Afshar (Migration)

[2023] AATA 2236

Afshar (Migration) [2023] AATA 2236 (25 May 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nadereh Afshar

VISA APPLICANT:  Mrs Sepideh Sadigh

REPRESENTATIVE:  Mr Farnam Razzaghipour (MARN: 9789359)

CASE NUMBER:  2212395

HOME AFFAIRS REFERENCE(S):          BCC2020/324355

MEMBER:Linda Holub

DATE OF DECISION:  25 May 2023

DATE CORRIGENDUM

SIGNED:13 July 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 7 should read: For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Linda Holub
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nadereh Afshar

VISA APPLICANT:  Mrs Sepideh Sadigh

REPRESENTATIVE:  Mr Farnam Razzaghipour (MARN: 9789359)

CASE NUMBER:  2212395

HOME AFFAIRS REFERENCE(S):          BCC2020/324355

MEMBER:Linda Holub

DATE:25 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 25 May 2023 at 9:51am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 – Sponsored Family stream – inconsistent evidence – family’s spiritual beliefs – family’s migration history – not satisfied the applicant genuinely intended to remain in Australia temporarily – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 602.211, 602.231

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 August 2022 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 6 February 2020. 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 the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

5.    The review applicant appeared before the Tribunal on 19 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6.    The review applicant was represented in relation to the review.

7.    For the following reasons, the Tribunal has concluded that the [matter should be remitted for reconsideration OR decision under review should be affirmed].

BACKGROUND

8.    The review applicant is the mother of the visa applicant. She was born in 1953. Department records indicate that she first arrived in Australia as a holder of a Contributory Parent (Subclass 143) visa. She became an Australian citizen by grant in August 2017. This was confirmed at hearing.

9.    The review applicant stated that she came to Australia in 2012 with her husband and her youngest son. He was a dependent on her Contributory Parent (Subclass 143) visa. She decided that given her age and that two of her children are here she decided to stay here. She stated that her older son first came for study and work and encouraged her daughter to come for the same purpose. While they were onshore, they applied for [a permanent visa]. She stated that they did so because the country situation in Iran was not as they would like for young people. She confirmed that aside from the visa applicant all her children reside in Australia.

1. The visa applicant was born in Tehran, Iran in 1975 and is a citizen of Iran. She is married. In Iran she has her spouse, a son and a daughter. Written and oral evidence provided confirmed that her husband is a dentist.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of a family visit for a period of up to three months. In particular, she wished to spend the Persian New Year with her parents, her sister and her newly born niece and in Sydney. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

3. 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)).

4. The visa applicant has not previously travelled to Australia. She provided to the Department a copy of her Islamic Republic of Iran passport, including entry and exit stamps as evidence of international travel. Her passport included a copy of her Kingdom of Thailand visa, issued 26 May 2017, and copies of her ETATS SCHENGEN visa issued 10 November 2017, and her ESTADOS SCHENGEN visa issued 14 September 2018. Entry stamps into Thailand, France, Germany and Spain are evident in her passport The Tribunal heard that she travelled there as a tourist.

5. 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.

6. The review applicant stated that the visa applicant and her husband have a very busy life in Iran. The visa applicant works as a professional nutritionist and dietitian.

7. The review applicant stated that she has not seen the visa applicant for six years and misses her. When asked if she has met the visa applicant overseas, she referred to her age and stated that she cannot travel.

8. I referred to information contained in information before me that the review applicant’s two children who are residents in [Australia].  In response the review applicant responded that she has been truthful in her life and that what is saying is that her daughter wants to visit, and she can guarantee that she will return to Iran after her visit.

9. I explained to the review applicant that given the family history of coming to Australia [and seeking a permanent visa whilst onshore], I wanted to further explore why her two Australian citizen children [came to Australia]. She responded that [details deleted].

10. The review applicant stated that the plan for the visit is for the family to spend time together.

11. The review applicant stated that she and husband live together in a rental apartment with one bedroom. They receive the old age pension. She stated that although there is only one bedroom they can accommodate the visa applicant during her short visit.

12. The review applicant stated that the incentives for the visa applicant to return to Iran are her own family and the business. She stated that the visa applicant loves Iran and is close to her aunts and uncles and they visit each other all the time.

13. When asked if the visa applicant is a Muslim and how she practices her Muslim faith. The review applicant stated that visa applicant practices privately and stated that they might say their prayers. When asked if the visa applicant’s husband goes to the mosque, she told me that they follow religious customs at home. I put it to her that it appears they are not very religious. She responded that they have a normal life and follow customs such as saying prayers.

14. The review applicant stated that the visa applicant has no health concerns and has no intention of undertaking any work or study. According to her oral evidence the visa applicant has not had any problems in Iran in relation to her ethnicity or her religion. the visa applicant will be using her own funds for the trip and will be hosted by the review applicant.

Evidence provided by the visa applicant

1. The visa applicant stated that she would like to come to Australia because she hasn’t seen her parents for a long time. She stated that even a month would be sufficient.

2. [Details deleted].

3. When asked about the incentives for her to return to Iran the visa applicant stated that are she is not thinking of staying in Australia. She stated she is very attached to her husband and her daughter and there is also the business. She stated that she loves her life, her husband and her daughter and that she would not leave Iran.

4. The visa applicant stated that their business is busy. She lives in an apartment with her husband and daughter. Her son is undertaking a computing engineering degree at a university in Germany and commenced about two months ago. She confirmed that the title of the apartment is in the name of her husband, and they have two other apartments and cars.

5. The visa applicants stated that she has not had any problems in Iran for any reason. The visa applicant added that indeed she has a successful life.

6. The visa applicant explained that she works in a pro bono capacity. She stated that she goes to certain areas two or three days per week to help sick people with dietary advice and people in society who need help.

Evidence provided by the visa applicant’s sister

1. The visa applicant’s sister confirmed that she is a Christian. I told her that the visa applicant had told me she is a Christian. She responded that she is surprised to hear that.

2. The visa applicant’s sister explained her migration history. She stated that she came to Australia on a Student visa and her brother travelled to Australia on a Working Holiday visa. [Details deleted]. She stated that the parents sold their business and then they and her brother obtained their Contributory Parent visa and paid a lot of money in advance for health insurance.

3. The visa applicant’s sister stated that the visa applicant has extensive bonds with the Iranian community. She stated that during Ramadan the visa applicant goes to the mosque and helps prepare food there and provides these sort of services she also works in a voluntary capacity by providing nutritionist services for the community. She stated that the visa applicant was probably thinking if she said she is a Christian she would have a greater chance to come to Australia.

4. In relation to other incentives for the visa applicant to return to Iran, the witness stated that her daughter is a major consideration especially with the current situation in Iran. She stated that the visa applicant won’t leave her daughter and because her husband works full-time, she does not want to leave her daughter for an extended period, even for the purpose of the visit. She stated that the visa applicant talked about timing her travel to Australia to coincide with her daughter’s school holidays. The witness further stated that the visa applicant loves her husband and is very family oriented. She stated that she studied in Europe, and they sent their son to Germany because they would do anything for their kids to study for the future. She stated they are definitely not interested in Australia because it is too far away for study and to live. She stated that she has no one else to look after their daughter.

5. When asked why Australia was not “too far away” for her and her brother, the visa applicant’s sister responded that she and her brother are more adventurous and were mountain climbers in Iran whereas her sister very family oriented.

Concerns put to the review applicant

1. I put it to the review applicant that in oral evidence I had heard that [details deleted]. The review applicant responded that she can guarantee the visa applicant won’t even stay for a month. She stated the visa applicant is a Muslim and that perhaps she spoke about Christianity in that way because she has been affected by Jesus, and she talked to her so maybe she has been influenced by those conversations. She stated that she can make a commitment that she will come for a month and return.

Post hearing submissions

1. On 21 April 2023 the applicant’s migration representative sought time to provide additional evidence claiming there were “some significant errors made in interpreting the evidence given by witnesses as well as some of the member’s questions” In the request, it was claimed that had they not been occurred, the hearing may have taken in different direction. In addition, the applicant sought a copy of the audio recording of the hearing. The Tribunal agreed to both.

2. The review applicant subsequently provided the Tribunal with a statement dated 5 May 2023 written by her daughter, Jasmin Rodd who was a witness at the hearing stating:

• the hearing seemed to focus on our spiritual beliefs where [the review applicant’s] honesty served to disadvantage her daughter's tourist visa application.

• there were many comments on the whole family's religious beliefs rather than understanding the actual practices.

• member kept calling the whole family Christians, however, the dad and younger brother are not.

• [the review applicant] and her daughter [the visa applicant] were incredibly honest and transparent about their spiritual beliefs, and they knew that being truthful may prove to be too costly for them, however, couldn't hide the fact that she has Christ in their hearts.

• the visa applicant is a genuine tourist and doesn't not have any intention to stay in Australia rather than visiting her parents for 4 weeks. She will definitely return to Iran to fulfil her responsibilities as a mother and wife.

• the visa applicant has been to several democratic and free countries including France, Germany, Spain, and [Italy].

• despite the Iranian harsh security rules and the fact that they can spy and record your private conversations over the (landline) phone, the visa applicant's safety was jeopardised when directly and repeatedly questioned on her religion beliefs. She even said "I can't openly say such things (about my spiritual belief) over the phone, however, the member continued to persist on its line of religious inquiries.

• if the evidence given by the [visa applicant and the review applicant] over the landline phone in Iran is overheard and recorded by the security authorities in Iran, could have devastating safety consequences for my sister in Iran.

1. In the statement a number of comments were about the oral evidence provided being truthful and transparent. The Tribunal notes that all parties giving evidence took oaths and / or made affirmations that their evidence would be truthful. The fact that they subsequently were truthful is not remarkable but rather what is expected of anyone providing evidence at a hearing.

Findings

1. Having considered all the evidence, the Tribunal accepts that the visa applicant wishes to come to Australia for a month for the purpose of visiting her family. The Tribunal accepts that the visa applicant has sufficient funds to cover the cost of the trip and that she will stay with family members during the period of her visit. The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia.

2. The Tribunal has some concerns regarding inconsistent evidence provided at hearing. As outlined in the section above regarding those concerns, the review applicant stated that the visa applicant is a Muslim while the visa applicant told the Tribunal that she is a Christian. The Tribunal considered the review applicant’s response when the inconsistency was put to her did not adequately explain this inconsistency but rather, she appeared to somewhat contradict her earlier evidence.

3. The Tribunal accepts there is some sensitivity about overly pursuing particular lines of inquiry over the telephone with applicants residing in Iran. Indeed, the Tribunal did not ask further questions of the visa applicant for that reason. The Tribunal notes that the visa applicant nevertheless responded that she considers herself to be a Christian even though she indicated that she cannot be open about this in Iran.

4. The Tribunal also has some concerns regarding the fact that despite claims of incidents of misinterpretations at hearing, the post hearing statement did not refer to any misinterpreting. It was unclear why this claim was made, and I note that no such claim was made at the end of the hearing.

5. As noted in the post hearing statement, the Tribunal pursued questions regarding the family’s spiritual beliefs. This is because these appeared to influence the family’s migration [history]. The fact of the visa applicant’s family’s migration history [does] raise concerns for the Tribunal that the visa applicant may seek to take the same pathway.

6. The Tribunal accepts that the visa applicant has travelled to France, Germany, Spain, and [Italy]. The Tribunal gives this some positive weight in [details deleted]. However, the Tribunal has also regard to the fact that her family resides in Australia and not in any of those countries.

7. The Tribunal accepts the visa applicant’s husband and daughter provide strong incentives for her to return to Iran after her visit and that her life and community involvement there also serve as incentives to return. However, the Tribunal has residual concerns regarding the family’s migration history and the fact that the visa applicant herself declared herself to be a Christian in her oral evidence.

8. The Tribunal accepts that the visa applicant's primary motive for applying for this visa is to visit her mother and spend time with other family members. However, the Tribunal is not satisfied that this is her only intention in applying for this visa.

9. Despite the assurances given by the review applicant that the visa applicant will comply with the conditions of his Visitor visa, the Tribunal is not satisfied that she will not seek to change her migration status once she comes to Australia. Therefore, the Tribunal finds that the visa applicant does not meet the requirements of cl.600.211.

10. The Tribunal is very sympathetic towards the review applicant and her family and their longing to have the family together. Nevertheless, for the above reasons the Tribunal is not 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 not met.

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

12. For the above reasons the Tribunal is not 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 not met.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Linda Holub
Member