Ghanimi (Migration)

[2017] AATA 3119

Ghanimi (Migration) [2017] AATA 3119 (11 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Omid Ghanimi

VISA APPLICANT:  Mrs Maryam Ney Shekar

CASE NUMBER:  1704854

DIBP REFERENCE:  BCC2017/431188

MEMBER:Rosa Gagliardi

DATE:11 September 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 11 September 2017 at 11:59am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream - Whether the applicant is a genuine temporary entrant – Limited ties in home country – Strong incentives to remain in Australia – Whether the applicant is seeking to circumvent offshore application requirements – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Schedule 8, Conditions 8101, 8201, 8503, 8531

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 Immigration on 27 February 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 31 January 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 11 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s putative spouse, Ms Maryam Ney Shekar, by phone overseas.  The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her spouse. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

9. The applicant is the putative spouse of the applicant.  She is an Iranian national.  She was previously married.  The sponsor had also been married previously.  He came to Australia as a boat arrival and was granted protection along with his children from another marriage.  They are 12 and 15 years of age.  After being granted protection in Australia he returned to Iran and married the applicant. 

10. The applicant stated at hearing that he could not sponsor the applicant on a Partner visa because he was not an Australian Citizen even though he was a Permanent Resident; at least this is what his migration agent told him.  He was close to being granted his citizenship after which time he would try to sponsor the applicant.

11. The applicant stated that she could not come to Australia now permanently anyway on a Partner visa because she had her elderly father to look after and she had a job in a bank in Iran.  She simply wanted to be able to come and go from Iran to be able to spend time with the sponsor and his children.

    The sponsor has found it difficult because he considered he was being “punished” for having arrived in Australia as an unlawful entrant in Australia.  As the Tribunal expressed clearly at the hearing, the sponsor’s mode of arriving in Australia was irrelevant to its assessment of whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted – the focus is on the applicant’s intention. 

    cl.600.211(a)

12. 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)).

13. The applicant met the sponsor in Thailand and Malaysia; on one occasion with his children and the other without.  It is claimed that they met in these third countries to enable, it is claimed, the children to become familiar with their new step-mother.  The Tribunal accepts that the applicant has travelled to other countries and did not flout her visa conditions on those occasions.  The Tribunal places some weight in the applicant’s favour in this regard, although the Tribunal notes that she has no family or other affective ties in Thailand and Malaysia.  Ultimately the applicant, it appears, intends to join the sponsor in Australia permanently and the incentive to remain in Australia would be much stronger.  Further, the opportunities for work and the general standard of living could be considered qualitatively different in Australia compared to Thailand and Malaysia as incentives for her to remain there.

    cl.600.211(b) 

14. 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)).

    ·             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.

15. As expressed at hearing, the Tribunal finds the applicant’s claims that she simply wants to keep coming to Australia on an indefinite basis, until her “circumstances change” to be somewhat unrealistic and the Tribunal queries why she would be denying that at the moment she does not want to join her husband permanently, at least in the near future.  This raises questions in the Tribunal’s mind as to whether the applicant is indeed attempting to come onshore to circumvent the requirement that she wait offshore to have her Partner visa processed. 

16. In her Visitor visa application the applicant wrote:

    I want to see my husband and stay with him for 1 month.  I also want to see his children, whom I regard them as my children.  I am not willing to stay in Australia permanently because I need to go back to my job.

17. It seems incongruous that the applicant would want not want, in the medium term at least, to join the sponsor via a Partner visa.  The sponsor, in his capacity as an Australian permanent resident is able to sponsor a spouse so the only impediment to the applicant lodging a Partner visa would appear to be her claims that she has to look after her father and that she has a job in a bank and it does not suit her to come to Australia on a permanent basis now.  The Tribunal has concerns that the reason that the applicant has not lodged a Partner visa, given the time it takes to have these assessed offshore, is because she is attempting to gain an ongoing presence in Australia through this Visitor visa.

18. In his submission to the Tribunal the applicant wrote, among other things:

    …The officer has put little weight on my wife’s relatives in Iran and said that my presence as her husband would outweigh her incentive to return to Iran.  This is not right because if my wife was intending to stay permanently she would not apply for a sponsored visitor visa to Australia and then stay here, but she would apply for a Partner visaand I would sponsor her for a partner visa as well, so we would not go through this way.  But the fact my wife is currently employed in Bank Hekmat Iranian and she is seeking a career with this bank also she does not want to leave her elderly father in Iran permanently as she is emotionally very attached to him.  This is a decision mutually made by both of us that for these two reason she stays in Iran and keep taking care of her father and also achieve her desired positions in her career with Bank Hekmat Iranian.  So, even if my wife wanted to stay permanently in Australia (which she does not want to) she would not ingenuinely apply for a sponsored family visa, but she would apply for a partner visa…

19. The applicant has two siblings living in Iran and it is unclear why the applicant’s attachment to her father would be such that it would prevent her from filing an offshore Partner visa application.  There is little information as to why the applicant’s siblings could not look after their father instead.

20. The sponsor is allegedly living on his own in Australia looking after two teenage children.  The Tribunal would have considered it of paramount importance that the applicant would have tried to come to Australia via an offshore Partner visa as soon as possible to support the sponsor.  The fact that the applicant was vague about when she would join the sponsor in Australia was particularly concerning.

21. The Tribunal accepts that marriages can be conducted long-distance for an indefinite period.  However, the Tribunal did not find the applicant’s reasons for this convincing.  As put to the applicant at hearing, culturally it seemed odd that she appeared to be so indefinite about when she might come to Australia to live with her husband and his children as a family.  It is expected in more traditional societies that spouses should live together upon marriage, barring, of course, situations where an applicant has to wait offshore while a spouse visa application is being processed or some other unforeseen circumstances intervene. 

22. The Tribunal accepts that the applicant may be wishing to look after her father but the Tribunal is not convinced that some other arrangement could not be put in place for his care to free the applicant to join the sponsor in Australia as his partner.  In terms of her work, the Tribunal is also unable to discern why she would prefer to fly in and out of Australia, rather than work towards a permanent visa through a Partner visa offshore.  This is particularly so when her work appears to be a for a contract period, and may not be ongoing.

23. The Tribunal, therefore, has concerns that the applicant may be feigning disinterest in joining the sponsor via a Partner visa because it is her intention to travel to Australia to remain onshore, rather than wait offshore, while her Partner visa is being processed. 

24. The Tribunal is not persuaded that the applicant’s personal circumstances in Iran are such that they represent obvious incentives for her to return there. 

25. The applicant’s family in Iran consists of non-dependent relatives, being her father and two siblings.  While her attachments to her non-dependent relatives are not disputed, it is clear that as the applicant is married to the sponsor, her longer-term commitment will be to the sponsor in Australia.  The Tribunal is not satisfied that the applicant’s affective ties in Iran are so overwhelming and above and beyond those to the sponsor and his young children.

26. The Tribunal accepts that the applicant has submitted a Title Deed for a residential apartment.  The Tribunal places some weight on the fact that the applicant has such an asset that may provide some incentive for returning to Iran, however, the applicant can lease the apartment and if it is her true intention to live with the sponsor in Australia at some future time, then the issue of whether to sell the asset or keep it will arise in any event.  As such, the Tribunal is not persuaded that the existence of the apartment of itself means that the  applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

27. The applicant has also submitted certification that she has worked in a bank since March 2016, although the employer’s letter is silent on whether the applicant has been granted leave and whether she would be paid while on leave.  In any event, the Tribunal accepts that the applicant is working on a fixed term contract with the Bank Hekmat Iranian, even though it is unclear for how long this contract might be for, meaning that there may be no guarantee that the applicant will have permanent work into the future.

28. The applicant’s work record is not particularly extensive meaning that her incentive to return to such work because of superannuation or other benefits accrued would be minimal.

29. The applicant has also submitted “salary invoices” for September 2016 and October 2016, from the bank where she works.  Her net payable salary is 14,010,449 Iranian Rial per month which is roughly the equivalent of AUD522.69.  While relative to salaries in Iran this is not an insignificant amount, such a monthly salary does not compare well to those received in Australia and therefore the Tribunal places only some weight on the applicant’s job as an incentive for her to stay temporarily in Australia for the purpose for which the visa is granted.

    cl.600.211(c)

30. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal has taken into account that the sponsor and applicant wish to spend time together but the fact that the applicant and sponsor have not as yet filed a Partner visa application, leaves the Tribunal querying why this Visitor visa is actually warranted, other than to enable the applicant to gain residency onshore and circumvent the requirements of an offshore application.

31. 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

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

    Rosa Gagliardi
    Member