Hajighasem (Migration)

[2019] AATA 4441

Hajighasem (Migration) [2019] AATA 4441 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Hajighasem

VISA APPLICANTS:  Mr Mohsen Hajighasem
Mrs Giti Akvan

CASE NUMBER:  1806556

HOME AFFAIRS REFERENCE(S):           BCC2017/4684708

MEMBER:Kira Raif

DATE:8 October 2019

PLACE OF DECISION:  Sydney

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

The Tribunal remits the application for Visitor (Class FA) visas for reconsideration, with the direction that the second named visa applicant meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 08 October 2019 at 1:59pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) Sponsored Family stream – genuine intention to stay in Australia temporarily – unpredictable security situation – employment and family incentives both to return or remain in Australia – incentives to return stronger for second-named applicant than for first-named applicant – decision under review affirmed for first-named applicant, remitted for second-named applicant

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.612

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 19 January 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Iran. They applied for the visas on 8 December 2017. The delegate refused to grant the visa on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied each of the applicants genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 8 October 2019 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent.

   Relevant law

4. 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.

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

6. In the present case, the visa applicants seek the visas for the purposes of visiting a family member and visiting Australia. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

7. 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)).

8. 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.

   Do the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted?

9. The review applicant provided to the Tribunal copies of the primary decision records.

10. The visa applicants stated on the application forms that they intended to travel to Australia for a period of two months from January 2018 to visit their son.

11. The delegate referred in the decision record to the country information in Iran and the DFAT report which refers to Iran experiencing an unpredictable security situation including the high level of terrorist attacks, kidnappings and violence. The delegate noted the sponsor’s immigration history and stated that open sources indicate that there are current and ongoing ethnic tensions and violence that continue to potentially affect the people of Iran and may encourage the applicants to remain in Australia after the expiry of their visas. The delegate noted that the visa applicants’ family in Iran is limited to two adult sons, who are non-dependent relatives, and found that their presence in Iran does not allay concerns relating to the security situation in Iran and the migration history of the family in Australia. The delegate acknowledged that the visa applicants had funds in Iran but found that currency was easily transferable and could be accessed from Australia.

12. In his written statement to the Tribunal dated 11 March 2018 the review applicant stated that the delegate’s reasons were unfair and improperly considered. The review applicant stated that his father is an ageing man who runs his own business and is appreciated in his role and the delegate gave no weight to his father’s career and current employment. The review applicant notes that his father has assets including property and his business and it would be unlikely that a man of his age would find a position of equal pay and stability in Australia, which would give him an incentive to return. The review applicant states that his mother is not officially employed but takes care of home duties, which is the traditional role of women in Iran. The review applicant states that his mother does not speak English and is dependent upon her husband and it is not feasible to suggest that her intention is to remain in Australia where his career would cease. The review applicant states that his parents have no intention, nor the means to establish themselves in Australia, given their lack of English, age and a comfortable life in Iran where they have high income and a supportive family network. The review applicant notes that his two brothers in Iran have families, including grandchildren that his parents are heavily involved with. The review applicant states that his own visa application was based on his personal immigration history while his parents had no problems in Iran and it is not relevant to link his personal circumstances to those of his parents. In relation to the situation in Iran, the review applicant states that such situation existed for many years and his parents had the opportunity to remain in other countries they have visited, including Malaysia, India, Dubai and Turkey where they have extended family. They had not breached visa conditions during these visits. The review applicant states that due to his separation, he cannot take his son to travel overseas. The review applicant notes that he is a JP and is a trusted person by the Australian government, he also passed pre-screening tests for his current employment.

13. The review applicant’s representative also provided a written submission to the Tribunal on 10 September 2018, outlining the visa applicants’ circumstances. The representative refers to the applicant husband’s employment, noting that he has strong work commitments, excellent job position and high income. The representative refers to the visa applicants’ family ties in Iran and their past immigration history, noting that they had travelled to other countries between 1999 and 2017 and complied with visa conditions.

14. The representative provided a number of documents to the Tribunal on the evening of 4 October 2019 and a submission outlining claims and arguments on 7 October 2019. As the hearing was scheduled for the morning 8 October – the next working day - such late provision of evidence and arguments has been less than helpful. No explanation is offered by the applicant’s representative for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The Tribunal is mindful that the application for review was lodged with the Tribunal in March 2018 and the applicant was represented by the same agent throughout the process. In the Tribunal’s view, that gave the applicant and his representative ample time to collect and submit supporting documents more than a day prior to the hearing. The applicant was represented by Zara Mavi of Elite Migration Advisers.

15. The review applicant presented evidence of the visa applicants’ employment, professional engagements and appointments, income and savings and their travel history, showing extensive travel between 2009 and 2017. In his submission to the Tribunal of 7 October 2019 the review applicant states that his parents are genuine visitors. The review applicant refers to his father’s work and family commitments and properties in Iran. He states that his mother is a home maker and is dependent on her husband for living costs and has no intention of remaining in Australia longer than her husband. The review applicant states that his parents have only him in Australia and several other relatives in Iran. They have never applied to travel to Australia. The review applicant referred to the reasons he sought a permanent visa in Australia and states that he has not been able to travel to Iran. He states that he has a child in Australia and that is the reason his parents wish to visit him. The review applicant states that his parents have strong ties to their home country and no desire to remain in Australia. The review applicant states that his parents had travelled to several other countries and he had never previously invited them or other relatives to travel to Australia.

16. In oral evidence, the review applicant told the Tribunal that the main purpose of the visit is for his parents to visit his son.  He cannot travel to Iran but can travel to a third country. He cannot take his child out of the country because his ex-wife would not allow it, so his parents have no other opportunity to see their grandchild. He sees his child a few times a week and if his parents come to Australia, he would arrange to see the child more. The visa applicants intend to spend 3-4 weeks in Australia.

17. The review applicant said that hat his father has been involved with the bank for many years. He retired in 2018 and is now running a business (a retail store) and works as a consultant for the banks. The review applicant stated that even though he is partially retired, his father has always loved work and making money, so he has no intention of giving up work. When asked how these professional commitments would be managed during the trip, the review applicant said that his father can do the consultancy work from anywhere while another son can help with the business.

18. The review applicant states that given his parents’ ages, they do not wish to start a new life in a new country. They have more family in Iran than they do in Australia. Given their ages, they would not be able to adapt to the new culture. His father has limited English and his mother does not speak English at all.

19. The review applicant states that his parents have greater incentives to remain in Iran than to stay in Australia. They have brothers and sisters as well as two other children and grandchildren in Iran. One of the grandchildren stays at the visa applicants’ house and they see another grandchild once or twice a week. His mother’s full family live in Iran. Her sister has cancer and the sister’s daughter has just given birth, so his mother helps looks after the baby and has emotional ties.  

20. The review applicant states that his parents travelled extensively and have never breached any visa conditions during these trips. On a few occasions his father travelled without his mother and he does not believe his mother would be able to travel on her own due to lack of English.

21. The review applicant told the Tribunal that he is willing to give a guarantee, and write a statutory declaration as a JP, that his parents would comply with visa conditions. They can pay a security and his father is willing to put up a house as security while he can pay a security of $10,000. The review applicant stated that his own circumstances do not apply to his parents.

22. The Tribunal has considered whether the visa applicants intend to stay temporarily for the purpose for which the visas are granted. 

23. There is no evidence that the visa applicants had previously held an Australian visa and there is nothing to suggest that the visa applicants had not complied substantially with the conditions of any last substantive visa or subsequent bridging visas.

24. The Tribunal has considered whether the visa applicants intend to comply with the conditions to which their visas would be subject. These conditions are set out above.

25. Neither visa applicant had previously travelled to Australia. The visa applicants have not demonstrated compliance with Australian visa conditions and immigration laws in the past. The Tribunal acknowledges that they made several trips outside of Iran in the past twenty years and there is nothing before the Tribunal to indicate they have not complied with immigration laws during these trips.

26. The review applicant claims that his father’s employment and professional commitments would constitute an incentive for him to return to Iran. The Tribunal does not accept that this is so. Firstly, the review applicant’s evidence to the Tribunal is that the consultancy work can be carried out from anywhere while another son helps with the running of the business. Secondly, given the visa applicant’s age, it is likely, in the Tribunal’s view, that he may wish to retire some time in the future. In such circumstances, the Tribunal does not consider that employment would constitute a meaningful incentive for the first named visa applicant to return to Iran. The Tribunal also notes that if the visa applicant were to engage in consultancy work in Australia, he would be in breach of condition 8101. The second named visa applicant is, and has been, unemployed and has no such incentive.

27. The Tribunal accepts that the majority of the visa applicant’s close family are in Iran or outside of Australia. The Tribunal accepts that such family ties may constitute a strong incentive for the visa applicants to return to their home country. The Tribunal acknowledges the review applicant’s evidence that the visa applicants help look after the grandchildren and other relatives. However, the Tribunal is also mindful that the visa applicants have one son and a grandchild in Australia. The review applicant claims that there is greater family incentive in Iran than in Australia as he is the only relative here but in the Tribunal’s view, consideration of the presence of family members is more meaningful if done on the basis of the nature of the links, rather than their number. Thus, the visa applicants may have stronger links to their one son and grandson in Australia than to the multiple family members elsewhere. In this case, the Tribunal accepts that the presence of family members in Iran would constitute a strong incentive for the visa applicants to return to Iran. The Tribunal is also of the view that the presence of a son and a grandchild in Australia may constitute an incentive for the visa applicants to remain in Australia. Nevertheless, the Tribunal accepts that the presence of close family in Iran, and in particular their commitments in looking after young grandchildren, would encourage the visa applicants to return to Iran. Given the first named visa applicant’s professional and employment obligations, it appears that such family commitments are more significant for the second named visa applicant. The review applicant refers to the cultural norms and expectations of his mother staying at home and taking care of the family. The Tribunal finds that the family commitments, and taking care of young children, would constitute a significant incentive for the second named visa applicant to return to Iran but not much of an incentive for the first named visa applicant to return to his home country.

28. The Tribunal has considered the review applicant’s claim that his parents do not wish to establish a new life in a new country, particularly given their lack of English and different cultural norms they are used to. That may be the case, but the Tribunal also notes that they would have family support in Australia from their son and it is not uncommon for people to decide to migrate at any age.

29. Considering the circumstances as a whole, the Tribunal has formed the view that the visa applicants have strong incentives to return to their home country, but also strong incentives to remain in Australia beyond the authorised period, in breach of conditions 8503 and 8531. The Tribunal has formed the view that if the visa applicants were both to travel to Australia at the same time, they would have a stronger incentive to remain in Australia to spend time with their son and grandson – with whom they have limited opportunities to spend time otherwise.

30. With respect to the first named visa applicant, the Tribunal is concerned that he may wish to engage in employment, in  breach of condition 8101, or that he may have a desire to remain in Australia, given his ability to communicate in English and his capacity to perform work in any country. The Tribunal is not satisfied the first named visa applicant intends to comply with the conditions to which his visa would be granted and the Tribunal is not satisfied he meets cl. 600.211(b) and cl. 600.211.

31. With respect to the second named visa applicant, the Tribunal acknowledges the review applicant’s evidence that his mother has always been dependent on her husband and would not wish to live away from him. The Tribunal also places significant weight on her family commitments, in particular, her obligations in looking after grandchildren and other relatives. Her lack of English and cultural considerations may also mean she would have less of an incentive to remain in Australia. On balance, the Tribunal is satisfied that the second named applicant intends to comply with visa conditions.

32. The Tribunal’s consideration of other relevant matters is set out above. For the reasons stated above, the Tribunal is not satisfied the first named visa applicant meets cl. 600.211. The Tribunal finds that the second named visa applicant does meet that provision.

    Conclusion

33. For the above reasons the Tribunal is satisfied that the second named 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 by her.

34. The Tribunal is not satisfied that the first named 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 by him.

    DECISION

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

36. The Tribunal remits the application for Visitor (Class FA) visas for reconsideration, with the direction that the second named visa applicant meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member