Ayoubi (Migration)

[2021] AATA 2477

Ayoubi (Migration) [2021] AATA 2477 (21 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sahar Ayoubi

VISA APPLICANT:  Miss Samira Ayoubi

CASE NUMBER:  1906146

HOME AFFAIRS REFERENCE(S):          BCC2018/6138081

MEMBER:Angela Cranston

DATE:21 April 2021

PLACE OF DECISION:  Sydney

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 21 April 2021 at 10:22am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – the visa applicant genuinely intends to stay temporarily in Australia – positive migration history – compliant in the past –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 30 January 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The following paragraphs refer to the evidence whereas the consideration of claims and evidence begins at paragraph 21.

2.  The visa applicant applied for the visa on 13 January 2019. 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.

3.  In her application, the applicant stated that she was born in 1990, never married, lived in Tehran, and that non-accompanying members of her family unit included her mother, father, and brother Reza Ayoubi. She also stated that she wanted to come to Australia for up to 3 months to visit her three sisters in Australia. She also stated that she was an architectural engineering student at university.

4. 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.

5.  The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 for the following reasons:

You are a 29 year old single Iranian national residing in Iran. You requested a visa for up to 3 months to visit your sisters. And you are currently a student.

I acknowledge that the purpose of your intended travel is to visit your sisters. While the purpose of the visit is noted this in itself does not demonstrate that you only intend a genuine temporary stay.

I note that your sister provided an invitation to support your visit. Although this information has been considered,  support or guarantees given by family members and friends are generally not sufficient evidence that the applicant intends a genuine visit. Visitor visa policy directs me to consider such offers of support given by family members and friends in Australia; ultimately the onus is on the applicant to satisfy me that a genuine visit is intended. I therefore place limited weight on the supporting guarantee of a family member. Furthermore, I note that you are intending to travel by yourself. I am concerned that you do not have any dependent family in Iran which would induce your return. I am therefore not satisfied that you would have any personal incentive to depart Australia at the end of a temporary stay. I have also taken into consideration your sisters are residing in Australia, this may provide you with an incentive to remain in Australia which is not outweighed by other family ties to Iran. I therefore am not satisfied that you would have any personal incentive to depart Australia at the end of a temporary stay.

I also note your provided evidence of personal funds and property ownership in Iran. However, I must assess your application on your circumstances as a whole and I am concerned that funds are easily transferred. I am therefore not satisfied that your assets or funds would provide you with incentive to depart Australia at the end of temporary stay.

I also note that you have indicated in your application that you are currently an architecture student in Iran. However, this is not binding. I place little weight on your study ties to act as an incentive to return. I find that the incentive to return to your studies is limited.

Finally I have considered your travel history. I have noted that movement stamps in your passport indicate that you have travelled to Australia before. While I acknowledge your previous travel, I must assess this application based on your current personal circumstances as a whole, I give this previous travel limited weight as evidence that you intended genuine temporary stay.

6.  The Tribunal received the following dated 3 April 2021 from Maryam Ayoubi, the review applicant’s sister:

We are a family of 8 plus my eldest sister Leila’s husband and our only nephew have travelled to Australia at least once. Some of my family members have travelled two or three times and every single family member has returned home before their visa expires and no one breached any of their visa conditions. Therefore my family has a great track record of honouring the chance given to them by the Australian Department of Home Affairs to visit family and enjoy Australia.

I do not see why Samira would not honour her visa expiry date. Samira is still a student and needs to be personally in Iran in order to finalise her degree. She is also a restaurant manager and have worked hard from the birth of the business and have plans to open two more branches.

She is a key member of the restaurant operations. She is just in need of a break and likes to visit Australia, family, and friends in particular her friend Ghazal who is a very close friend of Samira and my sister Sahar who is the closest with Samira and needs Samira’s emotional support.

Samira has also travelled to Australia back in 2012 on a student visa and returned home before her visa expiry date. Her trip to Australia is purely for leisure purposes.

My family in Iran also very dependent on Samira’s support with her daily life and she needs to return after six weeks. While Samira is away my eldest sister Leila will take care of my mum and dad. We are prepared to support Samira’s trip financially and provide accommodation, food, health insurance in order for her to have a pleasant stay in Australia.

7.  The applicant’s other sister, Soheila also wrote a letter dated 4 April 2011 with content that was similar.

8.  The review applicant wrote the following:

I am writing to support my sister Samira Ayoubi’s appeal against the decision to refuse a visitor visa subclass 600. I Sahar Ayoubi born 2 August 1987, Iranian passport number …want to sponsor my sister, Samira Ayoubi to come and visit me, her friend Ghazal who lives in Melbourne and have a holiday in Australia.

We are three sisters living in Australia. Maryam Ayoubi who is an Australian citizen and been living in Australia since 2004, currently in Istanbul. Soheila Ayoubi who is on a temporary resident visa (marriage visa) waiting for her permanent residency decision and been in Australia since 2012 and she’s stuck in Iran because of Covid pandemic at the moment. I Sahar Ayoubi, an Australian permanent resident waiting for my citizenship ceremony, been in Australia since 2011.

I am writing this statement to support my sister, Samira Ayoubi’s visitor visa subclass 600. The application originally was for her to come visit us and be here for our sister Maryam Ayoubi’s 40^th birthday. Since then the circumstances have changed but she still wants to visit. She intends to come to visit me and her friend Ghazal, who lives in Melbourne and have a holiday. We are also planning to visit Perth together.

As the case officer’s decision was made based on whether or not the applicant genuinely intends to stay temporarily in Australia I, Sahar Ayoubi, would like to sponsor my sister Samira Ayoubi to get a temporary visit visa and prepared to guarantee that Samira Ayoubi will depart Australia at the end of her temporary stay. Samira Ayoubi has no intention to overstay her visa.

Samira is a full-time manager in a café (café making Australian inspired cuisine named Piechi) and she is planning to open other branches in Iran. This is a dream come true for her to have the opportunity to open the café. Since Covid pandemic happened, Samira and Soheila decide to start the Pie in Iran, it’s really doing well and she’s been working hard on it to grow it big. She just needs a break to have a holiday and go back and Soheila will be looking after the business in six weeks that Samira is on holiday.

Also, she is an active student awaiting completion of a final project in architecture however she is managing the café at the moment and her goal is to open more branches all over Iran to introduce Australian cuisine. She definitely intends to finish her degree by doing the only project she’s got to do to finish, she will have to do the project in Iran under provision of her professor and attend meetings and at the end to get the degree she will have to do a presentation of her project in the university in front of the other professors to be able to complete the degree.

The only reason for Samira to go back is that she looks after mum as she needs someone to give her medication. I also would like to point out that as I am waiting on my citizenship, Soheila waiting on her permanent residency visa why would we guarantee her return if there is any intention of not going back since it will affect our future in Australia? Also would like to mention that all my family have been to Australia for a couple of times and all returned and never overstayed.

Samira also lived a study and is trying to 2012 and met all have busy conditions and she returned to run before her visa expiry which I believe is a strong point that she does not intend to overstay.

I am living in a one-bedroom unit with one study room which can fit a single bed located in Wharf Road Gladesville and I am prepared to accommodate her and pay for any expense she would have during her stay.

These last couple of years have been so emotionally difficult for me as I got divorced and then pandemic happened which had to spend most of the time at home on my own. It would be a great opportunity at my sister Samira Ayoubi here once the borders are open for six weeks, as she is not only my sister she is my best friend.

I Sahar Ayoubi and prepared to put up a bond of $10,000 to guarantee her temporary stay which would be lost if she does not leave the country.

9.  The review applicant appeared before the Tribunal on 13 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

10.  The review applicant stated the applicant had previously been to Australia, had not breached any rules and had returned to Iran. She stated all of her family had been to Australia and had respected the law. She also stated the applicant was studying and working in Iran and had reasons to return. She stated of the three sisters living in Australia, the review applicant was applying for citizenship and her other sister was waiting upon her permanent residency so they would not jeopardise these applications.

11.  The Tribunal put to the review applicant that the applicant was 31, single and in Iran and the Department was concerned that she did not have any dependent family, that even though she provided evidence of funds and property, funds were easily transferable and that even though she was studying architecture, this was not a binding reason for her to return to Iran.

12.  The review applicant stated that the applicant’s parents were dependent on her and that her 63 year old mother had some mental problems including depression which meant the applicant needed to handle her mother’s medication. When asked about her father she stated he was there but not home all the time. She stated her mother, father and the applicant lived alone. She also stated her brother and sister Leila who was 44 was also in Iran.

13.  The Tribunal asked about the review applicant about her siblings. She said Maryam was an Australian citizen who had travelled from Turkey from Iran and Soheila who had applied for a visa on the basis of her marriage. was also in Iran.  The applicant had been to Australia in February 2012 and 2013 on a student visa. The review applicant said in Iran the applicant studied and was also working in a café which Soheila had started.

14.  The Tribunal put to her that DFAT had said the economic situation in Iran was the primary reason why people left. The Tribunal also put to 3 of her family members had either migrated or were in the process of migrating to Australia. She stated that the economic situation Iran had always been very bad but it had not changed since the applicant’s previous Australian visit when she still returned to Iran. She stated the applicant just wanted to have a holiday visit. She stated her brother had come when he was single, had visited and had returned. She also stated her parents were dependent on her. 

15.  The review applicant also stated she was willing to provide a bond of up to $10 000.

Country Information

16.  According to DFAT Country Information Report Iran April 2020:

DFAT assesses that economic hardship was the primary driver of countrywide protests in December 2017, January 2018 in November 2019. Local sources told DFAT that economic conditions, particularly following the re-imposition of US sanctions make emigration strongly desirable for many Iranians. DFAT assesses the current economic conditions in Arana challenging and economic incentives act as the primary push factor that emigration for most Iranians.

Movement records

17.  Movement records indicate that the applicant arrived in Australia on a student visa on 20 February 2012 and departed on 13 February 2013.

18.  Roghiyeh Khodaviran (the applicant’s mother) came to Australia on 14 September 2009 on a tourist visa and departed on 11 October 2009. She again arrived on 10 December 2018 and departed on 11 February 2019. The applicant’s father Mohammad Ayoubi came to Australia on 2 November 2013 and departed on 8 January 2014. He again arrived on 10 December 2018 and departed on 11 February 2019. The applicant’s brother Reza Ayoubi born in 1982 arrived in Australia on 13 February 2016 and departed on 11 May 2016. The applicant’s sister Leila Ayoubi arrived in Australia on 14 September 2009 and departed on 11 October 2009. She again arrived on 26 December 2011 and departed on 23 January 2012.

19.  The applicant’s sister Sahar (the review applicant) born in 1987 arrived in Australia on 26 August 2011 on a student visa and obtained a 457 visa on 16 February 2015. She obtained a 186 visa on 9 January 2019. Maryam Ayoubi arrived in Australia on 15 September 2004 on a 462 visa. She obtained a 457 visa on 10 July 2008 and was granted a 136 visa on 20 November 2008. Soheila Ayoubi arrived in Australia on 7 April 2011 on a tourist visa and departed on 6 June 2011. She again arrived on a student visa on 20 February 2012 and was granted a 457 visa on 7 June 2016. She obtained an 820 on 15 December 2018. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

21.  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.

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

23.  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)).

24.  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.

25.  Condition 8501 - adequate arrangements for health insurance, 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia and 8558 - cannot stay more than 12 months in any 18 month period may also be imposed.

26.  In this case, the Tribunal considers condition 8503 and 8558 should be imposed.

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

28.  In this case, the Tribunal has considered the personal circumstances of the applicant who lives and works in Tehran. The applicant is a 31 year old single Iranian woman. In addition, she also has her parents, siblings and studies and she owns property and has personal funds. The Tribunal is satisfied that the applicant has personal ties to Iran and these are reasons why, in the Tribunal view, the applicant would return to Iran after any period of authorised stay.

29.  However, the applicant also has three sisters in Australia, reasons why, in the Tribunal’s view, the applicant would remain in Australia after any period of authorised stay.

30.  When this and the county information was put to the review applicant at hearing, she pointed to the applicant’s visa history as well as a long history of family compliance with Australian migration law.

31.  Having considered this history, the Tribunal accepts that the applicant and her family are law abiding and even if their long-term aim is for the applicant to migrate to Australia, their short-term intention for her to temporarily visit Australia only. In reaching this conclusion, the Tribunal notes that not only the applicant, but all of her family members have previously complied with the terms of their various visas and there is no evidence of non-compliance.

32.  Accordingly, in the Tribunal's view, this family's compliance with migration laws is impressive and there is nothing in the applicant's or review applicant's past migration history or in the past migration history of any of their family to suggest that they have done anything other than what they say they will do.

33.  In reaching this conclusion the Tribunal has also considered the review applicant's understanding of the potential adverse consequences on future visa applications for the applicant or her family if the applicant does not comply with any of the visa conditions including not being entitled to a substantive visa, other than a protection visa or remaining after the end of any permitted stay.

34.  While the review applicant wanted the Tribunal to consider sponsorship and a security bond, the sponsorship requirement in the tourist stream applies only if the applicant intends to visit certain kinds of relatives, and if the Minister has required the applicant (and each other applicant who is a member of the applicant's family unit, or in relation to whom the applicant is a member of the family unit) to be sponsored by a specified Australian relative under cl.600.224(1). This capacity of the Minister to request sponsorship is intended to provide additional flexibility in relation to applicants who may otherwise not meet the visa criteria (see Explanatory Statement to SLI 2013, No. 32, p.18). One effect of requiring sponsorship is to engage the security requirement criterion in cl.600.225.

35.  In this case, the Tribunal considers the review applicant’s sponsorship of the applicant and the potential loss of any security bond if one is imposed by the Department would provide additional incentives for the applicant’s compliance.

36.  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

37.  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.

Angela Cranston
Member