Javanmardi Rahat Abad (Migration)

[2018] AATA 2433

Javanmardi Rahat Abad (Migration) [2018] AATA 2433 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ehsan Javanmardi Rahat Abad

VISA APPLICANT:  Mr Rostam Javanmardi Rahatabad

CASE NUMBER:  1722091

DIBP REFERENCE(S):  CLD2017/3671004

MEMBER:Susan Trotter

DATE:25 May 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 25 May 2018 at 2:12pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – Visiting family members – Genuine intention to stay temporarily – Visa applicant could not return to Iran due to religion views – Contradictory evidence – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, Schedule 2, cls 600.211, 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 10 September 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 10 August 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 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 the delegate was not satisfied that the applicant intends only to stay temporarily in Australia. In particular, the delegate considered the visa applicant’s long-term stay and work (21 years) in Oman is only temporary as the visa applicant is a non-citizen of Oman and there is no provision for permanent residence in Oman. Additionally, the delegate was not satisfied that the visa applicant had demonstrated any significant family ties, other than an adult son, to Oman which would induce him to return at the end of the proposed visit. Further, the delegate noted that the current conditions in the visa applicant’s home country (Iran) are factors that might encourage the visa applicant to remain in Australia.

5. The review applicant, one of the visa applicant’s sons, lodged an application for review of the delegate’s decision with the Tribunal on 18 September 2017.

6. The review applicant appeared before the Tribunal on 23 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Oman. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

7. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Clause 600.211 requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Cl.600.221 and cl.600.222 set out the purposes for which a visa in the Tourist stream may be granted.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated purpose, cl.600.211(a) requires consideration of whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa.

11. Clause 600.211(b) also requires consideration of whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The mandatory conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

12. Clause 600.211(c) requires that consideration also be given to any other relevant matters. Department of Immigration and Border Protection (the Department) policy states that relevant consideration of any other matter may include, but is not limited to:

    ·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit

    ·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia

    ·the applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application)

    ·whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with "tourism")

    ·previous immigration and travel history

    ·information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country

13. It follows that the issue to be determined by the Tribunal is whether the visa applicant intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a)Is the purpose of the visa an allowed purpose for a Tourist visa?

    (b)Has the visa applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?

    (c)Does the visa applicant intend to comply with the conditions to which the visa would be subject?

    (d)Are there any other relevant matters?

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the visa applicant intend to stay temporarily in Australia for the purpose for which the visa is granted?

    Is the purpose of the visa an allowed purpose for a Tourist visa?

14. The visa applicant stated in his visa application that he wishes to visit his two sons, his daughter-in-law, his sister-in-law and her children.

15. The Tribunal is satisfied that this is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

    Has the visa applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?

16. Departmental records show that the last visa held by the visa applicant was a Subclass 676 visitor visa (held from 4 February 2009 to 17 April 2009), with the visa applicant having travelled to Australia on 19 March 2009 pursuant to that visa and having departed on 17 April 2009 prior to the visa expiry. There is no evidence before the Tribunal that the visa applicant did not substantially comply with the conditions of that visa. The Tribunal therefore finds that the visa applicant complied substantially with the conditions of his visa, a substantive Subclass 676 visitor visa.

    Does the visa applicant intend to comply with the conditions to which the visa would be subject?

    Are there any other relevant matters?

17. The question as to whether the visa applicant intends to comply with the conditions to which the visa would be subject necessarily also requires consideration of any other relevant matters.

18. The review applicant provided a number of documents to the Tribunal as follows:

    (a)  A Commercial Registration Certificate issued by Invest Easy, Oman, naming the visa applicant as an authorised manager with a registration date of 2 November 2009 which the review applicant told the Tribunal at hearing shows approval for the visa applicant to sign various documents on the behalf of the business he operates in Oman, in circumstances where as a non-citizen of Oman, his Omani sponsor would otherwise have to sign.

    (b)  Registration showing the details of the three shops owned and operated (under sponsorship of an Omani sponsor) by the visa applicant in Oman.

    (c)  Visa Grant Notice in relation to his mother (the visa applicant’s wife) who holds a three year visa to visit Australia, expiring 14 November 2019, being a visa pursuant to which she has travelled to and returned from Australia on a number of occasions.

    (d)  The visa applicant’s previous passport showing extensive overseas travel to a number of countries and showing that the visa applicant has always abided by the rules of various visas granted to him.

    (e)  A bank account statement dated 9 April 2018 showing monthly deposits of salary from Golden Start Optical Oman to the visa applicant’s bank account and further bank account statements of the visa applicant demonstrating his financial security and wealth.

    (f)    A statutory declaration of the review applicant dated 26 April 2018 declaring, amongst other things, that:

    i.     He arrived in Australia on a student visa and was subject to and granted a skilled visa and subsequently permanent residency in Australia;

    ii.His parents are Iranian citizens by birth but have resided in Oman for approximately 40 years;

    iii.The majority of the family are followers of the Baha’i faith;

    iv.His father, the visa applicant, has travelled to Australia on three occasions and never overstayed his respective visas;

    v.The visa applicant owns and operates three optical shops in Oman and has in excess of $21,503 in his bank accounts;

    vi.He has one brother who runs a dental practice in Oman.

    vii.His other brother holds a protection visa in Australia. That brother was not eligible to reside in Oman because of his age and feared religious persecution in Iran because of his religion;

    viii.His parents have no problem practicing their Baha’i faith in Oman;

    ix.His parents have no intention of migrating to Australia and have therefore not applied for a parent visa for which they are eligible, because his father is only able to take short leaves of absence from his business;

    x.His father owns a home in Oman (although registered in the name of an Omani Baha’i citizen);

    xi.His father also has property in India and the United Arab Emirates;

    xii.His father, usually accompanied by his mother, has travelled to many other countries for business and recreational purposes;

    xiii.His mother has had numerous compliant trips to Australia, is the holder of a three year visitor visa which allows three months visits on each trip and plans to return to Australia with his father to visit;

    xiv.He is aware that any breach of his father’s visa conditions will have adverse consequences on his sponsorship rights and his immigration record; and

    xv.He last saw his father about 30 months ago on a joint family reunion trip to Thailand and they miss each other.

    (g)  Documents showing the visa applicant’s registration in India as an Overseas Citizen of India.

    (h)  Australian bank accounts statements of the review applicant supporting his ability to support the visa applicant whilst in Australia.

19. The review applicant’s evidence to the Tribunal included as follows:

    (a)  His father, the visa applicant, last visited Australia in 2009 when he came to Australia with his wife, the review applicant’s mother, for the review applicant’s graduation from a Master in Information Technology and Business Administration. In addition to his mother and father, the immediate family includes an elder brother and a younger brother.

    (b)  His younger brother currently lives in Australia and has been living here for approximately two and half years in Australia. In 2009, his younger brother was living in Jordan and after that studied in Malaysia before coming to Australia. In 2009 his younger brother was 18 years of age and was studying a Bachelor of Optometry. He had previously lived in Oman with their parents. He is a permanent resident of Australia. He was granted a protection visa. He sought Australia’s protection on the basis of his religious prosecution in Iran because of his Baha’i faith.

    (c)  His elder brother lives in Oman with his family, wife and two children. He has lived there since birth. He is a dentist. If you work in Oman you have to renew your visa every two years. His elder brother studied dentistry in the United Arab Emirates and then did his Masters in Jordan before returning to Oman to work.

    (d)  His father is a business owner in Oman. He gets his visa renewed every two years. He owns his own business and has a number of employees. When he ultimately closes his shops and ceases working, his visa in Oman will be cancelled. After that he will go to India because he is registered as a lifelong citizen of India. His parents, the review applicant’s grandparents, went to India from Iran so his father has historical ties to India. He lived in India for many years until finishing University and going to Oman where he has since worked and lived.

    (e)  When queried as to when his father is intending to retire or close his shops, he responded that his father has no current plans to do so. He said that he recently spoke to his father about his plans in that regard and his father is not planning to retire any time soon. He will not do it until he is 70 or 75. When queried he said that he last spoke to his father about that last week. When queried as to how that topic of conversation arose, he said that he asked his father about his plans for future and what he was planning to do.

    (f)    His family in Australia are his wife, his brother, his aunt (his mother’s sister) and her two children.

    (g)  His father’s visitor visa application is a perfectly genuine application.

20. The visa applicant evidence to the Tribunal included as follows:

    (a)  He wants to come to Australia to see his two sons, his daughter-in-law, his sister-in-law and her children.

    (b)  He has been to Australia three times previously. He was last in Australia in 2009.

    (c)  He has three children. Two of them live in Australia. One lives in Oman. The last time he came to Australia 2009, only one of his sons, the review applicant, lived in Australia.

    (d)  He owns and operates three optical shops in Oman and he has a number of employees, seven in total.

    (e)  He would like to come to Australia as soon as possible and for one month.

    (f)    His current plans in relation to working and his business in terms of possible retirement are that he will work for as long as he can. His health is very good. He is now 65. He has not had any discussions with his son, the review applicant, about his retirement plans or the like. He has never discussed that with him. He is not planning to retire. His son, the review applicant, has never asked him what his plans for the future are. He just asks him things like “how is business going?”

    (g)  He actually has nine employees not seven as he stated earlier in his evidence.

    (h)  He has lived and resided in Oman for many years and gets a residence permit, renewable every two years, linked to his work. His understanding is that if there comes a time when he no longer works or owns business in Oman, he would not be not able to renew his residence permit.

    (i)    His youngest son came to Australia approximately two years ago and now has a permanent visa in Australia because the problem with the Baha’i faith is that he cannot go back to Iran, the country of his (and their) citizenship. He is of the same religion, Baha’i, as his son. When asked if he shares a similar concern about returning to Iran as his son, he stated that he could not return to Iran.

    (j)    He has overseas citizenship of India and if anything happens in Oman he will go to India.

    (k)   When the Tribunal raised with the visa applicant its concern that the incentives for the visa applicant to remain in Australia might outweigh the incentives for him leaving Australia, he responded that if he wanted to remain in Australia, he could easily have applied for a permanent parent visa and that would have been much easier for him. He said that he just wanted to visit and then come back (to Oman) as he has done three times before. The Tribunal discussed with the visa applicant that his circumstances are quite different now from in 2009, when only one of his sons lived in Australia and when the visa applicant was nine years younger. He stated that his intention is just to visit.

    (l)    His ties to India are much stronger than to Australia. He has cousins and other relatives there and also owns property there.

    (m) In response to a suggestion that the cost and waiting time in applying for a parent visa might be quite significant compared to applying for a protection visa, as his son has done, the visa applicant responded that his intention is just to visit and that is it.

21. Following the visa applicant’s evidence the Tribunal put to the review applicant[1] information that was before it, that is the oral evidence of the visa applicant to the Tribunal, that the visa applicant had stated that he had not had any discussions with the review applicant regarding his retirement plans or the like. The Tribunal noted that the reason that information was relevant was that it was in direct contradiction to the review applicant’s evidence to the Tribunal that he had discussed that issue with his father, the visa applicant, a week ago. The Tribunal indicated that that inconsistent evidence might cause the Tribunal to question what evidence can be relied upon or believed, and might cause the Tribunal to question whether his father is intending to retire at 70 or 75 or might be looking to retire earlier, which might be an additional incentive for him to remain in Australia other than temporarily.

    [1] Pursuant to section 359AA of the Act.

22. The review applicant indicated that he understood the information and its relevance and that he wished to respond to that information. He stated that his father does not always remember the full information. By way of example, he initially stated that he has seven employees and then later corrected that to nine employees just because running three stores he is busy. He said that they have always talked about the fact that he never wants to retire until he can and that he would push himself to go (on working). The Tribunal suggested that given the review applicant’s evidence that he had only discussed this matter with his father as recently as last week, it might concern the Tribunal as to what it could believe.

23. The Tribunal accepts that the visa applicant might have a temporary lapse in memory as to the number of his employees. However, the Tribunal considers that a very different situation to the different evidence given by the review applicant and the visa applicant in relation to the visa applicant’s retirement plans, if any, and whether that topic has been the subject of conversation between them. The inconsistency in the evidence before the Tribunal in this regard is of considerable concern to the Tribunal as to what can be believed of what those plans or intentions might be particularly in circumstances where such matters are, in the Tribunal’s view, of significant relevance to the incentives that the visa applicant might have to remain in Australia, other than temporarily, given his unique circumstances of having no right of residency, upon retirement, in his country of residence. This is particularly of relevance given his age of 65 years, an age when retirement plans might usually be considered, even if not yet acted upon. It follows that the visa applicant’s current circumstances, and the incentives that he may have to remain in Australia, are quite different to his circumstances when he last visited Australia nine years ago.

24. At hearing the Tribunal discussed all the matters raised by the review applicant in his statutory declaration, however indicated that it nonetheless holds concerns in relation to whether the review applicant’s father, the visa applicant, genuinely intends to remain temporarily in Australia. In particular, the Tribunal raised with the review applicant that notwithstanding compliant travel to Australia in 2009 and earlier, now at 65 years of age, it might be considered that his father is at a different stage in life and might be looking to retire or semi-retire and in those circumstances a number of matters might weigh against a genuine intention to remain temporarily in Australia. Those factors include that the majority of the visa applicant’s children live in Australia, that the review applicant has no right of permanent residency in Oman despite his extended residence there and that the review applicant could fear returning to his country of citizenship, Iran, on account of his religion views, as has been the case of the review applicant’s brother who has been granted a protection visa in Australia on that basis.

1. The review applicant’s representative made oral submission to the Tribunal including as follows:

   (a)  The visa applicant has citizenship of India and as such would be ineligible for a grant of protection in Australia as he will be assessed as having citizenship in India and therefore a right to re-enter and reside in another country other than Iran. Further, all available country information supports that the visa applicant would not be successful in obtaining a protection visa if his claims were assessed against India as they would be required to be given he holds overseas citizenship of India.

   (b)  It makes no difference how many of his sons resided in Australia in 2009 as he has an impeccable immigration history and history of compliance with all of his visa conditions. There has been no change of circumstances in his life since then, only a change in the circumstances of his youngest son’s life.

   (c)  His three sons are all professionals and earn very very high incomes. There would be no difficulty in the visa applicant applying for a parent visa if he chose to do so and he has been eligible to apply for that for over two years, with the waiting time then being two years such he could have had a parent visa by now if he did wish to remain in Australia. The visa applicant is a most bona fide applicant for a visitor visa.

   (d)  Iranian men do not really retire. That concept is alien to them. The visa applicant has a very good life in Oman and has no intention of retiring.

   (e)  During the processing time for a protection visa or the like, even if he did apply for it, the visa applicant could instead be making hundreds of thousands of dollars in his country of residence as opposed to being in Australia generating no income.

   (f)    Even if the visa applicant was looking to retire, it would be the last thing on his mind to seek a protection visa as he would not have a chance of it being granted. He has been transparent in his intention and it is a genuine application.

2. The Tribunal acknowledges that the visa applicant is registered as an overseas citizen of India. However, even accepting the visa applicant’s current right to reside in India, would likely mean the inability to lodge a valid protection visa application in Australia and/or be granted protection in Australia (notwithstanding his Baha’i and Iranian citizenship and associated fears of persecution in Iran), the Tribunal remains concerned that the visa applicant’s personal circumstances are significant incentives for him to remain in Australia. Two of his three children live in Australia. He cannot return to Iran because of his religious views. Despite holding status as a registered overseas citizen of India and ownership of property in India, he has not lived there for over 40 years and no members of his immediate family live there. He is approaching retirement age and it is disingenuous to suggest that thought has not been given to his retirement, whether undertaken voluntarily or involuntarily for health or other reasons, particularly in circumstances where retirement for him will mean loss of the right to reside in his country of residence for over 40 years. Further, whilst the visa applicant has previously visited Australia pursuant to a visitor visa and complied with the conditions of that visa, his personal circumstances, for the reasons canvassed, are significantly different now in 2018, to his personal circumstances in 2009.

3. The Tribunal acknowledges that the visa applicant would miss his family in Australia and it is understandable that he would wish to visit them. However, as occurred 30 months ago, although not necessarily always desirable from the review applicant’s and visa applicant’s and their family’s point of view, reunions can occur outside Australia.

4. The Tribunal took into account all of the matters canvassed and all matters raised by the review applicant and visa applicant, and also the submissions made by the review applicant’s representative. However, having taken all matters into account, the Tribunal considers the visa applicant’s incentives to remain in Australia outweigh his incentives to depart Australia.

5. 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.

   OTHER MATTERS

6. The Tribunal observes that the review applicant’s representative attended the hearing by telephone and that it was subsequently discovered that for approximately 10 minutes during the review applicant’s evidence, the telephone line to the review applicant’s representative had “dropped out”. When this was detected the Tribunal immediately re-connected to the visa applicant’s representative and canvassed the evidence of the review applicant that had been given during the representative’s period of disconnection. Towards the end of the hearing, the Tribunal canvassed with the review applicant’s representative whether they wished to obtain an audio of the hearing and be given additional time to raise any matters arising out of the matters canvassed during the time they were disconnected, or additional time for any other reason. This offer by the Tribunal was declined.

   DECISION

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

   Susan Trotter
   Member