Rostami Dehbaneh (Migration)

[2023] AATA 576

Rostami Dehbaneh (Migration) [2023] AATA 576 (15 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Shahla Rostami Dehbaneh

VISA APPLICANT:  Ms Sharareh Rostami Dehbaneh

REPRESENTATIVE:  Dr Mehdi Soodi (MARN: 2016060)

CASE NUMBER:  2210739

HOME AFFAIRS REFERENCE(S):          BCC2021/632537

MEMBER:Linda Holub

DATE:15 February 2023

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 15 February 2023 at 9:30am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting her sister and to accompany her mother – family’s catch-22 situation – a significant bond will provide a level of surety – positive migration history – decision under review remitted

LEGISLATION

Migration Act 1958, ss 56, 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 1 July 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 9 November 2021. 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.

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 the delegate was not satisfied that she genuinely intends to stay temporarily in Australia for the purpose she stated, and therefore the delegate found that she does not satisfy Subclause 600.211 of the Migration Regulations 1994.

5.    The review applicant appeared before the Tribunal on 13 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband and one of her daughters. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6.    The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

BACKGROUND

8.    The review applicant is the sister of the visa applicant.

9.    The review applicant was born in 1968 and is an Australian citizen by grant. Department records indicate that she first arrived in Australia in January 2013 as a holder of a Skilled Independent Regional (subclass 495) visa. In June 2015 she was granted a Skilled Regional (subclass 887) visa as a dependent applicant. She became an Australian citizen by grant in June 2017.

1. The visa applicant is a citizen of Iran born in 1974 in Tehran, Iran. She has never been married.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant while accompanying her elderly mother on the same trip.

3. In her visa application it states she was seeking to travel to Australia for a period of up to three months for a family visit to see her sister, the sponsor, and to accompany her elderly mother on the same trip, it further states it is vital that the visa applicant travel with her mother to look after her.

4. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231. In a statement provided to the Tribunal on 6 February 2023 the review applicant states that she would like her sister, the visa applicant to visit Australia by the end of February for three months, prior to the visa applicants’ birthday, her child’s birthday, and Persian New Year on 21 March 2023.

5. 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)).

6. Department records indicate that the visa applicant has not travelled to Australia before. She was previously refused a Visitor (subclass 600) visa 22 January 2014. She did not seek a review of the decision at the Tribunal. She provided to the Department a copy of her Islamic Republic of Iran passport issued 27 October 2021.

7. During the course of the hearing the Tribunal was told that the visa applicant visited the review applicant in Singapore when she and her family lived there. After the review applicant provided a copy of the visa applicant’s visa showing she was granted a visa for the period 9 February to 13 April 2007 and appears to have an entry date stamp of 4 March 2007.

8. Evidence before the Tribunal is that the parents of the review applicant have both been previously granted visas to travel to Australia although during the course of the hearing the Tribunal was unable to locate through the department's movement records their arrival and departure dates. This was discussed with the review applicant during the course of the hearing, and I asked her whether the visas were granted to her parents but that they did not travel. She responded that they both came to Australia together. She agreed to provide any photographic or other evidence showing that they were in Australia.

9. In post hearing submissions the review applicant provided photographs of her parents at a number of sites in Adelaide as well as with members of her family in Australia. In addition, she provided evidence of the BUPA membership providing health insurance cover during their period of stay in Australia.

10. A subsequent search identified the review applicant’s father’s movement records showing that he was granted a Subclass 600 visa on 22 January 2014 but did not travel to Australia on that visa. A further Subclass 600 visa was granted on 29 November 2016 which ceased on 29 May 2018. He arrived in Australia on 11 February 2017 and departed on 11 April 2017. Department records show the review applicant's mother was granted a Visitor (Class FA) (subclass 600) visa 17 November 2016, and a further Visitor visa granted 28 February 2022. She has not travelled to Australia since the grant of the 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 (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.

Evidence at hearing

1. The review applicant confirmed that she came to Australia in January 2013 as a holder of a Skilled Independent Regional (subclass 495) visa and that she was subsequently granted a Skilled Regional (subclass 887) and that she became an Australian citizen by grant in June 2017. She told the hearing that when she first came, she did a bit of research to help decide if Australia is somewhere the family would like to settle. She stated that she left Iran in 2000 and lived in a number of countries prior to moving to Singapore. She stated the family was pretty much settled there but after some economic changes they explored the option of migrating to Australia. She stated that within two or three months the whole family came.

2. The review applicant stated she lives with her husband and her younger daughter. Her elder daughter lives independently in a house they own. She stated they have a mortgage on that property and her daughter pays rent. She stated that they are renting the three-bedroom house. In terms of other assets, they have two cars and approximately $50,000 in their bank account.

3. The review applicant gave oral evidence that the visa applicant is almost 50 years, and she doesn’t work. She does not speak English and was never academically minded. She stated that they are very different, but she is her only sibling and went on to further describe the visa applicant. The Tribunal was told that the visa applicant has cared for their parents for the past 20 year and now cares for their mother following the death of their father.

4. The review applicant told the Tribunal that she understood the Department’s refusal decision when she first applied for a visa and was refused given, she was not married and was not working. However, on the second attempt given the extenuating circumstances following their father’s death and that their mother cannot travel to Australia she decided to seek review as she considered the decision discriminatory.

5. The review applicant talked of her mother’s previous travel to Australia and also referred to her father’s travel. She provided their full names and dates of birth and explained that her mother holds a current visa to Australia but has been unable to come because she is now unable to travel alone. She stated that her mother had hip surgery last year and does not feel confident enough post-surgery and also feels depressed following her husband’s death and her English is not good.

6. In the application the visa applicant stated that her trip will be self-funded, and she will bring enough funds to support herself during her stay and declared that she will be staying with the review applicant and will not need to pay for food or accommodation. At hearing the review applicant stated she is happy to fund for the visit and the visa applicant will stay with them. She also stated that the visa applicant has her own money to pay for her travel but that if she requires extra funds, the review applicant will be able to support her.

7. The review applicant gave evidence that the visa applicant is a very reserved person and would be too scared to be involved in any demonstrations. She stated that the visa applicant has not had any problems in Iran because of her religion, her ethnicity, or for any political or security situation that may have occurred.

8. In relation to the incentives for the visa applicants to return to Iran, the Tribunal was told that she is the main caregiver for her mother. In addition, the review applicant referred to the income the visa applicant and her mother derived from the property her mother owns, as well as her life, her cousins and their father’s grave. On a number of occasions, she stated that the visa applicant only wants to come to Australia to visit her, together with her mother, so that the family can be together. She reiterated earlier evidence that she is unable to travel to Iran because of her work supporting, and establishment of the Iranian Women’s Organisation in South Australia. She stated that the visa applicant would not have a life beyond the Iranian community in Australia and repeated that she does not speak English. She stated that she wants her sister and mother to visit so they can spend time with her and her husband and her daughters, and perhaps do a little sightseeing. She stated that the visa applicant is also in a ‘white marriage’ although she does not live with her boyfriend, and they do not share a joint account, but they provide each other company and share emotions.

9. According to the evidence provided, the visa applicant and her mother derive an income from a house that they lease out and the interest from their bank deposits which is enough for them to live on and travel occasionally. Written evidence of this was provided.

10. The review applicant’s husband gave evidence that the visa applicant supports her mother and that her mother cannot manage without her. He stated that she loves Iran and her life there. He stated that she has had no problems of any sort in relation to her religion or ethnicity or for any other reason. He stated that she is a very quiet person and leads a very peaceful life living with her mother. He stated that they would be prepared to put down the bond if that was required and he would happily go beyond the $50,000 that he and his wife currently have in their bank account by borrowing further funds. He stated that he is entirely confident that she will return to Iran after her visit.

11. The review applicant’s daughter gave evidence that the family waited six years to obtain the visa when they migrated to Australia. She said the family values and appreciates the legal processes, and in the same way the visa applicant would also abide by Australia's migration laws. She stated that when she was very young the visa applicant came to Singapore when they lived there and stayed for four to six weeks when her younger sister was born. She stated that the visa applicant does not speak English and that her grandmother could not survive without her. She also stated that she has no other relatives here nor friends and that the visa applicant would find it lonely because everyone else in the family have their own lives.

Oral submissions – migration representative

1. The applicant’s migration representative made oral submissions that it would be useful to re-frame the question and to consider the lack of incentives for the visa applicant to remain in Australia. He stated that her quality of life would be reduced. He referred to the small Iranian community in Adelaide with its various layers of society from Iran. He stated that the visa applicant has built up a like-mined network of friends and connections in her 50 years and that it would be difficult for her to do that in Australia given her circumstances and the smaller community. He also referred to the visa applicant’s extended family and second cousins which are part of her life whereas in Australia there is only her sister and her sister’s family.

2. The migration representative made submissions that the visa applicant and her mother have a reasonable income to live their lifestyle in Iran but once that income is converted than the value is deflated, and it would be difficult for them to survive in Australia and give up their property. He pointed that the sanctions are still in place on funds being transferred from Iran and so they could not benefit from their assets if she remains in Australia.

3. It was agreed that the review applicant would provide any further evidence in relation to the visa applicant’s travel to Singapore and her parents travel to Australia within a week and the Tribunal would further search the Department’s system in relation as well. The review applicant confirmed the oral evidence provided by her husband that they would be prepared to put down a substantial bond in relation to the visa applicant.

4. In making this decision, the Tribunal considered the following written evidence provided to the Department and the Tribunal:

   ·     Bankfirst account summary of the review applicant’s and her husband’s joint account for the period from August 2020 to October 2021.

   ·     Title Deed for a residential apartment in Tehran dated 13 June 2013.

   ·     Payslip from Osmoflo Water Management Pty Ltd in the name of the review applicant’s husband dated 14 October 2021.

   ·     Character references in respect of the review applicant.

   ·     Translated written statement made by the visa applicant dated 6 February 2023 and Statement prepared by the review applicant and one from her husband dated 6 February 2023

   ·     Written submission from the representative dated 6 February 2023 (97)

5. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

FINDINGS AND REASONS

1. The Tribunal considered the review applicant and witnesses were credible. They presented the evidence in a straightforward and open manner and the oral evidence was clearly heartfelt.

2. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for up to three months for the purpose of visiting her sister and to accompany her mother. The Tribunal accepts that with the passing of time, the death of her husband and her own recent hip replacement surgery, makes it impossible for the review applicant’s mother to feel confident about travelling to Australia alone and that she needs the visa applicant to accompany her. I also accept the visa applicant cares for her mother in Iran and has been doing so for many years.

3. The Tribunal recognises that the incentives for the visa applicant to return to Iran are not strong and indeed the main incentive provided is that the visa applicant cares for her mother and therefore will return to Iran. However, as the visa applicant’s mother would be travelling with her it is hard to place significant weight on this factor. The Tribunal recognises that the family is therefore in a catch-22 situation: in that the mother is unable to travel without the visa applicant. Of relevance is the review applicant’s role in supporting women from Iran and the Tribunal also accepts that the makes her return to Iran risky.

4. In this situation the Tribunal has turned its mind to whether there are any other risk factors that raise concerns that the visa applicant may seek to change her status while she is onshore. The Tribunal notes that the review applicant and her family have a positive migration history and has given this considerable positive weight. Furthermore, the Tribunal has had regard to the fact that the review applicant’s mother has travelled to Australia previously including with her husband and even then, did not seek to change her visa status. The Tribunal finds that she is unlikely to do so in the future and will return to Iran. To the extent that I accept that the visa applicant provides care for her mother, I therefore accept that the visa applicant will return to Iran with her mother.

5. I also found the evidence persuasive that the visa applicant’s particular lifestyle in Iran is indicative of her personality and her interests and therefore, combined with the fact that she has been caring for her parents and more recently her mother, she will not be seeking to establish a new life for herself in Australia. I accept that her extended family, friends and life in Iran provide some incentive for her to return to Iran.

6. I also accept the argument that the review applicant wants the visa applicant and their mother to be able to travel to and from Iran and therefore will not jeopardise this by seeking to change the visa applicant’s visa status.

7. The review applicant and her husband both expressed a willingness to pay a bond to secure a visa for the visa applicant. Given the family’s catch-22 situation and given the fact that the incentives for the visa applicant to return to Iran are not strong, the Tribunal considers it may be appropriate for the Department to consider imposing a bond at a significant level in this case.

1. I accept that the visa applicant:

   a.can fund the cost of her airfare and that she will stay with the review applicant and her family who will cover the cost of her living expenses while she is in Australia.

   b.has no intention of working studying or undertaking any training in Australia. She has not previously worked outside the home, and she does not speak English.

   c.has not had any problems in Iran for any reason

2. Condition 8503 refers to entitlement and does not require compliance.

3. The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa and that a significant bond will provide a level of surety that is warranted in this case at this time.

4. 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

1. 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.

Linda Holub
Member