Pirhaghshenasvali (Migration)

[2024] AATA 74

Pirhaghshenasvali (Migration) [2024] AATA 74 (18 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Masoud Pirhaghshenasvali

VISA APPLICANT:  Ms Shima Pirhaghshenasvali

CASE NUMBER:  2217429

HOME AFFAIRS REFERENCE(S):          BCC2022/4119368

MEMBER:Paul Windsor

DATE:18 January 2024

PLACE OF DECISION:  Melbourne

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 18 January 2024 at 11:44 am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – previous compliant family visits – balance of family in home country – studies and family business in Iran – political and economic situation in Iran – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 4 November 2022 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 for the visa on 1 October 2022. 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. In their decision record, the delegate indicated they refused to grant the visa because they were not satisfied the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.

5. In reaching this conclusion, the delegate commented that they had considered the visa applicant’s personal circumstances in the context of the current situation in Iran, which is experiencing substantial security, political and economic issues. The delegate indicated they were not satisfied that the visa applicant has sufficient family, work and financial ties in Iran to outweigh the inducement for her to use a Visitor visa as a means of obtaining entry to Australia for the purpose of applying for a different visa to allow ongoing residence in Australia.

6. The review applicant sought review of this decision on 28 November 2022. He provided the Tribunal with a copy of the delegate’s decision record.

7. The review applicant appeared before the Tribunal on 17 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Iran. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

11. 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)).

12. The evidence before the Tribunal indicates that the visa applicant previously was granted a subclass 600 Visitor visa on 12 March 2018, permitting a single entry and stay in Australia of up to 3 months. The visa applicant entered Australia on 17 March 2018 and departed on 25 April 2018, five and a half weeks later. There is nothing to indicate or suggest the visa applicant beached the conditions of this visa (conditions 8101 and 8201 applied).

13. 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.

14. The visa applicant is a 35 year old woman from Shiraz in Fars province, Iran. She has never married. As well as her brother in Australia she has her parents and a brother in Iran.

15. The evidence before the Tribunal, discussed with the visa applicant at the hearing, indicates that she lives with her parents and works as a technical expert for a family owned company, Aria Power Expansion Company, of which she is also a board member (since 2012). Her father is the chairman of the board of this company. The visa applicant holds a Master’s degree and is now undertaking a PhD in Electrical Engineering – Electronics, comprising coursework and preparation of a Thesis/Dissertation. She commenced the coursework in 2016/17 and is now completing the final year of her Thesis/Dissertation. She indicated at the hearing that the family company is a subcontractor to the state Electricity Department with a focus on the distribution of supply through the electricity network. She indicated the company has 8-10 employees including casuals. She indicated she draws a salary equivalent to approximately AUD 1200 per month and has savings equivalent to approximately AUD 8000.

16. The review applicant, who is an Australian citizen, indicated he came to Australia in August 2014, as a dependent on his wife’s Student visa. His wife completed her PhD in Landscape Architecture in Australia and then she and the review applicant gained permanent residence through a subclass 190 Skilled Nominated visa. The review applicant is now running his own business selling children’s and educational books while his wife is working for a local government council. The review applicant’s wife gave birth to twins (a son and a daughter) on 2 February 2023.

17. The visa application was made in October 2022 with a view to the visa applicant coming to Australia for up to 12 months with her parents to provide support to the review applicant and his wife in relation to the birth of their twins. While the visa applicant was refused a visa, the review applicant indicated his parents were granted Visitor visas permitting multiple stays of up to twelve months in each 18 month period, valid until 2025. He indicated their parents visited for six months and returned to Iran, then returned to Australia in November 2023 for a further stay of 7-8 months.

18. The review applicant is in the final year of her PhD. She indicated that, if granted the visa, she would like to stay in Australia for 6-9 months to see her brother and his wife and their new family and assist with the care of their twins. She also wishes to work on her PhD thesis, which she will present on her return to Iran.

19. Considering the available evidence, which confirms the visa applicant and her family members have complied with visa conditions in the past and that she has significant ties to Iran (including her significant professional role in the family business and her PhD studies which have been ongoing since 2016/17), the Tribunal is satisfied that the visa applicant would comply with conditions 8101 and 8201 if granted the visa.

20. The Tribunal considers that the key consideration in this matter is whether the visa applicant would seek to remain in Australia after the end of the permitted stay period. In considering this factor, the Tribunal has also had regard to any other relevant matters (cl 600.211(c)), as discussed below.

21. At the hearing the Tribunal discussed with the visa and review applicants excerpts from the current Department of Foreign Affairs and Trade (DFAT) Country Information Report on Iran.[1] The Tribunal noted the report indicates, inter alia, that:

    [1] DFAT Country Information Report, Iran, 24 July 2023, sections 2.9-2.15 and 2.105-2.109.

    ·Following the restoration of Western sanctions in 2018, the International Monetary Fund (IMF) estimated Iran’s economy contracted by 9.5 per cent in 2019, following a 4.8 per cent decline in 2018.

    ·Cost of living pressures, including removal of subsidies for staple foodstuffs, have been the subject of protests.

    ·According to the World Bank, the inflation rate was 40 per cent in 2019, and in May 2023, the Financial Times reported it may be up to 50 per cent.

    ·Wages have not kept up with inflation. People in professions such as teaching and nursing, as well as those working in industry and blue-collar workers, joined protests in 2022 against unaffordable food, stagnant wages and falling standards of living. Many employed Iranians struggle to afford basic needs.

    ·Because of currency instability, many more affluent Iranians invest in illiquid assets such as property or motor vehicles and others in gold or hard currency. This has further fuelled inflation. Younger Iranians have also invested in cryptocurrency.

    ·DFAT assesses that economic hardship was the primary driver of countrywide protests in December 2017, January 2018, and November 2019.

    ·Local sources told DFAT that economic conditions, particularly following the reimposition of US sanctions, make emigration strongly desirable for many Iranians. DFAT assesses that current economic conditions in Iran are challenging, and economic incentives act as a key ‘push factor’ for emigration for most Iranians.

    ·On 16 September 2022, a significant protest movement began following the death of 22-year-old Kurdish-Iranian woman, Mahsa Amini, while in the custody of Iran’s morality police. Amini was arrested in Tehran for breaching the strict Islamic dress code by allegedly not wearing the hijab appropriately.

    ·The protests, initially led by women and girls, took place across the country. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They have evolved into broader protests against the regime.

    ·The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences, and in some instances, the death penalty.

22. The Tribunal observed that the current political and economic circumstances in Iran may provide a reason for not wishing to return there. The review applicant commented that they can’t do anything about the situation in the country and added that the timing of the pregnancy was out of their hands. He commented further that his sister’s only intention in seeking to come to Australia was to see the twin babies and provide help to him and his wife at what is a challenging time for both of them, seeking to manage the demands of being first-time parents with twins and work commitments to ensure they can continue to meet mortgage payments on their home. The review applicant stressed that his sister has visited Australia before and abided by the conditions of her visa. He added that when he and his wife came to Australia they also respected all the visa conditions and they seek to do their best and respect what the law asks of them. He noted that his sister has spent 8 years on her PhD and has a strong incentive to return to Iran, finish it and present it to the university there. He added that, if one day she decided she wants to live in Australia, she will apply for an appropriate visa.

23. The visa applicant commented that the current situation in Iran has no impact on her complying with the visa if it was to be granted. She stressed that her intention is just to visit to see her brother and his family as she has done before and she has no intention of using the visit to seek to remain in Australia permanently.

24. The Tribunal found the review and visa applicants to be frank and heartfelt in their evidence.  The Tribunal gives significant weight to the visa applicant’s past compliance and the compliance of her parents with the conditions of their visas, as well as her role in the family business and need to return to Iran to fulfil the requirements to obtain her PhD. The Tribunal considers that the visa applicant is less affected by the current political and economic circumstances in Iran than many other Iranians.

25. Considering the available evidence and notwithstanding the difficult situation in Iran currently, the Tribunal finds that the visa applicant has significant financial, employment and personal ties to Iran and is satisfied she will depart Australia prior to the expiry of the visa.

26. 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

27. 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.

    Paul Windsor
    Member