2308946 (Migration)

[2024] AATA 4228

2308946 (Migration) [2024] AATA 4228 (18 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Mehdi Soodi (MARN: 2016060)

CASE NUMBER:  2308946

MEMBER:Anne Grant

DATE:18 September 2024

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 the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 18 September 2024 at 11:51am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – conditions for women in Iran – husband and balance of family in Iran – financial resources – compliant visits to other countries – decision under review remitted        

LEGISLATION

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 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 June 2023 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 27 May 2023. 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 because they were not satisfied that the visa applicant genuinely intended to stay temporarily in Australia.  

5. The review applicant appeared before the Tribunal on 13 September 2024 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 indicated that the visa applicant did not participate in the hearing due to telecommunication difficulties, and confirmed that the Tribunal had received written submissions (including a letter from the visa applicant) prior to the hearing date. 

6. The review applicant was represented in relation to the review, and the representative attended the hearing.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

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

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

11. The visa applicant has not ever held an Australian visa or travelled to Australia; and so no weight can be given to a past history of compliance with visas in Australia.  However, the review applicant gave evidence that the visa applicant has travelled to [specified countries] and has always complied with any visas, and returned to Iran at the end of her holidays. The review applicant described how he has met up with his mother on these holidays as he does not wish to return to Iran.  He explained that on every occasion, the visa applicant returned to Iran after those visits/that visit and complied with the conditions of any visas.  I accept this evidence. 

12. The review applicant arrived in Australia as a refugee in 2012. There is nothing in the information given to the tribunal on the Departmental file which suggests that he has failed to comply with the conditions of any visas he has held.  He is an Australian citizen. 

13. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):

    ·8101 – must not work in Australia

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

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

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

14. The visa applicant does not work in Iran and is aged [age]. The information before me suggests that she will be supported by her son, will stay with him during her visit and will have no need to work or study.  The sponsor has provided evidence which establishes that he is financially secure and capable of fully supporting his mother during a visit.  The visa applicant has written to the Tribunal stating that she will comply with the conditions of the visa and will return to her husband and life in Iran after visiting the sponsor.  She adds that “I’m also an older woman with no reason or desire to start a new life elsewhere. I love my country, my home, and my life in Iran, and I am looking forward to returning after my trip.”   Given the visa applicant’s age, background, and relationship with the sponsor,  I accept these submissions and give them some weight as indicating that the visa applicant intends to comply with the conditions to which the visa would be subject, including departing Australia at the end of a permitted stay. 

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

16. The delegate identified the visa applicant as a person with a profile similar to persons who overstay their visa, or apply for protection once in Australia. The country information for Iran paints a bleak picture for women.  According to the most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report for Iran, compulsory hijab is prescribed by law and ‘bad hijab’ is actively monitored and prosecuted.  Iran is reported and is readily observed as a country which responds harshly to protests, handing out disproportionate sentences of imprisonment for disobeying or denouncing compulsory hijab or any law which applies to restrict the freedom of women.

17. In 2022, protests following the death of a 22-year-old Mahsa Amini whilst in the custody of the ‘morality police’ sparked extensive protests.  The protests were brutally resisted by the Iranian regime and many hundreds of protesters, including women and children, were killed by the security forces and some protesters have been sentenced to execution for their role in the protests, with thousands arrested.  

18. According to general country information, men exert considerable control over women in marriage, and can legally prevent them from leaving the country without their husband’s permission, or from working.  DFAT also notes that:

    2.144Women in Iran have diverse experiences and an assessment of discrimination and violence depends on the individual circumstances of each woman. DFAT assesses most Iranian women face moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.

19. At hearing the review applicant agreed with a summary of the above country information, and said he could understand why I might have reservations about his mother returning voluntarily to Iran.  He stated that she is from a different generation than those protesting, and is not a younger woman opposed to being required to wear Hijab or to the Iranian regime.  She has lived her whole life in Iran, and is well settled there with her family and a comfortable lifestyle.

20. The review applicant gave evidence that his mother has no interest in political protests and chooses to wear the Hijab because of her own religious beliefs.  She is the most religious person in their family and has always been conservative in that way. He said that, for example, she wears full Islamic dress even when outside Iran, on holidays.  She chooses not to wear it in the home, and the sponsor stated that his father does not have any influence or interest in that decision, because he has never tried to tell her what to do or wear. 

21. The visa applicant’s husband is retired on a full civil service pension and they have been married for more than 40 years.  Her bank account, travel and passport details suggest that, contrary to the position as reported for some women in Iran, she has access to her own savings, and has freedom of movement both within and outside Iran. 

22. The review applicant said that his mother would never leave his father there to live in Australia.  She also has [grandchildren] and another son in Iran and they see each other often.  They often eat together and his mother helps if needed with her grandchildren.  His father is healthy and does not require any day-to-day care.  She also has [siblings] in Iran with their families. The review applicant said that his mother does not want or intend to leave all her family to stay in Australia.

23. The review applicant had provided evidence of various bank accounts depicting substantial deposits in both the visa applicant and her husband’s name.  It was observed that the balance of those accounts appeared substantial (with one in the review applicant’s father’s name having a balance of more than 2 billion Rial - around $93,000 AUD).  It was noted that the bank statement describes this as around $9,000 AUD rather than the substantial equivalent balance, and the applicant and representative explained that there are limits on converting Iranian currency so that is the maximum that could be converted, rather than the actual balance, at the time of making the bank statement.  The applicant’s representative noted that that the money in the bank accounts is substantial, and would be sufficient to purchase an apartment in Tehran, for example.   The review applicant confirmed that his parents are financially comfortable in Iran.  His father has a civil service pension entitlement for life. 

24. The review applicant confirmed that his mother has her own bank account and savings which she can use for whatever she wants.  Money for that account is from transfers from his brother and his father. The visa applicant provided a bank statement showing a balance of 709 million rial – equivalent to $24,876AUD [in] April 2023.) The review applicant stated that she uses it for gifts for her family, for her own personal needs as she wishes and to meet some expenses when she travels. 

25. The review applicant was a refugee after being involved in political protests as a young man.  In answer to questions about whether his own activism had ever caused his parents to come under the scrutiny of the regime, he gave evidence that it had not.  His parents have not been politically active.  I accept this evidence.

26. The review applicant gave evidence that his mother has no reason to fear harm in Iran.  As discussed above, he stated that she is not someone who is involved in political protests and has never come to the attention of the authorities for any reason.  She has no reason to fear harm or persecution in Iran, has a comfortable life there with her family and her friends, and does not wish to leave the country permanently.  He also notes that she wants to return to her husband after a short visit to Australia.

27. The visa applicant has travelled outside Iran on at least four occasions and returned to Iran at the end of holidays to [specified countries].  This suggests that she has freedom of movement and can depart Iran with no official restrictions, and that she has no profile of interest to the Iranian government.  I accept that the visa applicant is financially supported by her husband, and that she also has access to savings of her own during her travels.  I accept that the family is comfortable in Iran, with no financial hardship.  Usually, I would give little weight to bank balances as an ‘inducement’ for a person to return to their home country, because such money is available for an applicant to withdraw and transfer overseas.  However the limits on such accessibility in Iran does mean that the visa applicant might have some difficulty in accessing her bank balances over the long term if she remained in Australia.  In any event, I accept that the visa applicant has no financial incentive to stay outside of Iran, such as debts, poverty, or economic hardship of any kind.

28. The sponsor stated that he would be willing to provide a security deposit if required by the department to demonstrate how sure he is that his mother would return to Iran at the end of her visa period.  I give this some weight.

29. I have had regard to the required and other relevant matters.  I consider that in the particular circumstances of the case, the incentives for the visa applicant to remain in Australia beyond the term of a visa are exceeded by the incentives for her to return to Iran.  I give her family in Iran, including another son and grandchildren, her husband and extended family such as [siblings] to be strong incentives for her to return.   Further, I observe that there is nothing in her circumstances which suggests that she at risk of harm for any reason in Iran, or that, at [age], she would have any interest in establishing a new life in a country like Australia where she would face language difficulties and be separated from her husband and Iranian family members.  Noting her age and her established and comfortable life in Iran, even allowing for external difficulties such as protests, and the oppressive regime, I accept and find that the visa applicant does genuinely intend to visit Australia temporarily to spend time with her son and his family, and then return to Iran. 

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.

    Anne Grant
    Member