2215430 (Migration)

[2023] AATA 556

2215430 (Migration) [2023] AATA 556 (17 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Alex Hashemi (MARN: 1387731)

CASE NUMBER:  2215430

MEMBER:Peter Papadopoulos

DATE:17 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 17 February 2023 at 4:53pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – university studies in home country – previous compliant family visits – family support during high-risk pregnancy – desire for further family visits – fashion business investment in Iran – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612; r 4.12

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 14 September 2022 to refuse to grant each visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. [Name] (the first named visa applicant […]) and her younger sister [name] (the second named visa applicant) made separate applications for the visa on 4 May 2022. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. Each applicant applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream. [Name] ([the review applicant]) was seeking to sponsor the applicants for these visas.

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:

   600.211
   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:  
   (a)  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; and 
   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and 
   (c)  any other relevant matter.

4. The delegate refused to grant the visas on the basis that the visa applicants did not meet cl 600.211 as the delegate could not be satisfied that each applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant provided a copy of the decision records for each visa applicant to the Tribunal for the purpose of the merits review and requested to combine the applications under cl 4.12(4) of the Regulations.

6. The review applicant appeared before the Tribunal on 14 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from each visa applicant.

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

   CLAIMS AND EVIDENCE

   Visitor visa applications

8. The following documents were provided in support of [the first named visa applicant’s] visitor visa application that was lodged with the Department on 4 May 2022:

   ·     Department form, ‘Application for a Visitor Short Stay Visa’, submitted 4 May 2022 detailing [the first named visa applicant] as the visa applicant and [the second named visa applicant] as her travelling companion.

   ·     Department form 956, ‘Appointment of a registered migration agent, legal practitioner or exempt person’, dated 25 February 2022, which specified that Mr Ali Hashemi (MARN 1387731) had been appointed as [the first named visa applicant’s] registered migration agent.

   ·     Department form 1149, ‘Application for sponsorship for sponsored family visitors’, dated 24 April 2022, which specified that [the review applicant] was sponsoring her sister [the first named visa applicant].

   ·     A copy and translation of [the first named visa applicant’s] Iranian birth certificate specifying that she was born in Tehran, Iran on [date].

   ·     A copy and translation of a letter dated 5 December 2021, from [University 1] specifying that [the first named visa applicant] is a student studying in the [specified] Programme in the field of –[subject named].

   ·     A letter from [the review applicant] dated 12 April 2022.

   ·     A payslip for [Mr A] dated 30 March 2022.

   ·     A copy of the biodata page of [the review applicant’s] Australian passport (reference [number]) issued [in] November 2020 and set to expire [in] November 2030.

   ·     A copy of the biodata page of [the second named visa applicant’s] Iranian passport (reference [number]) issued [in] December 2018 and set to expire [in] December 2023.

9. The following documents were provided in support of [the second named visa applicant’s] visitor visa application that was lodged with the Department on 4 May 2022:

   ·     Department form, ‘Application for a Visitor Short Stay Visa’, submitted 4 May 2022 detailing [the second named visa applicant] as the visa applicant and [the first named visa applicant] as her travelling companion.

   ·     Department form 956, ‘Appointment of a registered migration agent, legal practitioner or exempt person’, dated 25 February 2022, which specified that Mr Ali Hashemi (MARN 1387731) had been appointed as [the second named visa applicant’s] registered migration agent.

   ·     Department form 1149, ‘Application for sponsorship for sponsored family visitors’, dated 24 April 2022, which specified that [the review applicant] was sponsoring her sister [the second named visa applicant].

   ·     A copy and translation of [the second named visa applicant’s] Iranian birth certificate specifying that she was born in Tehran, Iran on [date].

   ·     A copy and translation of a letter dated 15 December 2021, from [University 1] specifying that [the second named visa applicant] was a student of the [specified] Programme in the field of [subject named]

   ·     A letter from [the review applicant] dated 12 April 2022.

   ·     A payslip for [Mr A] dated 30 March 2022.

   ·     A copy of the biodata page of [the review applicant’s] Australian passport (reference [number]) issued [in] November 2020 and set to expire [in] November 2030.

   ·     A copy of the biodata page of [the second named visa applicant’s] Iranian passport (reference [number]) issued [in] December 2018 and set to expire [in] December 2023.

10. In her letters dated 12 April 2022, [the review applicant] stated that:

    ·     she would like her sisters to visit her in Australia for 3 weeks in August 2022 during their summer school holidays.

    ·     she came to Australia on a partner visa. She lives and works with her husband and child who are both Australian citizens. Her parents have visited Australia before and they returned to Iran after their visit.

    ·     her sisters attend university in Iran and are very close to their parents and have a large circle of friends and social ties in Iran.

    ·     her parents had previously travelled to Australia and returned to Iran before their visas expired.

    ·     the reason for her sisters’ visit to Australia was to see her and her daughter to see the review applicant and met the review applicant’s daughter. They have not seen each other for 7-years.

11. On 5 September 2022, the Department was updated in relation to the travel plans for each visa applicant.   Their initial travel plan was to visit for three weeks during the summer school holidays in Iran. However, they sought like to postpone their visit until 17 March 2023 to 7 April 2023 following the birth of [the review applicant’s] second child.

12. On 14 September 2022, the delegate refused to grant each visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    Tribunal application

13. On 1 November 2022, [the review applicant] lodged with the Tribunal an application for review of each of the delegate’s decisions with respect to [the first named visa applicant] and [the second named visa applicant].

    Request for priority

14. On 21 November 2022, the Tribunal received a request for the Tribunal to prioritise its consideration of the review application on the basis that [the review applicant] was pregnant and needed support from her family in Iran.  A letter dated 17 October 2022 from [the review applicant’s] obstetrician, [named], indicated that [the review applicant] had a “high risk pregnancy” and recommended her family overseas come “to provide support during her pregnancy, delivery and postpartum care”. A letter dated 8 November 2022 from [the review applicant’s] psychologist, [named], indicated that [the review applicant] had experienced a range of symptoms associated with severe depression and anxiety which were exacerbated by her separation from her family in Iran due to pandemic-related travel restrictions.

15. On 9 December 2022, the Tribunal agreed to grant priority to the matter.

    Pre-hearing submissions

16. On 6 February 2023, the Tribunal received an email from the representative which attached the following documents:

    ·     The representative’s submissions dated 6 February 2023.

    ·     A Department letter dated 3 June 2014, and subsequent visa grant notice, notifying [the review applicant] of the grant of a Partner (Provisional) (class UF) Partner (Provisional) (subclass 309) visa.

    ·     A Department letter dated 7 March 2016, and subsequent decision record, notifying the [the first named visa applicant] of the decision to refuse an application for a Visitor (class FA) Visitor (Tourist) (subclass 600) visa.

    ·     A Department letter dated 7 March 2016, and subsequent decision record, notifying the [the second named visa applicant] of the decision to refuse an application for a Visitor (class FA) Visitor (Tourist) (subclass 600) visa.

    ·     A copy of a [Country 1] visa permitting [the second named visa applicant’s] entry to [Country 1] between [August] 2018 and [September] 2018 and various entry and exit stamps on selected pages of her passport.

    ·     A Department letter dated 17 November 2015, and subsequent visa grant notice, notifying [Mr A] of the grant of a Visitor (subclass 600) visa.

    ·     A Department letter dated 8 March 2018 notifying [Mr A] of the grant of a Visitor (subclass 600) visa.

    ·     A Department letter dated 17 November 2022 notifying [Ms A] of the grant of a Visitor (subclass 600) visa.

    ·     An electronic ticket passenger itinerary receipt for [Ms A] specifying her flight arrangements and plan to depart Australia [in] March 2023.

    ·     A copy and translation of a letter dated 1 February 2023, from [University 1] specifying that [the second named visa applicant] is a student studying a [course name] and is enrolled in the first trimester of academic school year 2023/2024.

    ·     Information detailing that [the first named visa applicant] and [the second named visa applicant] sought to travel to Australia during the Persian New year holiday for the three week period between 17 March 2023 and 7 April 2023.

17. On [date], [the review applicant] gave birth to her second child, a daughter named [name].

18. The applicant’s representative, in his letter dated 6 February 2023, made the following submissions (in summary):

    ·[The review applicant] is an Australian citizen who migrated to Australia pursuant to the partner migration scheme.

    ·[The first named visa applicant] and [the second named visa applicant] travelled to [Country 1] in 2018 as the holder of [Country 1] visas. They have also travelled to [three specified countries]. They have complied with all visa conditions imposed on them by these countries. The representative suggested that their travel and visa application history is indicative of them being genuine family visitors.

    ·[The review applicant’s] parents have obtained Australian visitor visas to visit their daughter and her family in Australia on multiple occasions. [the first named visa applicant] and [the second named visa applicant] are aware that if they breach any visa conditions, this may have an adverse impact upon any future visa applications made by the review applicant’s parents.  On that basis, [the first named visa applicant] and [the second named visa applicant] would comply as they would not seek to jeapordise their parents’ ability to visit their [daughter] and her children in Australia.

    ·[The review applicant] has been living in Australia for almost nine years and has been unable to have her sisters visit her during that time.

    The hearing

19. The review applicant appeared before the Tribunal on 14 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The review applicant’s representative also attended the hearing.  Where relevant, the oral evidence of the review applicant and the representative’s oral submissions at hearing is discussed in the Tribunal’s findings and reasons below. 

20. Prior to the hearing, the review applicant advised the Tribunal that she wished the Tribunal to take evidence from witnesses, namely [the first named visa applicant] and [the second named visa applicant], during the hearing.  This was confirmed by the review applicant at commencement of the hearing.  The Tribunal made two attempts during the hearing to telephone each witness but they did not answer the Tribunal’s calls. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. [the first named visa applicant] is [an age]-year-old citizen of Iran. [The second named visa applicant] is [an age]-year-old citizen of Iran.  In the present case, they seek a visa for the purpose of visiting [name], the review applicant, who is their sister and an Australian citizen. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

22. In their original visa applications, the applicants requested visitor visas for up to three months, with a planned arrival date of 1 August 2022, and a departure date of 22 August 2022. On 5 September 2022, they amended this request to a planned arrival date of 17 March 2023, and a departure date of 7 April 2023. The basis for this change was the delayed decision by the Department and the review applicant expecting the birth of her second child in [month specified].  At hearing, [the review applicant] gave evidence that she would like her sisters to visit her during the three week period

23. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intend 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.

    600.211(a)

24. In considering whether each 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)).

25. [The first named visa applicant] and [the second named visa applicant] have not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether they each genuinely intend to stay temporarily in Australia for the purpose for which their visa is granted.

    600.211(b)

26. The Tribunal must also consider whether each 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 relevantly as follows (cl 600.612):

    ·     8101 – The holder must not engage in work in Australia.

    ·     8201 – While in Australia, the holder must not engage, for more than three months, in any studies or training.

    ·     8503 – The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

    ·     8531 – The holder must not remain in Australia after end of the period of stay permitted.

27. At hearing, [the review applicant] maintained that she was eager to have her sisters visit her now that her second child had been born.  She explained that she would provide accommodation for her sisters in her five bedroom family home during their visit so they could spend quality time together and provide her sisters with direct contact with their newborn niece during their proposed stay.  She explained that she was no longer working for her previous employer and had not been employed for about a month prior to the hearing.  Persuasive oral evidence was provided by the review applicant in relation to the ongoing support provided by her parents to each of [the first named visa applicant] and [the second named visa applicant].  In addition to that support, [the first named visa applicant] and [the second named visa applicant] received financial reward from their online fashion business – [Business 1] -  which [the first named visa applicant] had established a few years earlier.  [The review applicant] directed the Tribunal to the business’ [social media] page[1] and gave evidence that [the first named visa applicant] would design the clothes and that each of [the first named visa applicant] and [the second named visa applicant] would model them in the photographs on the business’ [social media] page.  It was observed by the Tribunal during the hearing that page has almost [large amount of] followers. The Tribunal accepts that the review applicant will provide accommodation and other support to [the first named visa applicant] and [the second named visa applicant] during their proposed visit and that the family has sufficient financial capacity to fund that visit such that [the first named visa applicant] and [the second named visa applicant] would not work in Australia.  There is no indication before the Tribunal that either visa applicant would seek to work in Australia for another reason. Given the provision of such financial support and accommodation, the Tribunal is satisfied that the visa applicants intend to comply with condition 8101.

    [1]  [Source deleted.]

28. There is no indication before the Tribunal that visa applicants would seek to engage in study or training in Australia. At hearing, [the review applicant] gave persuasive evidence that [the first named visa applicant] had no interest in pursuing studies in Australia as she was focussed upon her fashion business, had already completed an undergraduate degree, was currently completing [further studies] and was admitted to a [higher level course] at her university in Iran.  In relation to [the second named visa applicant], [the review applicant] stressed to the Tribunal that she was still completing her undergraduate degree in Iran and had no intention of pursuing studies or training in Australia. Taking into account this oral evidence, the documentary evidence pertaining to each visa applicant’s tertiary studies in Iran and the fact that the proposed period of stay sought was for a period of up to three months, the Tribunal is satisfied that the visa applicants intend to comply with condition 8201. 

29. Condition 8503 does not, on its face, mandate the visa applicants comply with any particular requirement once their visas have been granted. The condition operates to restrict the grant of a substantive visa, other than a protection visa, to a visa holder while they are onshore.  Furthermore, unless waived, the condition operates to invalidate the onshore lodgment of any visa application other than a protection visa application while an applicant is onshore. Therefore, there is no basis upon which the Tribunal may assess either visa applicant’s compliance with this condition as the condition pertains to a restriction upon the making of a further application by operation of law rather than a requirement to do or refrain from doing an act or thing. 

1. In relation to condition 8531, the review applicant insisted at hearing that she that her sisters would return to Iran prior to the end of the period of stay permitted on their visitor visas.  The review applicant stated that [the first named visa applicant] would return to Iran because she was happy working there in her fashion business, keen to complete her [studies] and would be eager to reunite with her wider family network, boyfriend and circle of friends in Iran after her short visit to Australia.  The review applicant stated that [the second named visa applicant] would return to Iran because she was happy working there in her fashion business and would be keen to resume her undergraduate degree as she could only take a short break from those studies during the Persian new year holiday period.  The Tribunal found the review applicant’s evidence to be persuasive in this regard.  Taking into account these matters, the Tribunal is satisfied that the applicants intend to comply with condition 8531.

   600.211(c)

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

3. The review applicants’ parents have travelled to Australia and departed on a visitor visa previously. The review applicant’s migration history is not adverse and suggestive that if the visa applicants arrived in Australia on a visitor visa, they would seek to remain here permanently. The review applicant came to Australia under the partner migration scheme and was subsequently granted Australian citizenship. The review applicant’s migration history is not suggestive that members of her family face any problems in Iran.

4. The review applicant gave evidence that the visa applicants and her parents had previously visited [Country 1] for a two week holiday in August 2018.  The visa applicants went to [Country 1] to visit their uncle and cousins, went sightseeing and did not overstay their visas.

5. The review applicant gave further evidence that the visa applicants had not experienced any harm in Iran or feared future harm in Iran. This is suggestive of a view that the visa applicants will not come to Australia and refuse to return to Iran.

6. Of particular concern to the Tribunal in the present case was the relative position of women in Iranian society compared to women in Australia along with the social unrest arising out of recent protests in Iran following the death of the 22 year old Iranian woman Mahsa Amini on 16 September 2022. This concern was heightened by the fact that the visa applicants were themselves young Iranian women who were well-educated, entrepreneurial and appeared on social media promoting their fashion business to a large number of followers by posing in images that might be perceived as violating dress codes enforced by Iran’s morality police.  The Tribunal raised this concern with the review applicant and drew her attention to country information indicating that:

   ·women face societal and legislative discrimination and the threat of gender-based violence in Iran

   ·laws restrict women’s rights to choose their clothing in Iran

   ·reports of women protesting the forced hijab have continued in 2002 and recent years, with some women being detained in violent circumstances.[2]

   [2] DHA, Common Claims – Iran, Country of Origin Information Services Section (COISS) Report effective from 25 Nov 2022, pp. 17-19

7. The Tribunal also drew the review applicant’s attention to the following relevant country information provided by the Department of Foreign Affairs and Trade in relation to social media influencers in Iran:

   Social media influencers who post content on Instagram deemed to be critical of the Islamic Republic and/or un-Islamic are the subject of increasing pressure from the authorities. According to the Center for Human Rights in Iran, some popular social media influencers have been asked to close accounts, modify content or adhere to the Islamic dress code in their posts. Others have reportedly been summoned to the Guidance Court, which, according to the judiciary, is responsible for ‘acting against cultural crimes and ethical immoralities’. …. In May and July 2018, several women were detained briefly for posting videos of themselves dancing on their Instagram accounts. Also in July 2018, female fashion workers who had posted images of new female clothing fashions on  social media were arrested and charged with committing ‘indecent acts’ and ‘spreading anti-cultural material’.[3]

   [3] DFAT, Country Information Report - Iran (14 April 2020), para. 3.112

8. The review applicant considered this information and responded by way of acknowledging that while the protests in Iran had occurred and were ongoing, her sisters had never been involved in those protests and had never had difficulties with the Iranian authorities including the morality police.  She also explained that her sisters’ fashion business had a significant online presence that could be readily noticed but had not been closed or otherwise moderated by the Iranian authorities.  The review applicant also distinguished her sisters’ online conduct by stressing that they have never disseminated images online of themselves or other women dancing without wearing a scarf. The Tribunal was persuaded by the review applicant’s response and finds that while there may be a level risk of the visa applicants not returning to Iran, this risk is negligible in the circumstances.  

9. In terms of other evidence which was submitted as demonstrating that the visa applicants genuinely intend to stay temporarily in Australia, the Tribunal is persuaded that the applicants’ online fashion business, ongoing commitment to tertiary level education and social ties with their partners, friends and wider family network in Iran will act as an incentive to return to Iran.  The Tribunal is satisfied that these factors, when coupled with the lack of security concerns that the visa applicants face when returning to Iran, the Tribunal is satisfied that the visa applicants genuinely intend to stay temporarily in Australia.

   Conclusion

10. Having considered all the evidence, the Tribunal finds the review applicant to be a credible witness and accepts her evidence.  

11. The Tribunal is satisfied that it is the intention of the applicants to visit the review applicant in Australia and that they will not remain in Australia after the end of their permitted stay.  The Tribunal is also satisfied that the applicants will comply with their visa conditions.

12. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

13. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Peter Papadopoulos
    Member