Hosseini (Migration)

[2019] AATA 2552

Hosseini (Migration) [2019] AATA 2552 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mustafa Hosseini

VISA APPLICANT:  Mr Seyedali Hosseini

CASE NUMBER:  1730856

HOME AFFAIRS REFERENCE(S):           BCC2017/4149611

MEMBER:Paul Windsor

DATE:11 June 2019

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 June 2019 at 11:31am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream–genuine temporary stay criterion – failed to attend tribunal hearing – insufficient evidence regarding employment and financial circumstances –poor economic opportunities in Iran– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 30 November 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 7 November 2017. 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. 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, noting the visa applicant had no immediate family members such as a spouse or children in Iran and claimed to be self-employed but provided no evidence of his employment or regular income, and given the current economic situation in Iran, the delegate was not satisfied that the visa applicant genuinely intended to visit Australia only.

5. On 16 May 2019 the Tribunal wrote to the review applicant advising him that it had considered the material before it but was unable to make a favourable decision on this information alone.  The review applicant was invited to appear before the Tribunal on 11 June 2019 at 10:00 am to give evidence and present arguments.

6. The review applicant was advised that if he did not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before the Tribunal.  He was advised that if he is not able to attend the hearing he should advise the Tribunal as soon as possible, and he should note that the Tribunal will only change the scheduled date if satisfied that he has a very good reason for being granted an adjournment, and if the Tribunal does not advise him that an adjournment has been granted he must assume that the hearing will go ahead.

7. The review applicant was also sent SMS messages to the mobile phone contact number provided in his review application on 3 June and 7 June 2019 reminding him of the upcoming hearing.

8. No further advice was received from the review applicant and he did not attend the hearing scheduled for 10:00 am on 11 June 2019. 

9. Having considered the circumstances of this matter including that the review applicant failed to attend the hearing at the scheduled time and date, and has not sought to otherwise engage the Tribunal to seek a change in the time and date of the hearing or to explain his failure to attend the hearing, the Tribunal decided to exercise its discretion to make a decision on the review without taking any further action to allow or enable the review applicant to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

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

13. 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)).  As the visa applicant has not previously held an Australia visa this criterion is not relevant in his case.

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)). 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.

15. It is claimed that the visa applicant is self-employed in ‘real estate’.  A photograph has been provided in support of the review application of the visa applicant sitting in a small office, as well as a bank statement indicating a balance at 4 December 2017 of 744,578 Iranian Rial (the equivalent of approximately AUD 25).  The bank statement does not indicate, however, whether it is an account held by the visa applicant, but states the customer’s name as ‘q q’.  Given the limited evidence provided regarding the visa applicant’s work and financial circumstances in Iran, the Tribunal finds it cannot be satisfied that the visa applicant would not work in Australia in breach of condition 8101 if granted the visa.

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  In this regard the Tribunal has considered advice from the Department of Foreign Affairs and Trade (DFAT) regarding the economic and security situation in Iran.[1]  Relevant information is summarised as follows:

    ·Income and wealth inequality is pronounced: while the country has seen the growth of a consumerist culture since the early 2010s, reflected in increased consumption of high- end luxury items, the cost of living for ordinary Iranians has steadily increased over the last decade.

    ·An estimated 40 per cent of Iranians live below the World Bank defined moderate poverty line of less than US$3.10 per day. According to a June 2017 survey, 63 per cent of respondents said the economy was bad, 50 per cent said economic conditions were worsening, and 70 per cent said the nuclear deal had not improved people’s living conditions. The Rouhani government has had some economic successes, particularly in curbing inflation (which reached nearly 40 per cent in 2013). Prices have nevertheless continued to rise at approximately 10 per cent per annum.

    ·In March/ April 2018, the rial hit historic lows against major foreign currencies as investors stocked up on hard currency as a hedge against a growing economic uncertainty, particularly the looming threats to the JCPOA. In response, the Central Bank of Iran announced a new mandatory fixed exchange rate against the US dollar after a range of earlier (and more moderate) measures failed to halt the rial’s slide. According to the government, the new mandatory rate unifies the long-standing separate ‘official’ and ‘market’ rates. Analysts remain sceptical that it will succeed in doing so.

    ·Unemployment is causing economic difficulty and social unrest. The economic growth that followed the JCPOA has not translated into significant job creation. The Ministry of Economic Affairs and Finance reported that unemployment in 2017 was 12.4 per cent, up from 11 per cent the previous year; while the Interior Minister reported that unemployment in some sectors of the population was as high as 60 per cent. Government figures are likely to understate the true unemployment rate, as the government considers anyone who works for an hour a week to be employed. Approximately half of the Iranian workforce is in irregular employment, which leaves them vulnerable to exploitation.

    ·Unemployment rates vary markedly between provinces. Youth unemployment is of particular concern given that roughly half of all Iranians are aged under 30. According to the International Labour Organization, more than a quarter of Iranians aged between 15 and 24 were unemployed in 2017. Iran has one of the world’s lowest labour participation rates for women: in 2016-17, only 14.9 per cent of women had paid employment. Many of the unemployed, both men and women, are university graduates.

    ·DFAT assesses that frustration over the state of the economy was a key driver of the December 2017-January 2018 protests; and that poor economic opportunities act as a significant ‘push factor’ for emigration from Iran.

    ·Terrorist groups have conducted attacks in Iran, particularly in the eastern Sistan-Baluchistan province. These attacks have mainly targeted Iranian security services and national symbols, but also civilians on occasion. In June 2017, terrorists conducted simultaneous attacks in Tehran on the parliament building and the Imam Khomeini Shrine, killing 18 people and leaving dozens more injured. The attacks, carried out by a suicide bomber and by gunmen disguised as women, were the first to occur in Tehran in more than a decade. The Islamic State terrorist organisation claimed responsibility.

    ·Large-scale anti-government protests and demonstrations have occurred in various areas of the country in recent years, leading to fatalities and injuries. Demonstrators have periodically targeted foreign diplomatic missions and UN agency headquarters. The most recent serious attack of this nature occurred in January 2016, when protesters stormed the Saudi Embassy in Tehran and a Saudi Consulate in Mashhad, setting the building on fire and ransacking offices. The attacks followed the execution in Saudi Arabia of a prominent Shi’a cleric. In November 2011, protesters stormed the British Embassy and another diplomatic compound in Tehran, ransacking offices and stealing documents. In both cases, the government expressed regret for the violent actions but did not prosecute any offenders.

    [1] DFAT, Country Information Report, Iran, 7 June 2019.

17. The Tribunal finds that the country information indicates that economic conditions in Iran, including wealth inequality, poverty levels, inflation and unemployment/underemployment are concerning.  The Tribunal notes DFAT’s assessment that poor economic opportunities act as a significant ‘push factor’ for emigration from Iran.  In light of this information and the lack of detail provided regarding the visa applicant’s employment and financial circumstances, as noted above, the Tribunal finds better economic opportunities in Australia could well act as push factor for the visa applicant to work in breach of condition 8101 and/or overstay his visa if granted an Australian Visitor visa.

18. Accordingly, 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

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

    Paul Windsor
    Member