1920925 (Migration)

[2021] AATA 4764

1920925 (Migration) [2021] AATA 4764 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920925

MEMBER:Christine Cody

DATE:20 August 2021

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 20 August 2021 at 8:52am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – review applicant’s successful protection claims – parents’ currently valid Visitor visas – COVID-19 pandemic and its effects in Iran – economic disparity – business and property in Iran – intention to comply with conditions of the visa – parents’ past compliance with visa conditions – 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

Summary

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 July 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], aged [age] years, applied for the visa on 25 June 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The [review applicant], aged [age] years, is the sister of the visa applicant. She is an Australian citizen who arrived in Australia on a temporary visa and then claimed protection having regard to her particular circumstances. She is currently residing in [Country 1] with her fiancé as a result of the COVID-19 pandemic.

4. 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. The delegate was not satisfied that this requirement was met.

5. The Tribunal carefully weighed up its concerns that there is a possibility that the review applicant’s parents and brother may be all visiting Australia at the same time. This caused the Tribunal concern having regard to the review applicant’s history of having claimed protection in Australia. Her father’s visitor visa expires on 18 June 2022, and her mother’s visitor visa expires on 25 February 2022. The Tribunal noted the submission of the agent that, given the current COVID-19 pandemic, it is unlikely that, if the Tribunal remits the brother’s visa application, he will be granted a visitor visa before the parents’ visas have expired. While the Tribunal considers that if the grant of a visa to the brother or travel by the brother occurred after the expiry of the parents’ visas, this would provide a further incentive for him to return to Iran, and a lesser incentive to remain in Australia, the Tribunal does acknowledge that he may be granted permission to travel while his parents have current visitor visas.

6. The Tribunal has weighed all of the evidence and has given the review applicant the benefit of the doubt. It has accepted her assertions as to her brother’s genuine intention to comply with the terms of a visitor visa, and it has decided that the matter should be remitted for reconsideration for the reasons set out below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his Australian citizen sister in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

9. 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 evidence is that the visa applicant has never previously been to Australia and thus this consideration is not relevant.

10. 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 600.611(2)):

    ·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.

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

12. Numerous documents and submissions were provided to the Department and the Tribunal as to the circumstances of the applicants and their family members. A summary of the evidence provided to the Department is as follows:

    ·     The review applicant is an Australian citizen aged [age] years. In Australia at the time of application she had been working full-time as a [Occupation 1] earning almost $[amount] per week[1].

    ·     The [visa applicant] resides in Tehran and has been self-employed [since] May 2012. He has a wife, [Ms A], and a [age]-year-old child, [Child B], who will be remaining in Iran. The visa applicant is able to take one month off from his business. It has been a long time since he has seen his sister. His stay will be self-funded; his sister will also contribute.

    ·     Documents provided to the Department relating to the visa applicant include:

    oProperty and income documents showing [number of] properties owned in Tehran by the visa applicant and his wife; translations of Iranian financial status certificates in the names of the visa applicant (USD153,000) and his wife (USD142,000) dated [in] 2019; Iranian 10 year trade licence (2012-2022) for [specified trade] in the visa applicant’s name;

    oIdentity and relationship documents: certificate of Personal Status Registration for the visa applicant showing he is married and has a child, copy of pages from the visa applicant’s passport issued in 2016 and valid [to] 2022.

    ·A letter dated 20 July 2019 from the review applicant to the Department supported the visitor visa application, attested to her brother’s circumstances and undertakes responsibility for ensuring his return at the expiry of the visa.  She confirmed that her brother has no political or religious problems in Iran and is very happy with his job and his family there. She guarantees that he would not stay in Australia for more than one month.

    [1] Copies of payslips provided.

13. There are no non-disclosure certificates on the Department file. A Departmental file note[2] indicates that the visa applicant has previously travelled to [Country 2], [Country 3] and [Country 4]; there is no suggestion of any breach of visa conditions by the visa applicant.

    [2] DF4.

14. Although the review applicant’s letter to the Department stated that she had enclosed the evidence of her birth certificate and her parents’ birth certificates demonstrating their relationship, these were not contained on the Department’s file, although the visa applicant’s birth certificate was provided to the Tribunal. The Department did not suggest that the evidence of relationship was lacking, and the Tribunal accepts, for the purposes of this decision on the basis of the available oral and written evidence, that the applicants are related as claimed.

15. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211, namely that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted:

    ·The delegate found that an invitation letter to the applicant was not sufficient evidence that the applicant intends a genuine visit.

    ·The delegate considered the economic circumstances in Iran compared to Australia, specifically Iran’s weak growth, high unemployment, and continuing devaluation of local currency. The visa applicant has been [self-employed][3]. Little weight was given to business ties as an incentive to return given the ‘comparatively greater economic opportunities’ that might encourage the visa applicant to remain in Australia.

    ·Evidence of personal funds and property ownership in Iran were noted; but assessing the circumstances ‘as a whole’, the delegate was concerned because ‘funds are easily transferred, and properties are easily relinquished’, and so business and commercial circumstances were not considered an incentive to return.

    ·The applicant’s wife and child are to remain in Iran. This ‘may offer some inducement to return’ but did not sufficiently demonstrate an intention of a genuine temporary stay.

    ·Further, it was noted that although there has been previous travel, there has not been any recent overseas travel.

    [3] The delegate’s decision record suggests that he was only self-employed in this area since 2017; however, the application form and Departmental notes both indicate that he was so employed since 2012; the Tribunal considers that the reference to 2017 in the decision record is in error.

    The Tribunal

16. A significant number of photos, documents and submissions were provided to the Tribunal. The Tribunal also held a hearing on 11 August 2021. The review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The review applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

17. The review applicant is currently in [Country 1] because her fiancé, a [Country 1] citizen (whom she met in Queensland), was working there and the intention was that she was going to stay there for about 5 months and then move back to Australia, but then the borders closed as a result of the COVID-19 pandemic and they remained stuck in [Country 1]. It is their intention to return when they can. Currently her fiancé runs a [business], and the review applicant is working in [retail].

18. The visa applicant applied to come for one month, but the review applicant said that he would only stay for less than 2 weeks because of his [business]. He has 5 staff members. As he has his own business in Iran, he would not want to work in breach of visa conditions here, for example, by doing labouring. He will not engage in training or study as he doesn’t need to study anything else in Australia.

    Intention to comply with conditions of the visa

19. The review applicant said that he will not stay longer than permitted by the terms of the visa because he is very devoted to his wife and son. There are only 2 siblings in the family and it is his responsibility to take care of their parents in Iran and their grandparents. The applicants’ parents have recently had surgery and need the visa applicant around to help them. Her mother had surgery [and] after a rest she needs to have further [surgery]. Her father just had surgery [due] to [pain].  Further, he and his wife are very attached to his wife’s mother who spends time with the children every week.

20. The Tribunal noted that the visa applicant has a business and property, and that this is transferrable. The review applicant said that he does not want to sell his business and if he comes to Australia for a few weeks he still has to keep customers so he will have to be connected by internet with his business even while on holiday. He receives rental payments, and the value of the house increases every day; his property is his investment and he will not sell. His child is starting school next year.

21. The visa applicant said that he is a law-abiding person who will comply with the terms of his visa and return to Iran. He knows if he does not do so it will be hard for his sister and for his parents to visit. He has many incentives to return, including his business that he has built up, and his wife and son; he has never travelled alone after the marriage as he is so attached to them. His wife has a job in a [company] and her parents are one of their most significant attachments to Iran.  He only wants to visit then return.

22. Documents were provided in support of a number of the assertions made above.

23. The Tribunal noted that an incentive for her brother to seek to remain is the COVID-19 pandemic and its effects in Iran. The Tribunal referred to a Reuters article which stated that:

    DUBAI, Aug 9 (Reuters) - One person is now dying from COVID-19 every two minutes in Iran, state TV said on Monday, as the Middle East’s worst-hit nation reported a new record daily toll of 588 fatalities.

    With authorities complaining of poor social distancing, state media say hospitals in several cities have run out of beds for new patients. Some social media users have criticised the clerical establishment over slow vaccinations, with only about 4% of the 83 million population fully inoculated[4].

    [4] >

    The review applicant said that she wants to wait until the COVID-19 pandemic is over before her brother comes out here; and she doesn’t believe that he will come without vaccination. He should be eligible for a vaccination in 3 months. Her parents have had their first vaccination and are waiting for their second.

24. The Tribunal put to the review applicant that she has come here, and then claimed protection successfully. Perhaps her brother (and parents) will do the same. The Tribunal noted that Iran has a repressive regime, and her family are not religious.

25. The review applicant told the Tribunal about the circumstances in which she claimed protection. Her ex-husband was in Australia and they met online through Facebook while she was in Iran. She moved to Australia and was a dependent upon his visa; after a short time, he betrayed her with another woman and she was subjected to violence. He threatened her, including that when she when she went back to Iran, he would expose her previous work there [for a religious organisation] in Iran. She thus claimed protection in Australia. She said that [that organisation] was not her religion – she was born Muslim but is not practicing. She went to church in Darwin and if she wanted to choose a religion she would choose Christianity, but she is not religious.  The Tribunal notes that Departmental notes support that the review applicant was granted a protection visa and that she was in fear of violence from her ex-husband.

26. When asked about her family’s religion she said that they are all born Muslims but they are not really practicing Islam. They have not been interested in Christianity. Her brother is not practicing either, and he is not interested in Christianity; he is always too busy with study and work and he has never thought about religion. She and her brother did not like Islam when they were children, for example, she was pressured to wear a scarf and they had to pray to God; however, while she personally found it difficult, he does not, he just doesn’t care about religion and he is not involved with religion.

27. In response to the Tribunal’s concerns that her brother may seek to stay in Australia and claim protection, the review applicant said that her brother has a good life in Iran and although the government is not good, he has family and the business that he has built, and he has not left his wife for a day since they were married and he would not be willing to be separated from his wife and child for any real length of time.

28. The Tribunal noted that it was still concerned that given the pandemic and the regime in Iran, her brother may seek to remain in Australia and claim protection, and then seek to later bring out his wife and child. The review applicant said that she will provide all and any guarantee that is required; her brother will definitely return. Neither her brother nor her parents will ever do anything like claim protection; she promises this, and she would stake her life on it; her brother would never do this. He has never had any political involvement or interest, or problems in Iran. While he doesn’t like the government, this is not a factor that would persuade him to stay as he just gets on with his life in Iran and he takes care of family. The Tribunal expressed concern that he may come to Australia and then change religion and claim protection; she said this is not the case, he is not a religious person, and if he wanted to he could go back and practice Christianity in Iran.

29. She also said that she would give up her passport and citizenship to ensure her brother returns. The Tribunal noted there is no evidence that the government would remove her citizenship as a surety; the Tribunal places no weight on this suggestion.

30. The review applicant said that she is prepared to offer a surety or bond. The Tribunal noted that it is unable to impose a bond, but it can take this offer into account. The Tribunal considers that a bond would be appropriate.

31. The Tribunal remained concerned with the incentives of the visa applicant to seek to remain in Australia. This increased if the applicants’ parents’ visas were still valid if a visa is granted to him. According to Departmental policy[5]:

    Currently, Australia’s borders are currently closed and entry to Australia remains strictly controlled to help prevent the spread of COVID-19. Travel to Australia is only available if you are exempt or you have been granted an individual exemption. The exemptions refer to “immediate family members” of an Australian citizen (and temporary visa holders would have to provide must proof of “immediate family” relationship “such as your marriage certificate, evidence of your de-facto relationship such as shared finances or property, your birth certificate or birth certificate for your children”.

    [5] Covid-19 and the border – travel restrictions and exemptions - Accessed 11.8.2021

32. This does not apply to the visa applicant who is not an immediate family member of the review applicant; he has his own family and she has her own family (namely her fiancé).  Individual exemptions can be granted for reasons of compelling or compassionate circumstances such as “the death or critical illness of a close family member”. The review applicant indicated that her brother was seeking to visit because she will in the future get married and she would like him present, and because she has not seen her brother for 8 years. There was no evidence of any compelling or compassionate reason for the visa applicant to receive an exemption to the travel restrictions.

1. The review applicant submitted, and the Tribunal accepts, that the review applicant would ensure her brother did not seek to remain beyond his permitted stay if this would risk her parents’ ability to visit her in Australia. The Tribunal accepts that these visits are very important for the review applicant. As noted above, the Tribunal may have had a stronger sense of satisfaction that the visa applicant would comply with the terms of his visa and return to Iran if the parents’ visas had expired by the time the visa applicant’s visa is granted[6].

   [6] The Tribunal notes that it has only remitted on one of the criteria and that the rest must be dealt with by the Department; it is not making any finding that he will meet the remaining criteria.

2. However, the Tribunal must consider whether, on the circumstances before it (which would include the possibility that the visa applicant is granted a visa while his parents’ still hold valid visas to be in Australia) the visa applicant satisfies the relevant criteria.

3. The Tribunal has taken into account that after the review applicant’s successful protection claims, the Department considered it appropriate to grant to both of the applicants’ parents very long visitor visas of 3 years each.

4. The applicant’s mother [was] initially granted a 3-month visitor visa on 30 November 2017 and she left before the expiry of her visa [in] March 2018. A further application led to her being granted a 3-year visitor visa on 25 February 2019 which is due to expire 25 February 2022. She has made one visit during this visa; [from] March 2019 [to] February 2020[7]. The review applicant’s father [was] initially granted a 3-month visitor visa on 21 February 2019 and he stayed for 2 months, leaving before the expiry of his visa, [in] May 2019. A further application led to him being granted a 3-year visitor visa on 18 June 2019, which is due to expire 18 June 2022. He has not, however, travelled to Australia while holding this visa[8]. The Tribunal notes that the current COVID-19 pandemic would have prevented them from travelling to Australia since late February/early March 2020.

   [7] Departmental movement records and visa grant provided by the agent.

   [8] Departmental movement records and visa grant provided by the agent.

5. The Tribunal places weight on the grants of these long-term visitor visas to the applicants’ parents, and that they have complied with the terms of their visas (insofar as they have not stayed beyond the time permitted). The Tribunal also places weight on the review applicant’s assertion that her father would not want to stay in Australia, as he has [a] business and because of the presence of his mother (the applicants’ grandmother) in Iran. Her father’s lack of interest in spending a long time in Australia is supported by the minimal visit he has made despite having a significant opportunity to be in Australia.

6. The Tribunal is prepared to accept that his parents’ compliance with the conditions of their visas indicates that they seek to remain living in Iran, and that his parents’ residence in Iran is an additional incentive for the visa applicant to return to Iran. The Tribunal finds that his incentives to return to Iran including his immediate family, his business and properties and his other family members, and his satisfaction with his life in Iran, are greater than the incentives for him to remain in Australia. The Tribunal accepts the assurances by both applicants that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

7. 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

8. 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.

   Christine Cody
   Member