1706312 (Migration)

[2017] AATA 2741

1706312 (Migration) [2017] AATA 2741 (1 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706312

DIBP REFERENCE(S):  BCC2017/638264

MEMBER:Angela Cranston

DATE:1 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 01 December 2017 at 12:32pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Wishes to visit son – Personal and financial ties in Iran – Family members in Iran – Not a genuine temporary entrant – Incentive to stay with only son in Australia

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 Schedule 2 cls 600.211, 600.211(a)-(c), 600.612, 600.231

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 22 March 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 visa applicant applied for the visa on 16 February 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa 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.

4.    In her application, the applicant stated she wanted to come to Australia for up to 3 months, was born in [date], was a housewife and supported financially by her husband and sponsor in Australia,  lived in Tehran, had a spouse and daughter born in [date] who would remain in Iran.

5. 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.

6.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 for the following reasons:

The applicant indicated that she is leaving her spouse and one child aged [age] years in Iran during the proposed visit. While I acknowledge that the applicant’s family may provide some incentive to return, the presence of these family members are not sufficient to demonstrate that the applicant intends a genuine temporary stay in Australia and will depart within the validity of her visa due to concerns raised by the applicant’s absence of previous international travel.

In response the employment question the applicant declared other and advise that she is a housewife. Therefore I cannot consider employment as a factor that will induce the applicant to return to Iran within the validity of her visa.

The applicant has provided no evidence of any other significant ties around that would induce her to return home within the validity of her visa. Therefore I give no weight to asset ownership, business ties or cultural ties as evidence of the applicant intends a genuine temporary stay in Australia and cannot consider these ties as factors that will induce the applicant to depart Australia within the validity of their visa.

In addition I am conscious of the applicant’s family links in Australia including the circumstance surrounding their arrival and ongoing residence and noting her limited family ties to Iran, I am not satisfied that there is significant incentive for the applicant to depart Australia at the expiry of any visitor visa that might be granted.

7.    The review applicant applied for review and provided the following:

I am the sponsor in this review application for the Tribunal

I felt relevant to give this statement in support of my mother application for visitor visa and me sponsoring her. I think it is relevant because of the manner in which I came to Australia in 2011 and stayed in Australia.

I came to Australia in 2011 with my [wife] on a [temporary] visa. [Sentence deleted].

[Paragraph deleted].

My mother is the manager of our family home in Iran. My father and my little sister, student cannot manage their affairs without my mum.

My mother application for visiting us here in Australia is, beyond question because of a very close bond between me and her. She misses us, me mostly, and we, me mostly, miss her deeply. She is unable to travel out of Iran during school terms both because of my sister and my dad, and also other commitments she has towards our neighbours’ children, she is responsible to take them to school every day.

When she applied this year to come to Australia was about Iranian new year during which schools are closed for two weeks. The same applies here. She can only come by the Iranian New Year, March 2018.

Finally I want to say that my wife and I have never sponsored anyone before, including relatives closer otherwise since our arrival in Australia. I only hope my sincere statement of truth would be helpful to the Honourable tribunal to satisfy itself of the genuineness of my mother’s application for the purpose of visiting me and my wife here in Australia.

8.    The review applicant appeared before the Tribunal on 30 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

9.    The review applicant was represented in relation to the review by his registered migration agent.

1. The review applicant stated he thought the reason the department had rejected the applicant’s application was because of what the review applicant had done but he stated his reasons for remaining in Australia had nothing to do with the applicant. The Tribunal put to the review applicant that the department also said the applicant was leaving her spouse and daughter back in Iran but were satisfied they would provide enough incentive to return. He stated the applicant’s husband and daughter were extremely good reasons for her to return. He also stated her parents who were in their 80s and she took care of them and communicated with them every day.

2. [Paragraph deleted].

3. The review applicant stated the applicant was in [a certain age bracket] and there was no reason for her to leave Iran where she had been living together with her husband there for 30 years. He stated she lead a fairly normal life in Iran and was not religious or political and was happy.  She also did not speak English and there was no reason for her to want to stay in Australia.

4. The Tribunal put to the review applicant that the Department of Foreign Affairs and Trade (DFAT) had stated that Iran was facing a difficult economic situation due to a combination of past economic mismanagement and international sanctions. He stated his father had his own business which was an import/export company and he travelled to China and Dubai and they did not have financial hardships and did not want for anything. The Tribunal also put to him that DFAT had stated that Iran’s Constitution provided for equal rights for women however a number of legal provisions discriminated against them including the penal and civil code’s provisions about property, family law and rules of evidence and that conservative attitudes could prevent women from exercising free choice in employment. He stated that was true but people themselves could believe in different things and his father was progressive at home. He stated the applicant had friends who she could go out with. The Tribunal also put to him that the Iranian Constitution provided for freedom of speech, political opinion and religion however in practice these freedoms were significantly curtailed. He agreed but stated it did not affect his family because they were not into politics or religion and lead a normal life.

5. The Tribunal then spoke to the applicant. She stated she would return to Iran because she had a [age]-year-old daughter who went to school, as well as her husband and family who she was responsible for and she also worked transporting children to and from school. She also stated she had her parents who were [elderly] and even though she had siblings, her relationship with her parents was very close. She also stated the only reason she wanted to come to Australia was to visit the review applicant and she had no reasons to stay.

6. The adviser stated that the review applicant was young but the applicant was older. He stated she had financial assets and was well off. He also said she and her husband were not politically or religiously minded.

Country Information

According to the Department of Foreign Affairs and Trade Report Iran 21 April 2016:

Economy
Iran faces a difficult economic situation, due to a combination of past economic mismanagement and international sanctions. The economy has been hit in recent years by high inflation, the high cost of Government subsidies, significant currency depreciation and an increase in the cost of food and imported goods. Business costs also rose due to devaluation and sanctions. The Rouhani Government reduced inflation from around 40 to 15 per cent at the end of 2014 through tighter monetary and fiscal policies. Following weak growth in 2015 because of the drop in oil prices and the on-going effects of sanctions, Iran’s economy is projected to resume growth of approximately 4-5 per cent per annum over 2016-17. GDP per capita was US$17,800 (PPP) in 2015.

Human Rights Framework
The Iranian Constitution provides for freedom of speech, political opinion and religion, within certain limits. In practice, however, these freedoms are significantly curtailed.
Women
Iran’s Constitution provides for equal rights for women. However, a number of legal provisions - including those in the penal and civil codes that deal with property, family law, and rules of evidence - discriminate against women. In recent years, the government has introduced some positive measures to improve women’s economic participation (such as establishing a foundation so support women entrepreneurs, cooperatives to alleviate poverty and self-employment loans and grants to women). Women exercise the right to vote in high numbers. Women’s affairs advisers have been appointed to all ministries and governmental organisations.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant, her son. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

3. 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)).

4. 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.

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

6. The applicant is a [age] year old married Iranian woman who states that her husband and dependent child will remain in Iran and that her life and savings are in Iran. She has also stated that she has gained employment transferring children to school.

7. The Tribunal accepts that the applicant has personal, property, employment and financial ties to Iran. However, given that the applicant's employment is recent, and given that savings could be easily withdrawn and property sold, the Tribunal is not satisfied that these provide a strong incentive for the applicant to return to Iran, especially given DFAT's assessment of Iran’s overall economic, human rights and political situation which in the Tribunal’s view, and despite the review applicant’s claims to the contrary, continue to act as a reason why the applicant would migrate from Iran. Although the Tribunal accepts that the applicant has family ties in Iran in that her husband and school aged daughter and parents and siblings are there, the applicant also has a very strong personal tie to Australia in that the review applicant, her only son, is here.

8. Although the review applicant stated at hearing that [details deleted], the Tribunal remains concerned that the review applicant's presence in Australia may act as an incentive for the applicant to remain in Australia after any approved stay. In reaching this conclusion, the Tribunal is not satisfied that the applicant's ties in Iran are such that they will encourage her to return after any approved stay in Australia especially if the applicant were to, like the review applicant, seek to successfully change her status onshore and subsequently sponsor her husband and school aged daughter.

9. Equally, the Tribunal is not satisfied that the applicant would be compelled to return to Iran on account of her personal, employment, financial or property ties even if a bond were requested.

10. The Tribunal has had regard to all of the relevant matters and, on the evidence currently before it, is not satisfied that the 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 not met.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Angela Cranston
Member