1911086 (Migration)

[2021] AATA 3364

1911086 (Migration) [2021] AATA 3364 (15 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911086

MEMBER:Rosa Gagliardi

DATE:15 July 2021

PLACE OF DECISION:  Australian Capital Territory

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 15 July 2021 at 11:34am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – sponsored family stream – solid financial connection to Iran – good international travel history –genuine intention to stay temporarily – strong incentives to depart Australia –family and work commitment in home country –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 Minister for Home Affairs on 5 April 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 3 March 2019. 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.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

5. The review applicant/sponsor appeared by telephone before the Tribunal on 9 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant in Iran.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

    Background

11. The sponsor stated at hearing that initially she had simply applied for the applicant, her sister, to attend her wedding but given the refusal she had no family member attend, and this had been a source of great sadness.  Furthermore, the applicant had provided extensive evidence to demonstrate that the applicant had strong connections to Iran and would not be motivated to breach her visa conditions.  The wedding had occurred but it was of importance to the sponsor to invite a family members to Australia as she envisaged having her own family and wanted the possibility of inviting her parents and siblings to Australia on a regular basis.  The sponsor at hearing stated that she was well aware of the consequences if her sister were to breach her visa conditions – that no other family member from Iran would be permitted to travel to Australia.  Something the sponsor stated she could not entertain.

12. The applicant is a Shia Muslim and has two boys aged [age] and [age] respectively.  She is living in Mashad with her husband and family.  Mashad is the second-most-populous city in Iran and the capital of Razavi Khorasan Province. It is located in the northeast of the country and is one of the most religious cities in Iran.[1]   The applicant stated that she is not from a minority background and is an observant Shia Muslim.

    cl.600.211(a)

    [1]

13. 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.  The applicant declared at hearing that, consistent with her financial means, she had travelled extensively.  The places she had visited included, Thailand, China, Turkey, and Cyprus.  She had also been to Saudi Arabia on a religious pilgrimage.

14. The Tribunal understands that the applicant’s eldest son is studying [a major] in [Country 1] and that the applicant and her husband have purchased a property there.  Apart from [Country 1], however, the Tribunal notes that the applicant does not appear to have close relatives in the other countries visited, unlike in Australia where she has her sister.  Notwithstanding, the Tribunal does place weight in the applicant’s favour in terms of her past pattern of travel because it demonstrates that she is mobile and has the financial capacity to engage in recreational travel, even if not to countries similar to Australia in terms of their socio-economic standards.

    cl.600.211(b)

15. 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:

    ·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.

16. The applicant is of working age and similarly could study in Australia.  Nonetheless, the Tribunal is persuaded by the applicant’s financial circumstances in Iran, that she does not have an intention to travel to Australia to engage in work or study.  The applicant has submitted probative evidence of the property she and her husband own in [Country 1]. 

17. Evidence has also been submitted indicating the applicant’s husband owns a [company] in Mashad and that he holds a [licence].  Evidence demonstrates that as at 6 February 2021, the company of which the applicant’s husband is a Managing Director, has a capital worth of 41,000,000,000 Iranian Rial, which is roughly the equivalent of 444,800 AUD.  The Tribunal is satisfied that relative to the standard of living in Iran, the company represents a significant asset.  At hearing it was stated that the company employs over 350 employees, a matter the Tribunal is prepared to accept.

18. The applicant has submitted evidence that she also works part-time in her husband’s company and has provided corroborative evidence by way of a pay slip showing that as at 21 March 2021, she earned 10,500,000 Iranian Rial per month, the equivalent of approximately 3,337.46 AUD, which is, relative to the average household income in Iran, a solid monthly salary.  At hearing the applicant realistically stated that she could not entrust her work to others for more than three weeks and was not prepared to be away from her husband and the business for a lengthier period.

19. Evidence also demonstrates that the applicant is working for [an employer] for a couple of days a [week].

20. Other evidence demonstrates that the applicant and her husband hold shares in Iran.

21. In addition to the convincing evidence submitted demonstrating a solid financial connection to Iran, the Tribunal has had regard to the applicant’s emphasis that she could not be away from her [age] year old child for more than three weeks, and that her mother would need to take care of him, together with her husband in her absence which was a source of some anxiety.  Importantly, her older son is studying in [Country 1] and she wanted to be closer to him also.

22. The Tribunal was also persuaded that the applicant has strong affective ties in Iran, being her parents whom she cares for, as well as her elderly grandmother who lives close by and requires care.

23. The Tribunal is persuaded by the evidence that the applicant’s affective and business ties to Iran are strong and that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

24. This application may have raised doubts about whether the applicant has a genuine intention to stay in Australia temporarily because of how the sponsor became an Australian permanent resident.  As the sponsor has explained in her statement:

    I and my ex-husband came to Australia in 2008 with student visa.  After three years due to his personal issues he decided to apply for the protection visa.  He was the main applicant and I was only his dependent.  We separated in 2014 and divorced in 2016 due to family violence.  Because of my post separation mental health problems, I have travelled to Iran three times after my separation and I didn’t have any issue as I was separated and his issues was irrelated (sic) to me.

    Moreover, since my ex-husband had applied for his protection, he invited his immediate family (his parents, his sister, his uncle, his cousins) in many occasions and his family were successful to get a visitor visa and they had travelled to Australia many times.

25. The sponsor explained that her ex-husband had political issues in Iran and had also converted to Christianity - as had she.  The Tribunal queried the sponsor as to whether she was a practising Christian and whether she might take the applicant to any congregation where the applicant might become exposed to Christian values and ideals.  The Tribunal accepts the sponsor’s statement at hearing that she did not practise with others and would not expose her sister, who adhered strictly to the Islamic faith, to Christianity.  The sponsor’s family were not even aware that she had converted, and she was not desirous that they should do so.

26. The sponsor clearly feels disadvantaged in that she was not the main applicant for the protection visa and converted at her ex-husband’s behest, and yet he has been able to sponsor his family to Australia.  No two cases in terms of whether the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily, are the same.  Each case is assessed individually and on its merits.  Nonetheless, there does appear to be some incongruity in the treatment of the sponsor’s ex-husband and the sponsor.

27. The Tribunal was also convinced that the sponsor did not have any intention of getting the applicant to change her faith to gain a migration outcome because it appears that as she put it, her conversion “had ruined her life”.  The woman who had introduced Christianity to the sponsor and her ex-husband had had an affair with her ex-husband and this had partially led to the breakdown of her marriage.

28. The Tribunal is satisfied that the applicant’s connections to her home country, material and otherwise, are such that the applicant does not have any need to come to Australia to change her religion to apply for protection to stay in Australia, whether genuinely or for disingenuous purposes.  

    cl.600.211(c)

29. The Tribunal accepts that the sponsor is prepared to secure the visit with payment of a bond and places some weight on this matter in the applicant’s favour.

    Conclusion

30. 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

31. 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.

    Rosa Gagliardi
    Member

    
    
    

Razavi Khorasan (Iran): Counties & Cities – Population Statistics in Maps and Charts, accessed on
14 July 2021.