Fatemeh (Migration)

[2023] AATA 2713

Fatemeh (Migration) [2023] AATA 2713 (14 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rezaei Mojdehi Fatemeh

VISA APPLICANT:  Miss Masoumeh Rezaei Mojdehi

CASE NUMBER:  2307382

HOME AFFAIRS REFERENCE(S):          BCC2023/316731

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         14 July 2023 at 11:50 am (WA time)

DATE OF WRITTEN RECORD:                27 July 2023

PLACE OF DECISION:  Perth

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 27 July 2023 at 9:51am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant and compliance with conditions – visiting oldest sister after mother’s death – land, assets, pension and two siblings in home country and review applicant, her husband and children in Australia – changes in political/economic/social conditions in home country since previous compliant visits – no concerns for personal safety expressed – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, condition 8531

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [11.43 AM]

1. MEMBER:  Thank you.  I have decided I have heard enough evidence and seen enough information to give a decision now.  I do not feel a need to talk to your sister or your husband. 

1. This has been an application for a review of a decision that was made by a delegate of the Minister for Home Affairs on 30 March 2023, to refuse to grant your sister a Visitor (Class FA) Visa.  Now, your sister applied for this visa on 18 January this year.  It has come before me very quickly.  It is unusually quick.  I noticed that there was a priority hearing granted for you. 

2. At the time the visa application was lodged Class FA contained one subclass, Subclass 600 Visitor, with a number of different streams.  Your sister applied for the visa seeking to satisfy the primary criteria in the sponsored family stream.  You are the sponsor.  There was no issues taken by the Department with the sponsorship.

1. Criteria for a Subclass 600 Visa are set out in part 600, schedule 2 to the Migration Regulations. Relevantly, they include clause 600.211. That requires your sister, as the visa applicant, to satisfy the Minister that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

1. I know why the application was refused because I have read the decision some time ago.  I think it helps if I just read the reasons.  Now, the delegate was aware that your sister wanted to stay for up to three months to visit yourself and your family.  She had provided a bank statement, evidence of pension, a title deed to demonstrate ownership of land and assets.  The delegate was of the view that land and property, as well as financial assets, are easily transferrable assets that do not require a physical presence to be maintained and could be sold.

1. Anyway, the delegate placed limited weight on your sister’s ownership of assets as an incentive for her to go back to Iran.  She had declared family members who would remain in Iran during her proposed stay, namely two siblings, being your brothers.  But the delegate was not satisfied that your sister’s family ties to Iran sufficiently demonstrated a genuine intention to stay temporarily. 

1. The delegate considered her personal circumstances that might encourage her to remain here, being you and your three daughters and your husband.  The delegate considered the current circumstances in Iran, current being as of March this year.  That there were political and security and economic conditions in Iran combined with your sister’s strong ties to here.  The delegate was aware that your sister had previously travelled to Australia between 2010 and 2017, but since her last travel in 2017 the country situation had changed.  Your sister’s previous visa compliance was given limited weight in the assessment.

1. So they seem to be the reasons.  I said to you this morning that I am not bound by whatever thinking the delegate had.  I have to make my own assessment of the facts, the circumstances and make my own decisions.  And I am making my own decision in this matter. 

1. Now, you appeared today to give evidence and present arguments as a result of an invitation I had arranged.  I heard briefly from your daughter, your second or middle daughter.  The tribunal had the assistance of an interpreter had it needed to, but there was no real need to do apart from a couple of minor parts. 

1. As I explained to you at the beginning, the issue for me is whether clause 600.211 is met at the time of my decision, and that requires me, as the tribunal, to be satisfied that your sister genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  I spoke to you about the purpose.  You clearly outlined it was to visit you again and your family, and also in this very difficult time when you are all grieving in relation to the loss of your mother late last year.

1. I am satisfied that there were no business interests of your sister in Australia.  I am satisfied that there is no medical reason for her to seek to overstay or to stay further, or to seek a medical visa.  So when I looked at that subjectively, I was satisfied that the purpose for which the visa was being sought was a purpose for which a visa can be granted. 

1. I had regard to whether your sister has complied substantially with conditions to which the last substantive visa or any subsequent bridging visa held by her was subject to.  It is important to know her travel history, and I did know it coming into the hearing today.  It seems to me that she first obtained a visa to enter Australia back in October 2010, according to these records.  She arrived on 16 December 2010.  She left three months later.  She has had various visitor visas.  She came in February 2013; she stayed for two months.  She came 29 January 2015; she stayed for four months.  The last time she came was November 2016 until February 2017; that was three months.  And you tell me that she came with your mother on each of those occasions.  I accept that is so.  There would be no reason not to accept that.

1. Now, when I look at that and there is no information on the Department’s file for me to have any concerns about her non-compliance.  So I am satisfied that she has complied with those four or so visitor visas on each and every occasion.  And, as I said to you, I have to give that positive weight and I will. 

1. I have to assess whether your sister intends to comply with conditions to which the subclass 600 visa will be subject, and I explained what they would be.  She must not work in Australia.  At the age she is now, in fact, she has been retired for some period of time now in Iran, she has had experience and education in the teaching areas, I think it is highly unlikely that she would seek out any work in Australia.

1. 8201:  She ‘must not engage in study or training in Australia for more than three months.’  It is highly unlikely she would wish to engage in any study or training at all. 

1. She would not be entitled to a substantive visa, other than a protection visa, whilst here.  Now, there are no indications that she would be entitled to any substantive visa.  I did concentrate for some time with you on whether she might have reasons to seek the protection visa, and you have told me on several occasions that she has no reasons at the moment to fear for her safety.  In fact, during conversations with her over a number of years she has not expressed concerns for her personal safety.  Based upon your evidence, I am satisfied that it would be very unlikely that she would apply for protection if she came onshore.

1. That leaves one condition.  8531:  She ‘must not remain in Australia after the end of the permitted stay.’  And that is what I am focusing on from now. 

1. A couple of the documents that I think have been key to me that you have provided.  There was an email of 2 June ‘23 from your husband’s email address but from you:

My sister was the fulltime carer of our mother for her whole life.

1. This is your words.

She also travelled with my mother four times to Australia and the US in the last 12 years.  She returned on time back to Iran.  Unfortunately, in around January ‘23 my mother passed away.  This put severe emotional distress on my sister. 

1. It was a bit earlier than that that your mother passed away, but I think through grieving I think that is probably why there was a bit of an error.

She desperately requires compassion to overcome her grief and feeling.  I am the eldest sister.  I have a close relationship with my sister and have borne witness to these events and the emotional and psychological impact.  As I am not able to go to Iran for her support, I invited her to assist her mentally and emotionally.  I urgently request the matter to be reconsidered.

1. You did provide your mother’s registered death certificate.  That was translated.  It tells me this:  on 1 September 2022 she died from what was believed to be a stroke, a brain stroke.  I accept that; I have no reason not to accept it. 

1. Your travel movements, I am aware of.  You have gone back to Iran, but you have also travelled to other places including Singapore and the US.  There is nothing to concern me about your travel.

1. Other documents:  visas to enter the United States, I have checked those out.  A birth certificate for your sister or an extract, translated.  I accept that as being genuine.  Relevantly, there is a translated title deed in relation to property identified as 55/16795, book 4/1198, regarding property at a village or district.  District 4 in Rasht.  It looks as though Mr Reiza Mistrati Raad, transferred that property on price to your sister.  I think that may have been back in about February of 2012 or thereabouts. 

1. I am satisfied that your sister does own, in her own right, property.  I am satisfied by the evidence provided as to your sister receiving a pension.  It relates to her previous work in education, and you have given me evidence about her involvement in education and teaching.  It tells me she retired on 22 September 2008.  I am aware of those figures.  To me it has the appearance of being a genuine document; I accept that.

1. You have provided your own passports.  You have provided your own accounts.  I know of your husband’s work history.  It seems he is doing a bit of fly-in/fly-out work at the moment, involving driving.  You are a dental assistant or dental nurse, and you have been doing that for many years.

1. We spoke today for perhaps one hour.  You had your daughter here, Afsana; and your husband, Eskanda.  I spoke to you and then I spoke to your daughter.  I know that I would have had the chance to speak to the visa applicant, your sister, had I pressed that point.  You tell me that your sister is completely healthy.  You are a 66 year old lady.  You were born in the north of Iran in the area of Rasht.  You told me about Rasht.  You tell me that is where your sister is currently living.  Your father passed away seven years or so ago. 

1. You have two sisters:  one of course being the visa applicant; and the other one who has been living in America for some time.  That is the attraction of you going to the United States, she lives in Oregon.  You have two brothers.  They are both living in the Rasht area, and they are both married.  One, I believe, is retired.  You are the oldest sister. 

1. In relation to your education you studied biology and English at university, and you finished about 35 years ago.  You had been a teacher for a period of time in Rasht.  Whilst you were raised as Muslim you describe yourself as not being religious now at this part of your life.  And you tell me that is pretty much the same in relation to your sister as well, that she is not actively involved in any religion at the moment.  That does not mean to say you do not believe in a god of course. 

1. You have grandchildren.  You married your husband in Iran about 40 years ago.  You have three daughters.  One is 4, one is 40; they both live in Balcatta.  And you have a 36 year old daughter who lives in Scarborough; she is a dental therapist.  You have four grandkids in total.  You have been a dental nurse for about 16 years.  Your husband had been a taxi driver for a fair period of time.  You own your own house, and there may be about $200,000 owing on your mortgage. 

1. You told me about the circumstances as to how you and your husband came to be in Australia, and it seems clear to me, without going into too much detail, that you fled from Iran.  You lived for a period of time in Pakistan.  You were concerned about the safety or security situation in the Rasht area, and happily you obtained entry into Australia. 

1. It seemed from your evidence that at the time or times that you have been back to Iran you have not felt particularly comfortable or particularly safe, and that relates to the current regime and its attitude towards women.  It is very clear that is the true situation in Iran from my own research.  It seems that your husband’s brother was also a refugee as well.  Now, you told me that there were no particular security issues faced by your family; it was the general feel of security at that time.  Your husband had been a businessman involved in import and export in Iran when he was living there.

1. We spoke briefly about your travel: 2009 you had gone back to Iran; 2012 was a trip to the US; 2017 was to Singapore.  And, of course, after that was the COVID pandemic, and it appears you have not left Australia since then. 

1. You told me your sister always came with your mother.  You had taken them to Margaret River.  You had taken them to other places as well.  Your sister also went to university at about the same period of time that you did, and she studied English literature.  She had been a teacher for longer than you, and that was 24 years she taught English.  Your sister has never married.  I thought that was - well, I was not curious, I just wanted to understand why that may have been.  And you told me about an illness she had had when she was only 19 and very sadly that involved the removal of her childbearing capacity.

1. Your sister has always or had always lived with your parents.  Your father had two or three houses and your sister has inherited property through the death of her parents.  You say that she is living on her own and that she has no health issues.  It seems to me that your sister must be pretty fit still because she can do yoga; she does that regularly.

1. You say you felt nervous going back to Iran under the new regime.  You told me that you have had Australian citizenship for a long time.  You have been living here for over 20 years.  Your daughters have never been back to Iran. 

1. I wanted to understand from you as to whether your sister had ever spoken to you or your family about feeling unsafe back in Iran, and you tell me it was not something that really came up in the conversation that often.  Your youngest brother had worked for the government, however, and about 25 years ago he had been placed into a political prison for a period.  You tell me that your sister has had no problems with the regime.  She has been retired.  She has her own pension income and her own property.  I accept that is so.  We spoke about the freedoms or lack of freedom for women in Iran.  There is no right to ask for a divorce and women are forced to wear the hijab. 

1. You tell me that she wants to stay for only three months only.  Of course, I think in relation to your second daughter who I heard from, your sister would not know or have met her child.  Of course, that is important.  You tell me you would be so happy if your sister was able to travel to Australia.  I gave you opportunity to spend some time to convince me that your sister genuinely intends to stay temporarily, and you tell me that she has everything that she needs for her life.  She has her own friends, her property and her own income, that she will pay her way to Australia and back.

1. I spoke to your daughter.  She is married to a gentleman of English/Australian background.  She was only 15 or maybe 16 when she came to Australia.  I think understandably her memories of life back in Iran and perhaps even the last period in Pakistan before coming here, was generally okay, and I think that can be attributed to the mind of a child.  She has very positive memories of your sister coming to Australia, including her grandmother, and I think even your father came at some stage.  I was generally impressed with the evidence of your daughter.  She told me that your sister has had a wonderful life.  She has been travelling, she has gone to the US, Germany, and has currently a void in her life arising from the death of your mother, but she would never want to overstay.

1. So that was all the evidence that I had before me. 

1. I have done my own research in relation to Iran and, of course, it seems to me that a key reason or the key reason for why the visa was refused was because of the delegate’s concerns about the security situation in Iran and how that may have changed since 2017 when your sister was last here.  And I think it is right to think that when you look at the situation generally in Iran as compared to Australia, there are major security concerns in Iran. 

1. But my job is not to look at things generally; my job is to look at the specifics of the situation, and that means that I have looked at the situation in Rasht itself, being your home area, but also there is a need to look beyond the general threats that may be faced.  And what I mean is whilst there may be security issues, safety issues in relation to women and women protesting, and challenging the government and their religion, one has to look at the specific situation faced by the visa applicant, and this is what I have done in this case.

1. The Smartraveller information tells me that Iran does not recognise dual nationality, and I can see that would be of concern for you in travelling back to Iran.  It says:

a.     Protests continue in parts of Iran.  Security forces responses have been severe, and many protestors and bystanders have been injured, killed or detained.  There has been an increase in the number of foreign nationals arrested during protests.  Regional tensions are high and could escalate rapidly.  Regional and international politics can trigger protests.  They can target western or UN diplomatic missions.  Terrorist attacks can happen anywhere in the country, including Tehran.  Women can face unwanted attention and harassment.  If you are a woman, take care if you are travelling alone.

1. But I have to remind myself that that is a warning to the Australian population.  It may not necessarily apply to women who are living in Iran as citizens. 

1. I also looked at a document from the United Nations General Assembly that is titled ‘Situation of Human Rights in the Islamic Republic of Iran,’ report of the Special Rapporteur on the situation of Human Rights in the Islamic Republic of Iran, dated 7 February 2023.  Now, that paints a pretty dire picture.  It sets out the background to the killing of a 22 year old Iranian woman back on 16 September 2022 who died in police custody in Tehran after three days. 

1. Now, her offence was failing to comply with the country’s strict rules on women’s dress while wearing an improper hijab.  There was national outrage across the country and waves of protests with women and young person’s leading the charge under the banner for freedom for women.  Protests quickly spread nationwide, spreading to 160 cities and all provinces.  It gathered all segments of society and all ages and genders.  There is a lot of information in this, I am not going to read out all of it. 

1. So if I took that on face value it would suggest to me that the way the regime has been dealing with women, particularly in relation to the obligations to how they dress and the wearing of the hijab, that there would be incentive for women to seek protection of other countries. 

1. But that is not far enough.  I have got to look at the specific situation in relation to your sister in light of that information.  She is a lady in her 60s.  As far as I am aware, she has led a fairly peaceful life.  She has relied upon her parents to a large extent.  They are no longer here; they are no longer with us.  I would have expected her to be deeply in grief at the moment considering the extent to which she has had a relationship particularly with her mother.  I accept that the situation with the family at the moment is that you are still in grief in relation to the loss of your mother in September last year.  It would be normal for your sister and normal for you to wish to have her wish you so that you can grieve together for the loss of your mother. 

1. When I look at her situation, there is nothing to indicate that she has political connections or that she was in any way involved with those protests, or that she does not comply with what the regime requires.  So I think I can put her situation to one side in relation to that information. 

1. So when I look at everything individually and cumulatively, I am satisfied she is not going to work, she is not going to engage in study or training, she would not be entitled to a protection visa or substantive visa.  I am satisfied that she has proven herself and demonstrated that she can comply with condition of Australian visas.  She has done that four times in the past without issue.

1. I am satisfied as to the purpose for why she wishes to come here.  Of course, there would be an incentive for her not to go back, and that is so that she can wrap herself up in the love of your own family here now that she has lost her mother.  I cannot ignore that, but I have got to weigh everything positive and negative.  And in this case, I have weighed in your favour or in your sister’s favour.  I think it is unlikely, very unlikely, that she would overstay in her circumstances.

1. So in light of that I am satisfied that your sister does genuinely intend to stay temporarily in Australia for the purpose for which this visa is granted, and I do find that the requirements of clause 600.211 are met. I remit the application for reconsideration with the direction that your sister does meet the criteria, and that is clause 600.211 of Schedule 2, and that is the decision.

END OF ORAL DECISION  [12.15 PM]

Michael Judd
Member