1815093 (Migration)

[2020] AATA 3179

1815093 (Migration) [2020] AATA 3179 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815093

MEMBER:Jane Marquard

DATE:24 June 2020

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 24 June 2020 at 10:48am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – purpose and duration of the visit – family members with health issues – incentives to return to country of origin – substantial family responsibilities in Iran – character of the applicants – provision of surety – history of visa compliance – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 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 Department of Home Affairs (Department) on 26 March 2018 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 is [an age]-year-old woman from Iran, and the review applicant is her daughter, who was granted a Subclass 866 Protection Visa in 2011. The visa applicant also has [other children] in Australia.

3. The visa applicant applied for the visa on 1 March 2018. 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, taking into account that [number of children] reside in Australia.

6. The review applicant and visa applicant appeared before the Tribunal by telephone conference on 17 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

10. 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)). The visa applicant has not travelled previously to Australia such that this consideration is not relevant.

11. 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.

12. The Tribunal is satisfied that the visa applicant would not work or study in Australia as she does not speak English and is [age] years old. The question of whether she intends to comply with the other conditions is discussed below alongside the issue of whether the applicant genuinely intends to stay temporarily for the purpose for which the visa is granted. Although the Tribunal had some concerns about the matter, after consideration of the evidence, the Tribunal is satisfied that the applicant intends to comply with the conditions to which the visa would be subject, and that she genuinely intends to stay temporarily for the purpose for which the visa is granted. The reasons for these findings, taking into account other relevant matters (cl.600.211(c)), are set out below.

13. Firstly, the Tribunal has taken into consideration the purpose and duration of the visit. Initially the visa applicant wanted to visit Australia for the birth of her grandchild, as she had been unable to visit for her daughter’s earlier pregnancy. Her daughter suffers from [specified conditions] and the visa applicant wanted to assist her during and after the birth of her child.  The time period requested was three months. The review applicant in a letter to the Department said that (at the time) she was 34 weeks pregnant and suffered from [specified conditions]. She said that she had [children of specified ages]. She said that she needed help as she had to take the children to school and perform all the household tasks. She said that she needed her mother emotionally and to help with her responsibilities for a few months. She said that [number] years prior she had given birth without her mother and suffered hardship. A letter from [her regional] Health Service in March 2018 indicated that the review applicant was in 34 weeks gestation. The doctor suggested it would be useful to have her mother visit as she had had complications in pregnancy, and depression.

14. A submission to the Tribunal was made by [Daughter A], another daughter of the visa applicant. She said that her mother had not seen her children and grandchildren for a long time, and they all really wanted to see her. Her mother had missed the birth of her [other specified grandchildren]. At the Tribunal hearing, the visa applicant was asked about the purpose of the visit at the current time. She said that she wanted to visit her children and grandchildren as she has not seen them for the last ten years. The review applicant said that they had waited two years for this Tribunal hearing and wanted the Tribunal to ‘hear their heartache’. The review applicant stated that they just want their mother to visit once and they would ‘promise on the life of their children’ that she will return. They want their mother to spend time with the grandchildren and see how they live. In particular, they would like their mother to spend time with a [grandchild] who has [a medical condition]. They want their mother to communicate with this [grandchild]. The review applicant said her father did not have the opportunity to experience their lives and they do not want their mother to miss out. 

15. The Tribunal is satisfied on the basis of the evidence of the applicants that the intention of the visa applicant - to visit [her children] and grandchildren, and to assist her [child] and [grandchild] who have health problems, is a genuine intention, and that the time frame requested accords with a temporary visit for this purpose.

16. Secondly, the Tribunal has taken into consideration incentives to return to Iran at the end of her stay. The Tribunal had a number of concerns in this regard, which were discussed with the applicants at hearing. Of particular significance is the fact that the visa applicant has [number of children] in Australia, which would appear to be a significant incentive to stay permanently in Australia. Furthermore, the review applicant came to Australia [in] May 2011 as an Irregular Maritime Arrival. She was granted a protection visa [in] November 2011. Her [sister], [Daughter A], also travelled to Australia [in] December 2010 and was granted a protection visa [in] July 2011 as was [Daughter A’s] husband. Her sister, [Daughter B] also travelled to Australia as an Irregular Maritime Arrival and was granted a Humanitarian Stay (Temporary) visa [in] May 2013 and a Safe Haven Enterprise visa [in] July 2017. [Daughter B]’s husband was granted a Humanitarian Stay (temporary) visa [in] May 2013 and a Safe Haven Enterprise visa [in] July 2017. Additionally, the visa applicant’s [other children] applied for permanent visas in Australia. [One of them, Child C], applied for a Global Special Humanitarian visa which was refused [in] October 2019. [Another child, Child D], applied for a Global Special Humanitarian visa, which was refused [in] June 2019.

17. Considering the fact that [number of children] live in Australia and [number] have been granted protection visas, and her [other children] had sought visas for Australia, the visa applicant was asked why she would not apply for protection or seek to stay permanently in Australia. Country sources do indicate that there are a number of economic, political, social and religious issues in Iran which may act as a disincentive to return. Unemployment is causing economic difficulty and social unrest[1], even prior to the COVID-19 pandemic. There is also religious and gender-based discrimination in Iran. In practice, government policy and legislation heavily favours the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and religious minorities.[2] . Conversion from Islam is not permitted in Iran and converts can be charged and prosecuted with national security offences. The Iranian Penal Code specifies the death sentence for proselytizing by religious minority groups. People who are not recognised as belonging to a religious minority may not engage in public religious expression, such as worshipping or wearing religious symbols[3]. The Constitution provides for equal rights but the law discriminates against women in matters of property, family law, and rules of evidence.[4]

    [1] Department of Foreign Affairs and Trade, Country Information Report: Iran, 7 June 2018, p.8; Department of Foreign Affairs and Trade, Country Information Report: Iran, 7 June 2018, pp.19-20; Department of Home Affairs, Thematic Report Iran, Country of Origin Information Service, 10 June 2020

    [4] Department of Immigration and Border Protection, Iran Country Snapshot, 14 October 2016

18. The visa applicant responded to the Tribunal’s concerns that she may seek to live permanently in Australia in the same way that her [children] did, by stating that Iran is her country and she does not want to live in Australia. She said that she only seeks to visit her children or grandchildren. The review applicant elaborated on this. She said that her mother has spent most of her life in Iran, which has its own culture and language. Other people who have brought their parents to Australia have seen their parents deteriorate because of lack of familiarity. The review applicant said that her mother is unsophisticated and simple and would not be able to find friends or go out anywhere without language or culture. She said that other than the [specified children], she has no attachments in Australia. In Iran she has a routine that every Thursday she goes to the graves of her father and [sibling]. She wants to look after them always and would not want to break this. She said that her ‘real life’ is in Iran.

19. She said that the [children] in Australia have their own lives and all they want is for her to travel every now and then to visit them. Furthermore, the reasons for applying for protection do not apply to their mother. Each one of her family had a different reason to seek protection. The review applicant did not have peace and security in Iran. She was married at a young age, (13 years old) to a relative and separated and she was not ‘recognised as a woman’. Her former husband harassed her for political reasons, because of a brother who was killed during the unrest in the university. Her [sister] was married to a friend of her [family] who ran away during the political unrest and was therefore persecuted. [Another sibling’s spouse] was involved in political activity in Iran when the protests were taking place. The Tribunal accepts their submissions, (although the Tribunal does not have full details of their protection visa applications) that these circumstances do not apply to the visa applicant. The Tribunal is satisfied that the visa applicant would not seek to breach visa conditions in Australia because this would prevent further visits, and when considering the other factors set out below.

20. The visa applicant is widowed and her [number of children] live in Australia. However there are a number of incentives for her to return to Iran. She cares for her own mother and her granddaughter who is the daughter of her [child] who passed away. She also has a [sibling] in Iran who has children. Her granddaughter lives with her. Her two [other siblings] live in in [Country 1] and [number of her children] live in [Country 2] and it is probably easier to see them from Iran, than it is from Australia, given the distance.

21. The review applicant submitted that in addition to the presence of her mother, granddaughter and other family, culture and language as well as her Islamic religion, comprise strong incentives for her mother to return to Iran. She said that she has her own life there and she would not want to ‘exile’ her mother in Australia.

22. [Daughter A] gave evidence to the Tribunal that the visa applicant has her own home in Tehran and a monthly income, which means that she could only visit for a short time in Australia as she has commitments in Iran. Documents were provided to evidence the visa applicant’s employment commitments in Iran (pay slips evidencing a salary of [amount] IRR (approximately $ AUD 4000) from a ‘social welfare organisation’. She was asked about her income in Iran at the Tribunal hearing. She said that she does not work. [Daughter A] explained that her mother does not work but she gets a pension payment for people below a certain income (a government subsidy). She also gets a cost of living subsidy. Property documents indicated that she had purchased an apartment in [Town 1] in 2007. She was asked about this at the Tribunal hearing. She said that she owns her home. The review applicant explained that she is not highly educated and this was why she was giving simple answers at the Tribunal hearing.  A deposit statement from 2018 showed that she had a balance of 96 520 542 Rials and also an amount equivalent to USD $5411 in [Bank 1] in 2018. These were updated to the Tribunal. A certificate from [Bank 2] indicated a balance of 129,737,249 Rials (approximately AUD $ 28 399) as at 1 June 2020. A bank statement from 1 March 2020 from [Bank 3] indicated a balance of 3,146.674 Rials. She provided a copy of a Short-Term Deposit Statement form dated 31 May 2020 indicating that she had an amount of 254,732,230 Iranian Rials in her bank account with [Bank 1]. She also provided a Financial Status Certificate from [Bank 3] with a balance of 270 056 Iranian Rials. These are not significant sums; however the Tribunal accepts that she has an income from pensions and lives in her own house.

23. The Tribunal accepts the evidence that the presence of the visa applicant’s mother, granddaughter (who she looks after), [a sibling] and other family members in Iran, as well as her husband and [child’s] graves, and the local language, culture and community constitute significant incentives for this particular applicant to return to Iran, notwithstanding the fact that her [children] live in Australia.

24. Thirdly, the Tribunal has taken into consideration the character of the applicants. There is no evidence of non-compliance of visas by any of the parties. The review applicant is looking after her young child and the review applicant’s husband, [named] is [an occupation 1]. A tax return was provided for his [occupation 1] company. [Daughter A] also provided employment documents from a [business] to evidence her regular income. Her partner is an [Occupation 2] and they have a child. Their niece is studying [Discipline 1] and works in a [related field]. The [sister] stays home to look after a young child and her husband works in [Industry 1]. The review applicant said that they had previously sponsored a relative from [Country 1] who had complied with his visa conditions. She made submissions that they would always comply with the law and wanted her mother to be able to visit again. The Tribunal accepts their evidence that they are law-abiding individuals and understand the consequences of a breach of visa conditions.

25. Fourthly, the review applicant indicated that the Australian family would be prepared to provide a surety to the Department to guarantee their mother’s return at the end of the visit. Their willingness to provide a surety does suggest that they are certain that she will comply with her visa conditions.

26. Finally, the visa applicant has travelled to visit her [children] in [Country 2] and returned at the end of her visit, indicating that she did comply with visa conditions on that occasion notwithstanding her [children] were living in [Country 2].

27. For the above reasons, considered cumulatively, and particularly the visa applicant’s connection to Iran because of age, culture, language and community, the presence of extended family, her mother and the granddaughter she cares for in Iran, and the character and assurances of the review applicant, 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

28. 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.

    Jane Marquard
    Member