Sakhreh (Migration)

[2021] AATA 3866

Sakhreh (Migration) [2021] AATA 3866 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Farzaneh Sakhreh

VISA APPLICANT:  Mr Mehrshad Sabzevari

CASE NUMBER:  1927510

HOME AFFAIRS REFERENCE(S):          BCC2019/3532333

MEMBER:Mark Bishop

DATE:5 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2021 at 8:45am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – mother and brother in Australia, wife, young child, extended family and friends, self-employment and assets in home country – previous compliant travel to another country – self-funded travel – economic and social conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 August 2019 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 15 July 2019. 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.

5. The Review Applicant (RA) appeared before the Tribunal on 4 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the Visa Applicant (VA).  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

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

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 (cl 600.211(a)).

10. 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:

    ·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.

11. The VA provided a written statement as follows:

    ·He does not wish to live in Australia. He wishes to live in Iran. He loves the weather, language, food and culture of his own country.

    ·His wife is close to her parents and they visit often.

    ·He wishes to visit his mother and younger brother whom he has not seen for several years. He has saved the funds to travel to Australia.

    ·He has a wife and daughter in Iran. He has a brother and a father who live in Iran. He has other family and friends in Iran.

    ·He is self employed and owns a watch shop.

    ·He has travelled to turkey in the past.

    ·He has assets in the form of money and houses and provided relevant detail to the Department.

    ·His mother and brother work in Australia.

12. The VA provided copies of bank statements and an income statement

13. The delegate made the following findings:

    ·“I acknowledge that the purpose of your intended travel is to visit your mother and younger brother. I note that your mother has provided an invitation letter to support your visit. Although this information has been considered, support or guarantees given by family members are generally not sufficient evidence that the applicant intends a genuine visit.

    ·I have taken into account your economic circumstances relative to the economic circumstances in your home country and Australia. You have indicated in your application that you are self-employed and that you own your own Watch Shop. However, I place little weight on your business ties to act as an incentive to return, given the comparatively greater economic opportunities which might encourage you to remain in Australia.

    ·I also note that you have provided evidence of personal funds and property ownership in Iran. However I must assess your application on your circumstances as a whole and I am concerned that funds are easily transferred. I am therefore not satisfied that your assets or funds would provide you with an incentive to depart Australia at the end of a temporary stay.

    ·In addition, you have indicated the presence of family members that will remain in Iran during your proposed visit to Australia, namely wife, parent and sibling. While I acknowledge that these family members may offer some inducement to return to Iran, I am not satisfied that their presence sufficiently demonstrates that you intend a genuine temporary stay in Australia.

    ·Finally, I have considered your travel history. I have noted that you have travelled to Turkey only. While I acknowledge your previous travel, I note that you have not shown evidence of any recent overseas travel to developed countries similar to Australia which enables applicants to demonstrate that they have been able to comply with immigration laws of other countries. I am therefore unable to give any weight to your previous travel history in determining whether you intend a genuine visit to Australia.”

14. In evidence to the Tribunal the VA advised as follows:

    ·He lived with his wife and 3 year old daughter in the city of Karaj in the province of Alborz, near the city of Tehran.

    ·He was self-employed in a shop that sold watches. His main role was that of salesperson. His wife was not engaged in paid employment.

    ·He had bank deposits of approximately US$197,000 in a bank in Iran.

    ·He owned two properties in his town and received rental income.

    ·His wife and daughter would not accompany him to Australia. He had visited turkey on 3 occasions. He had not visited other countries.

    ·He agreed unemployment was very high in Iran as was inflation. Power and electricity was intermittingly interrupted but was generally ok. Internet usage was interrupted for reasons of security.

    ·He wished to see his mother and brother who resided in Australia. He had not seen them for 5 years and 2 years respectively.

15. In evidence to the Tribunal the RA advised as follows:

    ·The VA advised the RA was her son.

    ·She had married and Australian citizen, she was now divorced from him and she had permanent residence in Australia.

    ·She did not have any concerns about visiting Iran.

    ·She was employed full time in disability work and her younger son was about to start work in the IT field.

    ·She had two sons in Iran. The Australian government had helped a lot in the past. It had been 5 years since she had seen her son in Iran.

16. The Tribunal has considered the evidence carefully and notes that the visa applicant has travelled to one other country, specifically Turkey. The Tribunal has evaluated this carefully and notes that the visa applicant has not actually visited any comparable countries to Australia in regard to a significant beneficial immigration outcome. The Tribunal acknowledges that Turkey is similar to the visa applicants’ home country of Iran in terms of limited economic and social opportunity but also notes that Turkey does not provide similar beneficial migration incentives and that also Turkey does not offer a beneficial migration incentive when compared with that of Australia, a modern industrial economy with a significant social welfare protection environment also noting in particular that the visa applicants’ mother is living and working here in Australia and his brother is about to start an IT career in Australia.  The VA led evidence that he had access to almost US$200,000 in his bank in Iran. Presumably then the VA would be able to afford to fly to Australia or if need be arrange an air ticket for his mother to visit Iran. The Tribunal has considered this evidence carefully (inclusive of the statement of the VA as summarised at dot point 1 of paragraph 11 above) and finds that the visa applicants’ travel history does not encourage the point of view that he is a genuine visitor or tourist to Australia and that this lends weight to the contention that the visa applicant is seeking a beneficial migration outcome rather than a genuine visit to Australia.

17. The Tribunal has considered the evidence provided in regard to the visa applicants’ incentive to return to his home country in particular his economic or financial incentives generally taking into account that the visa applicants’ own property (2 rental properties from which an income is derived) and bank deposits (in evidence the applicant advised he had approximately US$197,000 in the bank) and the fact he is self-employed with his own watch shop. The Tribunal has evaluated this evidence carefully but notes that property and financial assets can be liquidated without complication or can be leased or rented out and the investment income can be enjoyed by the family here in Australia or actively managed by members of the extended family in Iran. On that basis the Tribunal after careful consideration finds that the ownership of such property and the holding of such assets back in their home country does not in this case act as a significant incentive for the applicant to return to his home country and that this also lends weight to the contention that the visa applicant does not intend a genuine temporary visit to Australia.

18. The Tribunal has also considered the general economic and social conditions back in the visa applicants’ home country and notes that country information reports of recent times by the Department of Foreign Affairs and Trade does indicate that there are deleterious conditions of life that would act as an incentive for the applicant not to return to his home country and that the VA does not genuinely intend to stay in Australia temporarily.

19. 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

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

    Mark Bishop
    Member