Asl Ghalichehbaf (Migration)

[2024] AATA 920

Asl Ghalichehbaf (Migration) [2024] AATA 920 (19 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Alireza Asl Ghalichehbaf

VISA APPLICANT:  Miss Moghimi Sakineh

REPRESENTATIVE:  Mr Fardin Nikjoo

CASE NUMBER:  2301602

HOME AFFAIRS REFERENCE(S):          BCC2022/4482505

MEMBER:Louise Nicholls

DATE:19 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 March 2024 at 5:33pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – permanent visa application – previous compliant visit – property and financial resources – family commitments in home country – economic and security situation in Iran – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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. The applicant for the visa (visa applicant) is a citizen of Iran and is 68 years old. The applicant for review (the review applicant) is the applicant’s son. He is 35 years old and is an Australian citizen.

2. The visa applicant applied for a Visitor (Class FA) on 26 October 2022. She provided several documents, including copies of the visa applicant’s passport biodata page, her Contributory Parents visa application, a copy of the visa applicant earlier visitor visa grant, entry stamp in the visa applicant’s passport relating to an earlier visit to Australia, a letter from the review applicant’s general practitioner and a copy of the review applicant’s tax assessment. The visa applicant’s representative also made written submissions on the visa application.

3. On 5 December 2022 a delegate of the Minister for Home Affairs refused to grant the visa a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act) on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant has a genuine intention to stay temporarily in Australia for the stated purpose.

4. This is an application for review of that decision. The review applicant provided a copy of the delegate’s decision with his application. He also provided written submissions made by his representative, a statement made by the visa applicant’s daughter and a copy of his Great Southern Bank statements to support the application.

5. The review applicant appeared before the Tribunal on 20 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and her daughter by MS Teams audio. 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. The representative attended the Tribunal hearing.

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

   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. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

10. 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 Tourist stream.

    Background

11. According to the visa application the visa applicant is 68 years old and was born in Sahrood, Iran. She is currently living in her own apartment in Tehran with her daughter and grandson. She stated she was a widow. The visa applicant gave evidence at the hearing that she is a retired teacher and her husband passed away about 10 years ago. She receives a pension which she uses for her own financial support.

12. The review applicant stated at the hearing that he was 35 years old. He was born in Tehran and attended school and university in Tehran. He told the Tribunal he had a degree in mechanical engineering. In 2009 he obtained a student visa to study in Australia. He studied at the University of Technology and has now completed a Bachelor of Mechanical Engineering . He has worked as a consulting engineer in projects in Canberra, Newcastle and Sydney. He obtained a [permanent] visa in 2011 and became an Australian citizen in 2013. The review applicant is not married.

13. The visa applicant’s daughter gave evidence that she is 42 years old and she has one son. She and her husband are separated, and she and her son are currently living in her mother’s apartment in Tehran. She is the part owner of another property inherited from her father. That property is rented to tenants. Before she married, she completed a computer engineering qualification but has not worked since her marriage.

    Travel and migration history

14. The visa applicant gave evidence which is supported by Departmental records that in 2011 she, her husband and daughter travelled to Australia on a visitor visa. She remained in Australia for about 3 months and departed before the visa ceased. The review applicant also stated that the visa applicant visited Istanbul on one other occasion but other than those trips she has not travelled outside Iran.

15. The review applicant was granted a permanent visa on 4 July 2011. Since that date he has travelled outside Australia on 13 separate occasions. He told the Tribunal he last travelled to see his mother in 2022 and has not seen her for two years.

    Purpose and duration of visit

16. In the present case, the visa applicant seeks the visa for the purposes of visiting her son. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

17. The review applicant stated his mother wished to visit for 2-3 months. The visa applicant stated she was not sure how long she wanted to stay. It depended on her daughter’s situation.

    Compliance with conditions of last substantive visa.

18. 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)).

19. The visa applicant visited Australia in 2011 and departed before her visa ceased.  There is no evidence of any other non-compliance with her visa conditions.

    Intention to comply with conditions.

20. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.611(3)):

    ·8101 – must not work in Australia

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

21. There is no evidence before the Tribunal which indicates that the applicant intends to work or study while in Australia and the Tribunal accepts that the visa applicant does not have an intention to work or study in Australia.

    Other relevant matters

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

23. At the Tribunal hearing the Tribunal explained that in determining whether the visa applicant intended to stay temporarily it would consider evidence of those matters which might act as incentives for the visa applicant to remain in Australia against those which will encourage her to return to Iran.

24. In the submissions provided to the Department the visa applicant’s representative noted that the visa applicant was seeking a 3-year visitor visa. He stated that the visa applicant is currently waiting for a contributory parent visa to be granted. He provided a copy of her application for permanent residence as a Contributory Parent which was lodged on 6 October 2020.

25. At the hearing the Tribunal noted that the visa applicant had applied for a permanent residence visa and noted this may not be consistent with the current application which stated that the purpose of the visit was for a temporary visit. The review applicant stated that the visa applicant just wanted a permanent visa so that she could come and go to Australia when she pleased. The Tribunal noted that the cost of a contributory parent visa was $50,000 to $60,000 which seemed a large amount of money to pay if the visa applicant was only seeking multiple visitor visa entries.

26. When the visa applicant was asked about her contributory parent visa application, she stated the review applicant had organised that application. The Tribunal asked her what she intended to do if she was granted that visa. She stated that at the moment she just wanted to visit the review applicant who had not seen her for two years. She was not able to state what her intention was if she were granted the visa.

27. The visa applicant’s daughter stated that her mother had originally intended to move to Australia to live but since the daughter separated from her husband her situation had changed. Her mother now wanted to remain in Iran to help her daughter and grandson.

28. The Tribunal put it to both the review applicant and visa applicant that their evidence was not consistent. In 2020 the visa applicant had applied for a permanent residence visa to come and live in Australia on a permanent basis but was now stating that she had no intention to live in Australia because of her family and community ties in Iran and her lack of lack of ability to speak English.

29. The Tribunal put it to both the review applicant and visa applicant that country information indicated that the current economic and security situation in Iran was poor and would act as an incentive for the visa applicant to remain in Australia past the permitted period of stay. The review applicant stated the visa applicant had incentives to return; she was part of a community in Iran and was close to her sister and other family members. She also does not speak English and the move to Australia would be difficult for her.

30. The visa applicant stated that the country information on the economy and security in Iran was exaggerated, and the situation was not as bad as outlined.

    Assessment

31. The Tribunal has considered all those matters relevant to whether the requirements of cl.600.211 are met.

32. The Tribunal is not satisfied that the visa applicant has a genuine intention to stay temporarily in Australia to visit her son.

33. The Tribunal has considered the evidence regarding the visa applicant’s application for a permanent visa. It does not accept that the purpose of that visa application is so that the visa applicant holds a visa which would allow her to visit Australia and return to Iran without the necessity of applying for a visitor visa for each visit. The costs involved with a contributory parent visa would suggest that the visa requires a considerable investment of funds.

34. Further the review applicant and the visa applicant’s daughter claimed that the visa applicant’s situation has changed since she made her application in 2020. However, this suggests that the visa applicant did have a previous intention to migrate to Australia. This is not consistent with other evidence that the visa applicant only wanted to apply for this visa so that she could travel in and out of Australia without obtaining a visitor visa. If the applicant’s intention has changed due to her daughter’s situation as the review applicant, visa applicant and visa applicant’s daughter have all given evidence, they gave no explanation why her permanent visa application is still active. Further her inability to indicate how long she wished to remain in Australia indicates she was not prepared to commit to temporary visit.

35. The economic situation is Iran is poor. Further Iran has experienced multiple protests in the last 5 years. In 2023 the Department of Foreign Affairs reported that[1]

    2.15 DFAT assesses that economic hardship was the primary driver of countrywide protests in December 2017, January 2018, and November 2019 (see Protests). Local sources told DFAT that economic conditions, particularly following the reimposition of US sanctions, make emigration strongly desirable for many Iranians. DFAT assesses that current economic conditions in Iran are challenging, and economic incentives act as a key ‘push factor’ for emigration for most Iranians.

    ….

    2.105 Protests are relatively common in Iran and can be violent. Up until September 2022, protests were largely driven by economic issues (see Economic Overview) – low-income earners and working-class people demonstrating against cost-of-living pressures. Most protest action in recent years, including those driven by economic factors, has had an anti-government and anti-regime theme. Sources suggested environmental protests, including protests over water supply issues, also provoke a strong reaction from the regime. Protests can be met with lethal force.For each applicant, insert discussion of whether there is any evidence of non-compliance with conditions of previously held visa, and if so, whether there was substantial compliance.

    [1] DFAT Country Information Report Iran July 2023

36. The Tribunal accepts that the visa applicant has a pension income which she uses to support herself in Iran. However, country information indicates that “Spiralling inflation is reducing purchasing power, hitting the middle class and unemployed. Large religious charities and foundations (bonyads) play a large role in providing support to the vulnerable and poor.” The Tribunal considers that the economic situation in Iran together with her family ties in Australia would act as a strong incentive for the visa applicant to remain in Australia beyond any permitted stay.

37. The Tribunal has taken account of evidence given by the parties and witness that the visa applicant’s daughter and grandson live in her apartment and that she has provided support to her daughter and grandson since her daughter’s marriage had broken down. The Tribunal accepts that they live with her, but it notes that her daughter is not working and her grandson is of school age. Further her daughter is the part owner of another property in Iran.

38. The review applicant stated that he would like the visa applicant to visit because he has not seen her for two years. The Tribunal noted and the applicant agreed that he had visited Iran frequently since his permanent visa was granted. He stated that the demands of his work meant it was not easy to leave Australia at the moment. The Tribunal accepts he may have a close relationship with the visa applicant but does not consider that a two year separation outweighs other factors which suggest that the visa applicant does not have a genuine intention to visit temporarily.

39. The Tribunal also accepts that the visa applicant owns an apartment in Tehran, however, it does not consider that property ownership constitutes an incentive for her to return to Iran. Her daughter could manage the property, she could sell the property or it could be managed by commercial real estate agents.

40. Overall, the Tribunal has noted that there is no evidence of noncompliance, and it accepts she has no intention of working or studying. It has also weighed those factors which would indicate that the applicant genuinely intends to stay temporarily for the stated purpose against those which indicate that she does not. It does not consider that the family ties in Iran, her income in Iran and property interests would outweigh other factors, being her family ties in Australia, her application for a permanent visa which has not been withdrawn and the poor economic situation in Iran which would encourage her remain in Australia past any period of permitted stay.

    Conclusion

41. 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

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

    Louise Nicholls
    Senior Member