Sabeti Nayyeri (Migration)

[2021] AATA 340

Sabeti Nayyeri (Migration) [2021] AATA 340 (4 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Masoud Sabeti Nayyeri

VISA APPLICANT:  Mr Ehsan Sabetiniri

CASE NUMBER:  1820787

HOME AFFAIRS REFERENCE(S):          BCC2018/1692496

MEMBER:Wendy Banfield

DATE:4 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 04 February 2021 at 12:24pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entry – incentives to remain or return – own property, employment, caring for elderly father and plans for marriage – review applicant’s established life and successful business in Australia – previous compliant travel by father and review applicant’s parents-in-law – parents would still have two children in home country if applicant remained in Australia – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211(a), Schedule 8, condition 8531

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 12 May 2018 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 17 April 2018. 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 they were not satisfied the applicant genuinely intends to stay temporarily in Australia.  

   Background

5. The visa applicant is a citizen of Iran and is currently 34 years old. He is single with no dependents and lives with his elderly parents. The review applicant is the older brother of the applicant who is an Australian citizen and is married with children.

6. The review applicant/sponsor Masoud Sabeti Nayyeri appeared before the Tribunal on 14 October 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. During the hearing the applicant indicated he would have preferred to have an in person hearing to allow the Tribunal to hear from his children. The Tribunal accepts the applicant’s children would want their uncle to visit them in Australia and did not consider it necessary to take evidence from them. In his response to the hearing invitation, the applicant had not requested that the Member take oral evidence from another person. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. Prior to the hearing the following evidence was submitted in support of the application for review:

   ·     ATO Notice of Assessment and tax returns in the name of the review applicant;

   ·     ANZ account statement dated 10 April 2018;

   ·     Commonwealth Bank statements dated 11 April 2018; 17 July 2018;

   ·     Letter to the Australian Embassy from the review applicant dated 20 April 2018;

   ·     Review applicant’s written statement to the Tribunal received on 18 July 2018;

   ·     ASIC company documents in relation to the review applicant’s business;

   ·     Payroll document for the review applicant’s business;

   ·     Letter from Pius X Aboriginal Corporation dated 5 July 2018;

   ·     Letter of support from Robert Skeen;

   ·     Document referring to other relatives’ visits to Australia;

   ·     Financial documents in relation to the review applicant’s business ICT Business Systems Pty Ltd;

8. The Tribunal also had regard to the evidence provided to the Department in support of the application for review.

   The hearing

9. The review applicant advised the visa applicant is his younger brother. Regarding his own circumstances, the review applicant said he has been in Australia for about 14 years. He came with his wife as a temporary resident and was introduced to a church by his neighbours. The review applicant became a member of the church and applied for a Protection visa which was granted. He said he understood the current visa was rejected because of his history. The review applicant said his mother-in-law’s visa to visit Australia was initially rejected and they went through the same process of review. She was ultimately granted a visa and she and the review applicant’s father-in-law have since travelled to Australia several times. The review applicant said his father had also visited Australia for three months in 2013/14.

10. The review applicant said he invited his brother to Australia because he has children and it is difficult without family around them. He would like his brother to connect with them and it is too difficult for his elderly father to travel. The visa applicant is single with no dependents and living with his father while two other brothers in Iran are married with families. The review applicant said the visa applicant is very stable and works in transport in a managerial position. He said his brother has no reason to come and stay in Australia because he has parents, two brothers and his work which he is attached to in his home country. It was claimed it would be difficult to him to think about another job and he is very comfortable with his situation.

11. The review applicant advised he has his own business in Australia after completing a master’s degree in IT at Sydney University. The business provides IT services to medical establishments in regional Australia. The review applicant’s information was supported by documentary evidence to both the Department and the Tribunal.

12. Regarding the Department’s decision, the review applicant said he understood there may have been a concern that his brother wants to come and stay in Australia and not return to Iran. The Tribunal explained the Department had found the visa applicant did not demonstrate sufficient ties to his home country. The review applicant said the visa applicant has been living with their parents and taking care of his father who is 83. It was claimed he would not leave his parents at this age and time. The Tribunal put to the applicant that his brother is a single young man who has a successful brother in Australia which may be an inducement for him to want to stay. The review applicant said his situation is not impressive to his brother who is satisfied with his life and has a different belief system.

13. The review applicant reiterated his brother has no interest in living in another country and they only want the children to meet their uncle. The review applicant said he has sponsored people from Italy through his business and if he had wanted, he could have similarly sponsored his brother. He did not agree that his business is of interest to his brother because the family in Iran is not from a lower section of the community.

14. The applicant indicated his brother has his own property, lives with his father and is planning to get married within the next year or two. It had been hoped he could travel about two years ago. The review applicant advised he understood that if his brothers who have children had applied it would be more satisfying to the Department, but they are very busy with children in school. He said his younger brother has a connection with his children through chatting to them online. The review applicant said he hopes his children can meet the other brothers later. The review applicant repeated he wants his younger brother to visit as it is too difficult for his father to travel anymore.

15. The review applicant indicated it would have liked to have the hearing face to face in which case he would have brought his children to show they are an established family and for the Tribunal to hear how much they want to see their uncle. It was claimed that after many years of being in Australia, not being able to have family visit has an impact on the family. The review applicant said it would be possible to meet family in Thailand or Malaysia, but it is not ideal, and the children want to spend time with them. The review applicant referred again to having a successful business which employs people in Australia. He asked that the Tribunal consider he just wants his brother to be able to visit and see family.

    Country Information

16. The Tribunal considered relevant country information about Iran’s economic situation:

    Iran is a middle-income country. Gross national income on a per capita basis was USD5,680 in 2019. Iran’s economy is the second largest in the Middle East and North Africa region, behind Saudi Arabia. Gross Domestic Product (GDP) in 2019 was USD461 billion. Iran is rich in natural resources — it ranks second in the world in proven natural gas reserves and fourth in proven crude oil reserves. The hydrocarbon sector predominates the economy, and government revenues rely heavily on energy exports, particularly oil. While Iran’s economy is much more diversified than that of its Gulf neighbours, US sanctions on oil exports have hit the national budget hard and pushed the economy into negative growth. The state has a significant presence in manufacturing and financial services (see Islamic Revolutionary Guards Corps (IRGC)). The private sector is confined largely to small- and medium-sized enterprises. Corruption, price controls, subsidies and a weak banking sector act as impediments to private sector-led growth. The lifting of most nuclear-related sanctions following the entry into force of the JCPOA (see Sanctions) saw a restoration of oil production and rebound in GDP growth (the economy grew by 12.5 per cent in 2016). The rate of growth declined significantly in 2017, to 3.7 per cent, as oil production plateaued and the price of oil fell. In parallel, an anticipated increase in foreign investment post-JCPOA failed to materialise. US sanctions independent of the JCPOA (relating to human rights violations and support for designated terrorist entities), coupled with concerns over corruption and the broader regulatory environment, deterred many foreign businesses from investing in Iran. Most of those that did withdrew their investments following the US’ exit from the JCPOA and its restoration, from August 2018, of sanctions suspended under the JCPOA. US sanctions have contributed to sharp declines in Iran’s oil exports and the value of the local currency, the rial (see Sanctions). According to the International Monetary Fund (IMF), Iran’s economy contracted by 9.5 per cent in 2019, following a 4.8 per cent decline in 2018. The IMF projects zero growth in 2020.

    The outbreak of COVID-19, a new coronavirus, has placed further strain on Iran’s economy, by dampening domestic consumption, disrupting trade with neighbouring countries and placing downward pressure on the rial.[1]

    [1] DFAT Country Information Report – Iran 14 April 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother’s family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

20. 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)).

21. There is no evidence before the Tribunal of any non-compliance with conditions of a previously held visa as the visa applicant has not travelled to Australia before.

22. 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.

23. The Tribunal has concerns about the applicant’s genuine intention to stay temporarily in Australia for the purpose for which the visa is granted and is not satisfied that the applicant will abide by a key condition that would be imposed on his visa.

24. The Tribunal accepts the visa applicant does not intend to breach condition 8101 because the evidence indicates he will be well supported in Australia by the review applicant who has a successful and financially stable business. There is no evidence before the Tribunal to indicate the applicant would seek to engage in study or training that would breach condition 8201. Condition 8503 refers to entitlement and is not a condition that involves compliance.

25. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

26. The visa applicant is a 34-year-old single male with no dependents who lives in the city of Mashhad in northeast Iran. He resides with his elderly parents and according to the review applicant’s evidence, is employed in the transport industry. Evidence of the visa applicant’s employment in his home country consisted of documents submitted with the original application including letters dated 17 March 2018 from Mohammad Eslami stating the visa applicant is employed as a ‘business expert’ and has been granted leave in June/July 2018. The Tribunal accepts the applicant is employed in Iran but is not satisfied this would serve as an incentive for him to return.

27. The review applicant is an Australian citizen who was granted a Protection visa in 2011. While the Tribunal accepts the visa applicant may not take the same route as his brother and apply for protection in Australia, the Tribunal finds there are circumstances that would encourage the visa applicant to remain in Australia. Since his arrival in Australia the review applicant has built a successful IT business using his high-level qualifications in the field. He employs staff and according to his evidence, has sponsored overseas workers. It was claimed the review applicant’s situation is not particularly impressive to the visa applicant and would not act as an inducement for him to stay in Australia. However, the Tribunal notes from the country information about the economic situation in Iran that economic growth has declined, and the COVID-19 pandemic has further strained Iran’s economy. In addition, the Tribunal has no evidence regarding the visa applicant’s current income or ownership of any property or assets in his home country that would demonstrate significant economic ties. Since the average annual salary in Iran is IRR 522197676 [2] (AU$16,254.62), the Tribunal does not accept the review applicant’s claim that his financial standing in Australia would not be an incentive for the visa applicant to try to stay in Australia. The Tribunal also rejects the assertion that the visa applicant has no intention to stay in Australia because if this was the case, the review applicant he would have sponsored him through his business.

    [2] Iran salary 2020/21 >

    According to the Visitor visa application form the visa applicant’s parents and two brothers continue to live in Iran. It was submitted he resides with his parents and because his father is elderly, he would not leave them and stay in Australia. The Tribunal notes the review applicant’s evidence that his other two brothers are settled with their own families and the Tribunal considers the visa applicant’s parents would still have adult children in Iran if the visa applicant were not there. The review applicant claimed at the Tribunal hearing that his brother, the visa applicant is considering marrying in the next one or two years, however, there is no evidence to support this. The Tribunal is not satisfied the visa applicant’s personal circumstances would encourage him to return to his home country as the end of the proposed visit to Australia.

28. Having considered the visa applicant’s individual circumstances and weighing the evidence provided in this case, the Tribunal is of the view the visa applicant may seek to remain in Australia after end of the permitted stay, in breach of visa conditions and against the purpose for which the Visitor visa may be granted.

29. The Tribunal had regard to and understands the review applicant’s evidence that he wants his children in Australia to connect with family members in Iran and that they have developed a relationship with their uncle, the visa applicant through online communications. It is also accepted that the review applicant’s father may be too elderly to travel again to Australia to visit. In this regard, the review applicant stated at the hearing that family reunion is possible in another country but that this would not be ideal. In the circumstances, the Tribunal finds the review applicant’s wish for his brother to visit Australia does not outweigh the concerns outlined in this decision.

30. The Tribunal also considered the review applicant’s contention that other relatives such as his father and parents-in-law have visited Australia and departed as required. However, the facts and circumstances concerning each visa applicant must be considered and assessed on their own merits. In this case, the visa applicant’s circumstances, particularly his stage of life is very different to the review applicant’s other relatives.

31. 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.

    DECISION

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

    Wendy Banfield
    Member