1826060 (Migration)

[2018] AATA 5291

1826060 (Migration) [2018] AATA 5291 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826060

MEMBER:Rachel Westaway

DATE:11 October 2018

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets cl.600.211 of Schedule 2 to the Regulations.

Statement made on 11 October 2018 at 6:42pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – Genuine temporary entrant –visiting sister diagnosed with cancer requiring treatment – application granted priority status and expedited – previous unsuccessful application for protection visa – review applicant’s sponsorship history – strong family and cultural ties to Iran – attachment to pets back in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 600.211

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 30 August 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act) in the sponsored family stream.

2. The visa applicant applied for the visa on 7 August 2018.

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. 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 her visit to Australia was with the genuine intention to stay temporarily. The delegate noted that the visa applicant had travelled to Australia in 2007 and 2010 and has complied with conditions, however expressed concerns regarding her unsuccessful application for a protection visa in May.

5. The review applicant appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the [visa applicant] who is also the review applicant’s sister and [Ms A], the review applicant’s youngest daughter.

6. 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 the present case is whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

9. The [review applicant] requested that her case be expedited by the Tribunal due to her diagnosis of [cancer] and impeding operation.

10. She supplied a letter from her treating local doctor dated 5 July 2018 stating she is undergoing treatment for [specified type of] cancer and needs family assistance. A patient assessment was supplied that outlined the applicant suffers from anxiety and mood issues. It also states she has a supportive family in Australia. She also supplied a referral to [a named specialist]. The review was granted priority status and expedited.

11. On 1 October 2018 the review applicant emailed the Tribunal with a further submission addressing the reasons why her sister’s visa application was refused. She stated that her sister has been divorced for decades; she accepts she has no children but has [pets] which depend on her. She works casually [in Occupation 1] but is predominantly a housewife.

12. She said her sister owns her house and the funds were ones placed in an investment account which earns better interest and deposited at intervals into her bank account for her to live on. She has an investment manager who takes the funds and invests them on her behalf.

13. She could not support her sister if she stayed longer, her sister has no desire to stay permanently in Australia, she has other family members who have made many trips and not breached conditions. Iran’s situation has remained problematic and her sister has lived through this and has no issues which would require her to claim protection. She said her children cannot be there for her all of the time.

14. She explained that the application for a protection visas lodged on 19 May 2011 for a subclass XB 202 is a permanent visa. It was applied for in different circumstances and has no relevance now.

15. The Global Special Humanitarian visa (subclass 202) is for people outside of Australia who are living outside their home​​e country, are subject to substantial discrimination amounting to a gross violation of their human rights in their home country, and are proposed by a person or organisation in Australia.

16. She explained that her care requirements are so great that her husband could not leave her and therefore missed the chance to visit his own father before he passed away. She stated that she desperately needs her sister.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. In the present case, the visa applicant who is a [age] year old Iranian female seeks the visa for the purposes of visiting her sister who is has been diagnosed with [cancer] which has spread through her [body]. She requires surgery and chemotherapy. The visa applicant and review applicant stated that the intention for [the visa applicant] is to stay for up to two months and live with her sister and her brother in law and their daughter. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

19. 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)).

    Background

20. [The review applicant] went to Iran last year. She intended to stay for two months but extended it to three months. She stated that she visits every few years because she is close to her siblings. She explained and also provided a list of siblings who she has sponsored to come to Australia on visitor visas.

21. The Tribunal explained to the applicant why the visa was refused and then asked [the review applicant] about her sister’s application for a protection visa. She stated that her sister is involved in meditation and in 2011 learnt that some of her fellow friends who meditate with her were arrested and placed in prison and she was scared she would be punished as well. She and some of her meditation friends went to [Country 1] and applied for an offshore protection visa which was rejected. She therefore had no choice but to return to Iran and she used her connections of friends in government to protect her. She received a fine and she had to write and sign a declaration that she would no longer be involved in these activities and her family gave a bond. She explained that she thought the philosophy she followed was something called Eckar but she was not certain and she was not aware of her sister practicing it anymore.

22. She also confirmed that her sister has been divorced for [number] years. She explained that she worked as [Occupation 2] and her home was paid for by inheritance and she saved money from her previous work as [Occupation 2].

23. She confirmed that she would like her sister to come for 2-3 months to assist her. She would live with the family. [The review applicant] explained that her children work too.

24. She said her sister has been living peacefully in Iran since 2011 and has not left the country.

25. She confirmed that another sister has come twice since 2011 to visit her. She said that no family member has broken a condition on their visa and referred to her submission which outlined that four family members have been sponsored by her to visit Australia between 2005 and 2016 and have never breached a condition on their visas.

26. The applicant stated that should the Department require a bond then they would be happy to do this.

27. The visa applicant explained her sister has cared for [pets] for 15 years and is very passionate about them, so much so that when she went to [Country 1] she took her [pet] with her as she could not leave it behind. Even in [Country 1] she took her [pet] with her.

28. She currently has four [pets]. They all belong to her. She favours no particular breed of [pet]. She said that her sister had arranged for their other sister who lives in the same apartment to look after the [pets] if she comes to Australia.

29. She said that given she has no children her favourite [pet] is [Pet 1] and she is very attached to him.  He is [specified colour].

30. She said that she needs her sister for moral support. She confirmed her eldest daughter lives at home but the youngest daughter came to the hearing.

31. The Tribunal asked how the visa applicant would support herself in Australia and the review applicant explained she would bring money from Iran and the family would support her.

32. She also stated that her sister is a qualified [Occupation 2] and [Occupation 1] who has retired recently. She said that she works from home but did not know how many clients she had.

33. The visa applicant became quite emotional and explained that she has recently been diagnosed with [cancer] and wants moral support and it is a difficult time. She said that she is struggling to cope. She said she speaks to her sister every day and she suffers anxiety and this helps her. She said that she is close to all siblings but this sister has a similar outlook on life. She explained that she believes in God and positivity and hope.

34. She confirmed that she and her sister are not representative of an ethnic minority nor are they particularly religious. She said that her sister has no desire to remain in Australia permanently.

35. She is an Australian citizen and her diagnosis is stressful on the family and it is hard to comfort someone outside. She said that every day she must deal with this. She said that she has two daughters and they are educated young women and good. She said that she could not encourage someone to unlawfully stay in Australia or support them in deceiving the government when she has acted properly all of her life and sets this as an example for her daughters, She said that she has lived in Australia for 34 years and has never broken a law or been in trouble. She stated that she has sponsored family members and she does not want to destroy her family’s perfect history at her age and in her situation and ruin visits for other family members.  She said that she would never deceive the government and has taught her children to respect the law. She said it is a principle thing and she is honest. She said that even as an employee, she has never done anything wrong.

36. The Tribunal took evidence from [Ms A], the review applicant’s youngest daughter.

37. She confirmed that she is the niece of the visa applicant and daughter of the review applicant. She stated that she last saw her aunt in December 2013 when she was in Iran. Her aunty was living in the same apartment block as she is now. She described it as a comfortable existence. She said that everything is fully available to her including medical support and she has her [pets].  She is settled.

38. She stated that she speaks to her aunt once a month or once every two months. She said that her mother speaks to her sister, the visa applicant daily. She said that she needs this for moral support however prior to her mother’s diagnosis they would speak weekly but not daily.  

39. She said that her mother is close to all of her siblings but this one more so because they are on the same spiritual journey and her mother values her spiritual and personal guidance. She said that that are not religious but recognises God.

40. She confirmed that her aunt would be living with the family to mostly provide moral support and assist with daily activities because the family are quite stretched.  .

41. She said her sister is employed full time and works at [Organisation 1] and rotates between teams and working on [significant matters]. When she was asked to explain further she stated that her sister is working on [Country 1] at present. She undertook a degree in [Discipline 1] at [University 1] and completed [Honours].

42. She confirmed that was a full time student studying her PhD on [specified topic] at [University 2] but she has suspended it to care for her mother and has taken a year or two off. She is living at home with her parents now.

43. She said that her aunt is almost [age] years of age and would not want to remain in Australia at that age. The adjustment would be hard and she is comfortable and content surrounded by people in Iran and sees no benefit in beginning a new life. She has developed a strong bond with her animals she cares for two [pets] and rehabilitates stray [animals] and she sees this as a responsibility which she would not leave because there is an issue with animals who aren’t treated well in Iran. She said that her aunt has all of her family in Iran and they all support her but if she was to stay in Australia no one would be in a position to support her and she only has her sister who is sick.  She would not get the same enjoyment or satisfaction from her Iranian family and she wouldn’t want to risk jeopardising her mum’s ability to sponsor other family members to come to Australia. She said that it would be a massive effort for little reward and they would not risk future family visits.

44. [Ms A] explained her mother’s cancer is treatable and the responses to treatment are favourable. However her concerns are that the recovery post operation is very dependent on her anxiety. She said that there is a risk of undergoing such long surgery and her mother is anxious about the unknown. Also, she is anxious about what they might find and the extent of the surgery. She stated that the medical outcome is favourable and the main concerns are moral support.

45. She explained that recurrence is common and that 75% of patients find it has returned in 2 years. She explained that therefore it is very important to reduce her anxiety because it will limit its effect on the reoccurrence.

46. The Tribunal then took oral evidence via telephone from the visa applicant in Iran with the assistance of an interpreter.

47. She confirmed her full name and explained that her sister is anxious and has been diagnosed with cancer and she would like to assist her and care for her. She stated that she would like to go for two to three months.

48. She confirmed she has been to Australia on two occasions before. She said that she came in 2007 and 2010 and returned home following this.  She never broke any conditions nor did she overstay her visa.

49. The reasons why the visa was refused were explained to the visa applicant. Her application for protection was explained and she stated this is no longer the case. The Tribunals asked her why and she stated that she has a comfortable life and friends and previous problems because of her beliefs have been resolved. She explained that the issue has been resolved Her friends in government assisted her and she paid a fine and her family out up a bond and she signed a declaration not to be involved in her meditation group.

50. The Tribunal asked for further information about why she applied for protection. She explained that if someone has a different belief then people can be persecuted and some friends in [Country 1] were and she was fearful she would face problems too.

51. She explained that the case has been resolved. She said that they asked her for an undertaking and that was the end of the problem and it has been resolved. She stated that it has no longer become important for her. She had to stop meeting and reading and going to websites. She said it is called Ackankar and originated from the USA. They have recently built a temple near her home a few years She said that she still believes in this philosophy however it is more related to her inner being. She was asked if she fears harm should she practice more openly. She stated it is an entirely an interpretation of how one practices it and she can and it has nothing to do with the traditions of this country.

52. She confirmed that she has two [pets] and a further two stray [ones]. Her [pets] are called [Pet 1] and [Pet 2]. [Pet 1] is [specified colour]. Her sister will take care of her [pets] if she comes to Australia. She reiterated that she intends to come for a period of a few months for the duration of her treatment and as long as she gets better and until she is mentally stronger.

53. She confirmed that her trip will be funded by herself and her sister will support her financially during her trip. Her house will be looked after by her sister.

54. She stated that she gets money for her day to day living expenses from savings and an accountant invests her savings and she is a [Occupation 2] and [Occupation 1] from home.

55. She was asked why her work from home was not detailed in the visa application. She stated that working from home is a common practice and her friends and family all work together and they don’t advertise. She said it is more like a hobbyist. She was again asked and stated that she didn’t see it as serious ongoing work.  She said that she would see 3-4 clients a week and it is fun and she makes a little money. She said a few years back she had her own [shop] but she retired.

56. She explained that she is use to life in Iran after 40 years and she reflects on her inner being and that makes her happy. She said that this and her friends and [pets] and home and her activities and her siblings are all in Iran. She said this is what will make her return home.

57. She explained that her sister suffers anxiety and if she is with her she will be calmer and it will be easier. She said that she speaks to her throughout the night because she struggles to sleep and she can try and help her.

58. 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):

59. 8101 – must not work in Australia

60. 8201 – must not engage in study or training in Australia for more than 3 months

61. 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

62. 8531 – must not remain in Australia after end of permitted stay.

63. The Tribunal has considered the evidence before it and concludes that the applicant is [age] years of age. She owns her own apartment, volunteers and is passionate about animals and their welfare and in particular her [pets] and those she saves.  She has a small amount of income from using her skills as [Occupation 2] and [Occupation 1] from home. However she claims this is more like a hobby as she has 3-4 clients a week and has retired from her fulltime [occupation]. The evidence put forward to the Tribunal indicates that she has previously travelled to Australia on two occasions. She has some investments and has regular deposits from these investments placed into her account live off. She received inheritance from her parents and has savings from her former business and a small amount of money from a few clients per week who come to her house.

1. The review applicant has supplied extensive information to support her serious illness and the visa applicant’s dates for planned travel coincide with this. The Tribunal is satisfied that the visa applicant is not coming to Australia to work and that she would comply with condition 8101. Similarly the Tribunal considers it highly unlikely that she would come to Australia to study on a long term basis given her age and the fact that she is retired and has a skill which could be used anywhere and does not require further study.

2. The Tribunal notes that the applicant has travelled to Australia previously and has not attempted to remain here or file applications for a substantive visa while in Australia. In addition to this, her three other siblings remain in Iran as well as the existence of her home and [pets]. Whilst much weight can be given to dependent family members and the need to return to them, in the instance of a person who has no children, the lack of evidence here should not be prohibitive when other close family relationships exist. These are all strong reasons for the applicant to return to Iran.

3. The Tribunal also notes that the review applicant presented as a genuine woman who is law abiding and from a close knit family. Her siblings have also been sponsored by her at different times in order to visit Australia. As the review applicant stated, the risk of adverse credibility around a breach of a condition by her sister would not be something she would support. Furthermore, given the review applicant’s anxiety and medical condition the Tribunal accepts that this would increase her anxiety at a time when she could not cope.

4. The delegate stated that the applicant had a failed application for protection which was made in [Country 1].  However the applicant has explained this and the Tribunal notes that this was made offshore and the applicant returned back to Iran when she claims she is content and has now has no concerns. The Tribunal also notes that the applicant had previously been to Australia on two occasions prior to lodging this claim. The applicant could well have come to Australia on another visitor visa and applied onshore. Furthermore she could have applied for a subclass 457 or as a student and set up a business as [Occupation 2]. She did none of these things but rather applied offshore and returned when the visa was unsuccessful. On balance, the Tribunal considers that the sponsor’s current illness and her sister’s ties to Iran are reasonable reasons to visit and compelling reasons to return to Iran.

5. The Tribunal has also had regard to country information about the conditions relating to Iran and those particularly relevant to the applicant. 

6. The Iran Country Report – Department of Foreign Affairs and Trade (DFAT), 2018 states that in the past two decades they have seen fierce rivalry and continuing tension between those advocating reforms to the country’s political, economic and foreign policy directions, and those committed to the conservative ideals of the Islamic Republic.

7. DFAT assesses that frustration over the state of the economy was a key driver of the December 2017-January 2018 protests; and that poor economic opportunities act as a significant ‘push factor’ for emigration from Iran.

8. By regional standards, Iran is reasonably progressive in relation to women’s rights. The Constitution highlights the contribution made by women to the success of the Islamic Revolution and commits the government to ensuring the rights of women in all respects, in conformity with Islamic criteria. Women enjoy considerable legal protections in many areas, including personal safety, participation in the workforce, and mandatory schooling for girls. Although not a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (1981) or its Optional Protocol (2000), Iran has committed itself to the Sustainable Development Goals of the 2030 Agenda for Sustainable Development, including Goal Five on achieving gender equality and empowering women and girls.

9. Approximately 98 per cent of Iranians are Muslim – 90 per cent Shi’a, and 8 per cent Sunni. Iran is a theocracy that, with the possible exception of The Holy See, mixes religion and state more completely than any other country in the world. Article 4 of the Constitution requires that all of the country’s laws and regulations be based on (Shi’a) Islamic principles. 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. The Ministry of Culture and Islamic Guidance, and the Ministry of Intelligence and Security (MOIS) monitor religious activity. The IRGC also monitors churches.

10. DFAT assesses that members of recognised religions face a low risk of official discrimination. While they enjoy the benefits of official recognition, the structure of the Islamic Republic inevitably favours the Shi’a Muslim majority to the exclusion of others. The risk of societal discrimination, including violence, is low, but may be heightened at times when external factors come into play. Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house churches’. DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment.

11. During the Tribunal’s review of country information it has not been able to identify any cause for concern that might be relevant to the visa applicant. She confirmed that she is very happy in Iran and her issue in 2011 have past and are not an issue.  She is Iranian and is used to the way the country is run and her life fits in with this. She stated that it has no impact on her spirituality and the philosophy she follows. The visa applicant stated that she meditates and is part of a smaller group of people who do this privately, the Tribunal likens this to a house church and the applicant states that she has no concerns about her safety. 

12. 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.

13. Given the circumstances, any efforts the Department of Home Affairs may make in expediting this case would be appreciated. The applicant’s surgery is booked for 13 October 2018.

    DECISION

    Rachel Westaway
    Senior Member