2436722 (MIGRATION) - [2024] ARTA 938

2436722 (MIGRATION) [2024] ARTA 938 (16 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2436722

Tribunal:General Member W Banfield
Place:Canberra
Date: 16 December 2024
Decision:The decision under review is affirmed

Statement made on 16 December 2024 at 3:09pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant offering critical care to father – family and business commitments in home country – property interests in Iran – compliant visits to other countries – economic conditions in Iran – persecuted ethnic Ahwazi minority – offer of a security bond – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 269
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611, 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 REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2024 to refuse to grant the visa applicants Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 4 September 2024. 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 applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.
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 applicants to satisfy the Minister that the visa applicants genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The delegate refused to grant the visas on the basis that the visa applicants did not meet cl 600.211 because they were not satisfied the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.
The review applicant appeared before the Tribunal on 26 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Visa Applicant 1] and from her father [Father A]. 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.
Prior to the hearing, the following evidence was submitted in support of the application for review:
·     Department of Home Affairs (the Department) notification and decision record dated 25 September 2024.
·     Iranian certificate labelled as a birth certificate (untranslated).
·     Copy of [Visa Applicant 1’s] Iranian passport indicating past travel to [Country 1] and [Country 2].
·     Copy of the Iranian passport biometric information of [Visa Applicant 2].
·     Copy of Iranian document with English translation labelled ‘Birth Certificate’ in the name of [Father A variant] and listing his spouse and children.
·     Iranian document with English translation identified as ‘National Organisation of Deeds and Properties Registration’, ‘Ownership Title’ listing [Visa Applicant 1] and details of a property.
·     Photographs labelled as [Father A] and [Visa Applicant 1].
·     Medical evidence from [Health Service 1] detailing the diagnosis and treatment of [Father A].
·     Letters from [Health Service 1] [Specialist A] regarding [Father A’s] [surgery].
·     [Bank] statement in the name of [the review applicant].
·     Evidence of employment and payslips in the name of [the review applicant].
·     Statutory declaration of [the review applicant] dated 24 October 2024.
·     Statutory declarations of [Father A], [Person A], [Relative A], [Relative B] and [Relative C]’ dated 22 November 2024.
·     Photographs of [Father A] during hospitalisation.
·     Employment contract from ‘[Agency 1]’ in the name of [Person A] dated 1 December 2023.
·     Letter of offer of employment from ‘[Employer 1]’ in the name of [Person A] dated 17 October 2024.
·     Letter of support from ‘[Agency 1]’ dated 5 October 2024.
·     Letter from [Agency 2] dated 11 November 2024 stating [Relative B] is employed as [an occupation 1].
·     Offer letter from [University 1] to ‘[Relative A]’.
·     Iranian Certificate of Enrolment with English translation confirming [Relative D] is enrolled in [Grade] of [school].
·     Representative’s submission dated 25 November 2024.
·     Certification from [Bank 1] dated 2 September 2023 in the name of [Visa Applicant 1].
·     Copy Iranian Marriage Certificate with English translation for [Visa Applicant 1] and spouse dated [in] September 2012.
The Tribunal hearing.
Evidence of the sponsor
The sponsor confirmed the primary visa applicant (the visa applicant) is his sister and she wants to travel to Australia to visit their father who has undergone surgery. She wants to provide him with critical care that his [specialist] team says he needs for up to eight weeks. Regarding his current care, the sponsor said no one is doing it because all family members are either studying or working.
The sponsor has parents and [specified siblings] in Australia and one sister, the visa applicant and her children who live in Iran. The family in Australia migrated and have permanent visas. The sponsor confirmed he and his father have met the visa applicant and one of her [children] in [Country 2]. The Tribunal accepted the reason for the visit is a purpose for which the visa may be granted. The Tribunal explained it would be considering whether the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.
The sponsor confirmed the information in his statutory declaration that his family came to Australia by boat in 2013. He and his siblings except for the oldest were minors. The Tribunal inquired why the visa applicant had not come with them. It was explained that at the time, the visa applicant was engaged and about to be married. The sponsor said they came to Australia because the family are Sunni Ahwazi and they fled persecution. The visa applicant still lives in the same area, and she is married with [number children] who attend school. She is not employed but her spouse has a [business].
The Tribunal asked if the visa applicant faces any civil or political issues herself. The sponsor said he did not think so because she has visited [Country 2] and returned. He also said: “she just wants the best for her [children], and for them to grow up having their family around them, especially her husband’s family”. As to why her situation is different, the sponsor said in 2013 his father converted to Sunni Islam and came to Australia, and the family followed but the visa applicant was not involved in the sect. She got married and wanted to stay in Iran so she could not come.
The Tribunal asked, since the family are Ahwazi Arabs who faced persecution from the Iranian government, the visa applicant may have a case for protection in Australia. The sponsor said he was a minor when his father came to Australia as a Sunni Ahwazi. He said his sister lives a comfortable life without any threats or persecution and she did not change sect and is still Shia. The Tribunal put to the sponsor that his sister may want to reunite with her family permanently. He said there is no way because when they were in [Country 2] she just wanted to return to her [children] and husband. He said she would not leave her family. The Tribunal noted that if the visa applicant applied for protection, her family could possibly join her. The sponsor said it would not happen because when she was in [Country 2], her husband looked after their other child which was hard as he has a business, and he wanted the visa applicant to return. It was submitted the visa applicant needs to be there as her [child] goes to school.
The sponsor said there are numerous relatives on his mother and father’s side still living in Iran, and the visa applicant has her husband’s family. In Australia, they only have [two specified relatives]. The Tribunal asked if the sponsor knows whether the situation has improved in Iran for people of his family’s ethnicity. He said all he knows is his sister never changed her sect and remains a Shia Muslim, the dominant religion in Iran, while the family in Australia are Sunni. He said he does not know about the situation in Iran, but he does know about his sister’s circumstances; she is in a loving relationship, they have a business, and she has never mentioned anything political or claims related. He said he knows his sister will not stay as her husband and [child] are in Iran, she just wants to see their father for eight weeks of care and they will pay any bond.
The Tribunal asked about alternate care arrangements for their father if the visa applicant cannot visit Australia. The sponsor said they have no other arrangements as they have put everything into the application also there is care that only a daughter can provide. According to the sponsor, the family live together in Melbourne except for one sister who is in Sydney. The Tribunal asked about reasons for the visa applicant to return to Iran other than her husband and [child]. He said she owns her own home and does not have to pay rent, and she has her entire family there. He said when it is Eid, the family in Australia have only themselves while the visa applicant has in laws, uncles, and aunties. The sponsor explained the visa applicant’s husband cared for their [child] while she visited [Country 2] but also her in-laws took [the child] to school and [provided other assistance]. He said they do not have that in Australia. The Tribunal noted the evidence indicates there are people in Iran who would care for one [child] if the visa applicant stayed in Australia with the other. The sponsor said family in Iran would look after the [child] for a short time but not for a long period or indefinitely.
The Tribunal explained the visa conditions to the sponsor, and accepted she does not plan to work. Regarding the length of time of a proposed visit, the sponsor said he has applied for three months but is sure she will return after eight weeks. The sponsor stated he has taken compassionate leave for the day, but otherwise the family are trying to look after their father as best they can. He said there is a monitor that connects to the hospital as well, but they are worried about infection. The sponsor explained the expected recovery process over time for his father.
The sponsor said he is happy with any condition that would be imposed on the visa and will pay any bond because they just want their sister to visit her father and look after him for eight weeks. The Tribunal advised it had not decided the case but noted in general that establishing a compliant visa history is certainly beneficial. The sponsor submitted the visa applicant complied with conditions when visiting [Country 1] and [Country 2] and returned to Iran.
It was noted the Department delegate refused the visa due to the economic, political and security situation in Iran. The Tribunal said it was a concern that the sponsor’s family came to Australia for protection and according to country information, people of their ethnicity, Ahwazi Arabs, are persecuted in Iran which remains an incentive for applying for protection. The sponsor claimed his family were persecuted as Ahwazi Arabs who were Sunni and there are many Ahwazi Arabs in Iran who are Shia, and they are ok. He said the visa applicant has not told them about any issues, she and her husband and his family are Shia, and she has been able to leave the country freely. As to why the family converted to Sunni Islam, the sponsor said his father visited Saudi Arabia many times and believed Sunni is correct according to the Prophet. He said the visa applicant has not experienced persecution, and there are no issues between the family due to religion.
The sponsor said he is supporting his family and he and his mother cannot stop working. The visa applicant supports her husband’s business and is raising her [children] in Iran. He said she just wants to visit her father and return. Regarding the visa applicant’s [children], [one] child can travel because [they are] only in [grade] while the older one is in [a higher grade], and they do not want to disrupt [their] education.
After the Tribunal spoke to the visa applicant, the sponsor reiterated he is doing his best but said there is only so much leave he can take, his sister travelled overseas and returned, and he had done all he can regarding the visa application. The sponsor confirmed he would be prepared to pay a security bond.
Evidence of the visa applicant
The visa applicant confirmed she wants to come to Australia because her father had an operation, and he is alone because her family are working. She said she wants to visit for one month. She wants to bring one of her children as there is no one to look after her because it is too difficult for the father to look after [all the children]. The visa applicant stated she is not employed but her husband has a business. She declared she owns a house under her name. The visa applicant stated she follows Shia Islam.
The Tribunal asked why the visa applicant’s family came to Australia. She said her parents were forced to go but at the time she was “a small child” and has no more information except that things were bad. She was asked why she did not go with them. The visa applicant said she had married; she loved her husband and could not leave him. She has met with her father twice since he left in [Country 2]. She denied either she or her husband have religious or political issues in Iran. She was asked if she has faced difficulties because of her ethnicity and she replied “no” and stated her husband has not either. The visa applicant said her incentive to return to Iran is her husband and [child].
The Tribunal asked if the visa applicant if there is any reason why she would apply for protection in Australia. She answered “no”. The Tribunal put to her that people of her ethnicity are considered a persecuted group in Iran. She again replied no and said it has never happened. The Tribunal referred to the conditions that would be attached to the visitor visa and the visa applicant said she is aware because her brother told her. She said she just wants to be able to care for her father.
Evidence of the witness - [Father A]
The visa applicant’s father requested that his daughter be able to come to Australia. He claimed he would never let her stay here.
Representative’s submission
The representative referred the Tribunal to the written submissions provided. She stated the visa applicant’s visit is consistent with a temporary stay and would be for up to three months. It was claimed the medical evidence supports [Father A] requiring care that cannot be provided by the family and the trip is in connection with that. The Tribunal was informed [Father A] postponed his surgery on one occasion awaiting the outcome of the application, but it had to go ahead which placed a significant emotional burden on the family. It was stated the family juggle various commitments and the sponsor worked remotely from the hospital for a period following his father’s surgery.
Regarding incentives to return, the visa applicant has her home, her husband’s business, and a large, extended family, also the visa applicant’s [child] who will remain is [age] and needs to stay in [school]. The Tribunal was referred to the passports of the visa applicant who travelled while one [child] remained in Iran. In reference to the Tribunal’s question about alternative childcare arrangements for the [child] who would stay in Iran, it was submitted it is not reasonable to reduce the mother/[child] relationship to one of childcare and logistics because the evidence before the Tribunal is significant in terms of the devotion the visa applicant has to her [children]. It was claimed that just because there are other family members who could feed and house her, that is not the calculation of a mother when considering separation. The representative stated the process to bring family members when applying for protection may take at least five years at best plus with possible refusals and a partner visa application it could take up to 12 years. It was submitted the evidence before the Tribunal is that this is not a period the visa applicant would be away from her [child] because recently, she would not stay longer in [Country 2].
The Tribunal was referred to property and liquid assets in Iran as incentives to return. The visa applicant has not been to Australia to demonstrate visa compliance before which cannot be held against her but has held visas to other countries. She has no intention to work or study and will return within three months which is based on the medical evidence. She has no intention to apply for any other visa onshore and condition 8503 prevents her from applying from any other visa apart from protection, and there is no evidence she would not comply with those conditions.
The representative gave reasons why it is claimed the visa applicant will not apply for a protection visa: The family in Australia have a different profile which is one of the reasons the visa applicant did not leave with the country with them; she was getting married and saw that family as her new family; life is ok for the visa applicant in Iran; as submitted by the sponsor, Sunnis of their ethnicity are at greater risk than Shia of the same ethnic profile; the procedural history of this family is that the visa applicant had an opportunity to leave with the family and did not; she has been to [Country 1] and [Country 2] twice and did not remain; nothing has changed about her circumstances; she has greater reasons to return now due to her husband, children, property, and financial stability.
It was submitted everything before the Tribunal suggests the visa applicant will not apply for protection. A compliant visa history is in her interest because her life is in Iran, but she has family in Australia, and she hopes to travel again which is a reason for her to comply. The father is an Australian citizen, and the family are awaiting theirs. The representative stated it cannot be the intention of the visitor visa program and the assessment of the genuine temporary entrant criteria that Australian citizens and permanent residents with a refugee background cannot be granted visitor visas and for those reasons, the visa applicant should be able to reunite with her family.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purpose of visiting her parents and siblings in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.221 and cl 600.222.
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 visa applicants have not held a substantive Australian visa or bridging visa and have not travelled to Australia before. Therefore, whether they have complied substantially with visa conditions in the past is not applicable.
The Tribunal considered 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) OR (3) OR (4)] OR 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.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
Assessment
The Tribunal accepts the visa applicant does not intend to work in Australia or engage in study or training.
Regarding employment and financial circumstances in Iran, the visa applicant has [young] children and is not employed. The Tribunal was informed the visa applicant’s spouse has his own business in Iran, however no independent evidence was provided in support of this claim. A certificate from [Bank 1] dated 2 September 2023 in the name of [Visa Applicant 1] was submitted in evidence. It displays a balance of 7827260522 Iranian Rial which the representative advised is equivalent to AUD$285,958.00. The Tribunal notes the bank letter is not current as it is more than 12 months old. Also, there is no transaction statement or other evidence provided to indicate where these funds derive from. An Iranian property document with English translation in the name of [Visa Applicant 1] was submitted in evidence. The document relates to residential property in [a named village], Iran. The Tribunal accepts the visa applicant has some financial and property interests in Iran.
The Tribunal was informed the visa applicant’s incentive to return to Iran is her husband and [child] as well as her extended family and her property. It was submitted the visa applicant would not leave her oldest [child] in Iran with her husband and his family and apply for protection in Australia. The Tribunal was referred to what were said to be processing times for protection visa applications in Australia to support the claim that the visa applicant would not be prepared to leave her oldest [child] in the care of others in Iran for that long. The representative submitted the best-case scenario for the visa applicant to be granted protection and her family to join her would be five years and the worst case would be 12 years. The Tribunal does not accept this is accurate. According to the Department, most new applications for a Protection visa (subclass 866) are being decided almost eight times faster compared to recent years.[1] The Tribunal is not satisfied the visa applicant would return to Iran because she has extended family there and property in her name. The visa applicant has her parents and [siblings] in Australia that provide an incentive for her to remain. Any property that she owns can be sold, leased, or managed by others in her absence. The Tribunal is also not satisfied the visa applicant will return to Iran because she would not leave her [child] for an extended period. The Tribunal does not doubt the visa applicant is a dedicated parent as claimed. However, applicants for protection in Australia can and do leave close family members either indefinitely, or for periods of time to achieve a desired migration outcome.
[1] >
According to DFAT country information[2], the economic situation in Iran is challenging with high inflation and falling standards of living. DFAT assesses economic incentives are a key reason for emigration for many Iranians. The review applicant claimed his sister in Iran lives a comfortable middle-class life, but the Tribunal does not have satisfactory evidence regarding her current living situation. The Tribunal is not persuaded the visa applicants would be unaffected by the economic pressures in the country.
[2] DFAT Country Information Report - Iran 24 July 2023 (Version 2)*
In his statutory declaration of 24 October 2024, the review applicant writes: “We are Ahwazi Arabs who face persecution from the Iranian government”. According to country information, Ahwazi Arabs in Iran have been marginalised historically and are discriminated against. The review applicant declared that unlike he and his family members in Australia, his sister did not convert from Shia Islam to Sunni. He said she still follows the dominant religion in Iran, and there are many Shia Ahwazi Arabs living in the country. When asked if he knows whether the situation has improved in Iran for people of his family’s ethnicity, the review applicant said he did not know. Instead, he submitted his sister has never mentioned anything political or related to protection claims. The Tribunal finds that despite the visa applicant adhering to Shia Islam, she is nevertheless part of a persecuted ethnic minority. The Tribunal considers the visa applicant not disclosing to her family members in Australia any difficulties she may be experiencing in Iran does not mean there are none. The Tribunal finds the Ahwazi Arab ethnicity of the visa applicants provide a reason for them to seek to remain in Australia rather than return to Iran.
During the hearing, the Tribunal asked the visa applicant why her family members came to Australia. The visa applicant stated her parents were forced to leave and the only information she has is that things were bad in Iran. As to why she did not go with them, the visa applicant said she was married and could not leave her husband. The Tribunal found the visa applicant’s evidence to be vague. Although the visa applicant claimed she was quite young at the time, it must have been a significant event for her. The Tribunal does not accept the visa applicant did not know the reasons why her whole family comprising her parents, [and specified siblings] left Iran, or that currently she only knows the situation for them was difficult.
The reason the visa applicant wishes to travel to Australia is because her father, [Father A], recently underwent [surgery] and is recovering at home. The Tribunal was informed the family in Australia want their sister to take care of him for several weeks because they all work or study and do not have any other care options. The Tribunal accepts there are compassionate reasons for the visa applicant to travel due to her father having undergone major surgery. However, the Tribunal does not accept the review applicant and his family have no other options for the care of their father than having the visa applicant travel from Iran to fulfil that role. There is no evidence before the Tribunal to indicate the review applicant or a family member has applied for leave from their employer to provide care, or that they have investigated any services that may be available from the hospital or another carer organisation. As these are options that could be pursued, the Tribunal is not satisfied a decision to refuse a visitor visa to the visa applicant would have adverse consequences for [Father A].
The Tribunal considered the visa applicant's international travel history, including any compliant travel to other developed countries. According to the evidence the applicant has travelled twice to [Country 1] and returned to Iran afterwards. She has also travelled to [Country 2] twice, most recently in 2023 where she spent time with her family before returning to Iran. The Tribunal accepts the applicant has travelled to other countries and returned to her home country. However, travel to [Country 1] and [Country 2] is not comparable with Australia. There is no evidence the visa applicant had any family or other ties to those countries while in Australia she has [number] close family members. For these reasons, the Tribunal is not satisfied the visa applicant’s compliant international travel history is an indication that she will return to Iran after visiting Australia.
Security
The Tribunal notes the review applicant declared in his evidence that he would be prepared to provide a security deposit to ensure the visa applicant complied with the conditions of any visitor visa. However, the only issue the Tribunal can consider is whether a security has been lodged if one were requested by the delegate. If a security has not been asked for, the Tribunal is not able to ask for a security. In this case no security deposit was requested by an officer authorised under s 269 of the Act.
For the above reasons the Tribunal is not 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 not met.
DECISION
The Tribunal affirms the decision not to grant the visa applicants a Visitor (Class FA) visa.
Date(s) of hearing: 26 November 2024
Representative for the Applicant: Miss Bethany Lillian Rose