Mehdizadeh Dasjerdi (Migration)

[2022] AATA 1045

Mehdizadeh Dasjerdi (Migration) [2022] AATA 1045 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Mahna Mehdizadeh Dasjerdi

VISA APPLICANT:  Mrs Nayereh Mohammad Salehi

CASE NUMBER:  2003413

HOME AFFAIRS REFERENCE:               BCC2020/344083

MEMBER:L. Symons

DATE:14 January 2022

PLACE OF DECISION:  Sydney

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 14 January 2022 at 4:25pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – visit her daughter – personal, business and property ties in home country – financial capacity to live a comfortable life in Iran – credible witnesses – the visa applicant genuinely intends to stay temporarily in Australia – positive migration history – good international travel history – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 Home Affairs on 18 February 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied to the Department of Home Affairs (the Department) for the visa on 7 February 2020. 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 (Cth) (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 was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 21 February 2020, the review applicant applied to the Tribunal for a review of those decisions.  

5. The review applicant appeared before the Tribunal on 3 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 a family visit. (She is the mother of the review applicant). This is a purpose for which a visa in the Tourist stream may be granted.

9. 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.

10. The records of the Department indicate that the visa applicant arrived in Australia on 16 March 2013 as the holder of a subclass 676 Visitor visa that was valid until 16 June 2013. She departed Australia on 4 April 2013. There is no evidence before the Tribunal to indicate that she did not comply with the conditions of her visa.

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·8101 – must not work in Australia (mandatory condition)

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

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia (discretionary condition)

    ·8531 – must not remain in Australia after end of permitted stay (discretionary condition)

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that she is employed as an engineer in the oil and gas industry on a full time permanent basis. She has been in her current job since April 2019 and earns a gross annual income of $200,000.00. Her partner is a dentist and owns a half share in a dental practice. His gross annual income is between $180,000.00 and $190,000.00. They own a house in Perth which is subject to a mortgage and two cars that are unencumbered. They have savings of approximately $220,000.00 in an offset account. They have no dependants.

13. The review applicant gave evidence that the visa applicant is 65 years old. She is a retired teacher and receives a pension. Her father passed away in November 2018 and the visa applicant has been receiving his pension as well since then. She owns several properties and is financially well off. She owns a house in Tehran, a villa and an apartment in her hometown and a summer house in a village not far from her house. She also inherited land from her father. She has savings of approximately 5 million rial and has no debts.

14. The review applicant gave evidence that she will provide the visa applicant with accommodation and offer her her hospitality in Australia. The visa applicant is a proud person and will insist on paying for her airfare and spending her own money. She will bring enough money with her to buy what she wants including souvenirs. She has no intention of working in Australia. She does not have (Australian) qualifications or skills and does not speak the language. She has no desire or incentive to study or undertake any training in Australia.  

15. The visa applicant gave consistent evidence. She stated that she receives two pensions; her own and her husband’s pension. She owns an apartment in Tehran and an apartment in Ramsar. She also owns two summer holiday houses. She owns farming land where she cultivates rice and citrus trees. She has no debts. She will pay for her airfare and expenses when she visits Australia. She will also bring about $10,000.00 in spending money. On her last visit she brought $20,000.00. She has no intention of working, studying or undertaking any training in Australia.

16. The Department was provided with documents including the visa applicant’s passport, bank statements from the Bank Sedarat Iran, National Identity Card, Title Deed, letter indicating an increase in her retirement salary in relation to her Civil Servants Retirement Fund and the review applicant’s payslips. The Tribunal was provided with copies of the documents previously provided to the Department.  

17. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the proposed length and purpose of her visit to Australia and her personal circumstances. In her application for a Visitor visa, she stated that the proposed period of stay was up to 3 months. The proposed dates were to arrive on 13 March 2020 and depart on 2 April 2020. The reason for her visit was to spend the Persian New Year with her daughter in Australia.

18. The review applicant gave evidence that the visa applicant would like to visit Australia for about 3 weeks. Her last visit to Australia was for 3 weeks. She is not familiar with the western lifestyle and cannot speak English. She knows she will be bored if she extends her visit. Even when she visited her brother (in Denmark) she stayed there for 3 weeks or 20 days even though she had a longer visa. She knows they have to get back to their routines and life. That is why she does not want to stay longer. She just wants to spend some time with her and her partner.

19. The review applicant gave evidence that she applied for Visitor visas for the visa applicant and her sister and brother in the hope that they could all spend the Persian New Year in 2020 together in Australia. Her sister and brother were granted the visas but did not come to Australia. Her sister did not want to come here without their mother and her brother also did not come here after their mother’s visa was refused. Then the Covid pandemic happened. The visa applicant does not have any specific plans for her visit to Australia. She is leaving it up to her to organise the holiday. She would like to show her around as she did during her previous visit. The visa applicant does not want to explore by herself. Her main fear is the language.

20. The review applicant gave evidence that her father passed away in November 2018. She travelled to Iran and stayed there for 40 days to sort out some matters and to support the visa applicant and her siblings. This was the last time she physically saw the visa applicant. Her older sister lives in Tehran in Iran. She is married and has no children. She is a qualified dentist and has her own business. The visa applicant is from a big family. She has four sisters, three brothers (one passed away) and lots of nieces and nephews. After her father’s death, the visa applicant moved back to Ramsar in the north of Iran. She has brothers and sisters who live there and has an attachment to the area. A different dialect is spoken there and she feels more comfortable speaking that dialect and living in a small town. They had previously lived in Ramsar and only moved to Tehran because of her father’s job. After her father passed away, she needed to heal herself.

21. The visa applicant gave evidence that she wants to come to Australia to visit her daughter and wants to stay for a maximum of one month. When asked whether she had any plans for her visit, she responded that catching up is always a blessing. It is blessed to see her daughter, have fun and spend quality time together.

22. The Tribunal has considered other relevant matters. The review applicant gave evidence that her younger brother lives in Denmark. Her parents travelled to Denmark in 2015 to visit him. In 2019, the visa applicant travelled to Denmark again to attend her younger brother’s wedding and to explore Europe. She has also travelled to several other countries such as Turkey, Armenia, Russia and Malaysia. She has never been refused a visa to any country other than Australia.

23. The review applicant gave evidence that the visa applicant is generally in good health. She has high blood pressure for which she takes medication. It is under control. She also has a calcium deficiency for which she takes a supplement. She has regular medical check-ups. She is an active person and walks a lot. She has been very careful during the Covid pandemic and, like many Iranians, is isolating to avoid getting Covid.

24. The Tribunal asked the review applicant how the Covid pandemic has impacted on the visa applicant. She responded that she is living in her hometown in a house by herself. She has no dependants who are commuting. She has managed to fully isolate herself and is not seeing anyone. Mentally it is concerning but she is trying to be strong. She tries to stay positive when talking to them because she does not want to concern them but it is not easy being on her own. One of her brothers passed away from Covid. It would be difficult to find anyone in Iran who is not impacted by Covid but things are getting better. She has been vaccinated and will be eligible for her booster at the end of the month.

25. The Tribunal asked the review applicant how the security, political and economic situations in Iran have impacted on the visa applicant. She responded that the visa applicant has a “zero profile” in political affairs. She has her own life and her family have never been involved in political situations. The only impact on her is by watching the news and talking to people. She lives in a small city and not impacted by security or political situations. There is inflation in the economy. This is not something new. The delegate made a general statement (about the economy) in the decision but not everyone in Iran is living in poverty. The economic situation has not impacted to the level that she cannot live her life. She is on a good pension. The money she receives is far more than she needs. During Covid people are not travelling or spending money. The economy has not impacted on her life.

26. The Tribunal asked the review applicant what incentives the visa applicant has to return to Iran at the end of the holiday. She responded that the visa applicant intends coming to Australia to visit her and will do so regardless of where she is. The Persian New Year is the biggest event for reunion as it is all about family. That is her incentive. She has not seen her since November 2018 and that is a long time. She misses her and wants to see her. She wanted to get together with all her children. She never planned to leave her country. This is how people live.

27. The review applicant stated that the perception is that everyone in Iran is trying to get out of there. That is not the case. For the review applicant doing so would be a significant change in her lifestyle and she would not be able to adapt. Culturally it is so strange for her. She asked her to learn some English but she resisted and cannot change. Financially she cannot abandon her properties as there is no one to take care of them. She questioned what she would do in Australia. She and her partner get home at 6.00pm. She cannot drive a car or connect with neighbours. That is not what she wants in her mid-60s. It was never her plan to leave her home country. She could not adapt to the lifestyle in Tehran and returned to her hometown 2 months after her husband passed away.

28. The visa applicant gave consistent evidence. She stated that she is in good health and has a bit of (high) blood pressure for which she is on medication. When asked how the Covid pandemic in Iran has impacted on her, she responded that she has not been (personally) impacted but her brother got Covid and passed away 10 days ago. When asked how the economic and political situations in Iran have impacted on her, she responded that she has luckily not been affected. She has “affordability”. Politically, she is not involved or engaged so she is living a normal life. The security situation has not impacted on her either.

29. The Tribunal asked the visa applicant what incentives she has to return to Iran at the end of the holiday. She responded that she is “rooted” in Iran. She has sisters, brothers, relatives, friends and colleagues in Iran. She loves her country and cannot stay in Australia.

30. Having considered all the evidence, the Tribunal finds that the review applicant and the visa applicant are credible witnesses. The Tribunal accepts that the visa applicant’s income and assets provide her with the financial capacity to live a comfortable life in Iran and to travel overseas. The Tribunal accepts that she has the financial capacity and the desire to pay for her airfare and expenses in Australia. The Tribunal accepts that the review applicant will provide her with accommodation and pay for her expenses in Australia. The Tribunal accepts that the visa applicant does not speak English and has no intention of working in Australia or engaging in any study or training in Australia. Therefore, the Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 of her visa.

31. The Tribunal accepts that the majority of the visa applicant’s family live in Iran. The Tribunal accepts that after the death of her husband in 2018 she left Tehran and moved back to her hometown at Ramsar. The Tribunal accepts that some of her siblings, friends and colleagues live in Ramsar and she feels more comfortable living in a smaller town and speaking the local dialect. The Tribunal accepts that her income and assets enable her to have a comfortable lifestyle. The Tribunal accepts that the economic, political and security situation in Iran has had a minimal impact on her lifestyle. The Tribunal accepts that she is generally in good health and that her high blood pressure and calcium deficiency are treated by medication and supplements respectively.

32. The Tribunal accepts that the visa applicant misses the review applicant and wants to visit her and her partner in Australia and celebrate the Persian New Year with them. The Tribunal notes that she previously visited them in 2013 and departed Australia after almost 3 weeks despite having a Visitor visa that was valid for 3 months. The Tribunal accepts that she has previously visited her son in Denmark on two occasions and left Denmark before her visas expired. The Tribunal accepts that she has no intention of living here permanently and that her incentives to return to Iran outweigh her incentives to remain in Australia after the end of her permitted stay. Therefore, the Tribunal is satisfied that the visa applicant will comply with conditions 8503 and 8531 of her visa.

33. For the above reasons, the Tribunal is 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 met.

    DECISION

34. 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.

    L. Symons
    Member