009. At that time, only one of his sons lived in Australia and now two of his three children lived in Australia. He could not return to Iran because of his religious views (he was of the Baha’i faith) and despite holding status as a registered overseas citizen of India and ownership of property in India, he had not lived there for over 40 years and no members of his immediate family lived there.

The AAT was also concerned that the visa applicant was approaching retirement age. At the time of the decision he was 65, an age when retirement plans might usually be considered, even if not yet acted upon. This was of particular concern to the AAT because of inconsistencies between the evidence given by the visa applicant and his son in relation to the retirement plans. This was significant because of the visa applicant’s unique circumstances in that he had no right of residency in Oman upon retirement.

Taking all the matters into account, the AAT concluded that the visa applicant’s incentives to remain in Australia outweighed his incentives to depart Australia.

The AAT was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia and affirmed the decision not to grant the visa, which means the decision was not changed.  

Read the full written decision on AustLII.



[1] Clause 600.211 of Schedule 2 to the Migration Regulations 1994