Sharif (Migration)

[2022] AATA 625

Sharif (Migration) [2022] AATA 625 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Shahrbanoo Sharif

VISA APPLICANT:  Mr Mohammad Sharif

CASE NUMBER:  2005505

HOME AFFAIRS REFERENCE:               BCC2019/817630

MEMBER:L. Symons

DATE:10 March 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 10 March 2022 at 12:07pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – financial arrangements for the visit – cultural importance of hospitality – employment in Iran – family commitments in home country – professional profile – previous compliant family visits – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 14 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 for the visa on 10 January 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 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 she was not satisfied that he genuinely intends staying temporarily in Australia for the purpose for which the visa is granted.  

5. The review applicant appeared before the Tribunal, via video, on 9 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Behrang Ansari, and the visa applicant, Mr Mohammad Sharif. 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 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, who is the brother of the review applicant, seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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. There is no evidence before the Tribunal to indicate that the visa applicant has travelled to Australia previously.

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 (compulsory condition)

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

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

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

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that she is employed as a hospital Pathology Scientist and has been doing this job for about 5 years. She earns an annual income of about $100,000.00. Her husband is a civil engineer and works as a Project Manager and Consultant. They have a daughter who was born in 2020. They purchased a new home in West Pennant Hills in 2021 and also own an investment property. They own two cars and some shares. They have mortgages.

13. The review applicant gave evidence that the visa applicant lives in Tehran with his wife. She was his long term de facto partner and they got married in 2021. He is a well- known technology journalist in Iran. He has been working for a newspaper as the editor of Media Group since 21 March 2006. He also consults as a Public Relations adviser for several prominent technology based companies. He is the founder and editor of a technology news website, ITIran, which is in the Persian language. He employs their sister as a translator in relation to the work he does on the website. He owns an apartment in Iran and has no debts.

14. The Tribunal asked the review applicant how the Covid-19 pandemic has impacted on the visa applicant’s work. She responded that at the beginning of the pandemic he worked from home. He wears a mask when outside his home. He is being very careful because he is in contact with their elderly mother and does not want to infect her. His wife also works from home and has to have regular Covid-19 tests. The biggest impact on his work is that he does not travel for work as much as he used to prior to the pandemic. He travelled a lot to attend IT exhibitions around the world.

15. The review applicant stated that she and her husband will provide the visa applicant with accommodation and pay for his living expenses in Australia. He will pay for his own airfare and will bring money to buy gifts to take back to Iran. He has no intention of working, studying or undertaking any training in Australia.

16. The review applicant’s husband, Mr Behrang Ansari, gave evidence that he supports the visa applicant’s application for a Visitor visa. He also supports the review applicant’s desire to have family stay with them and to offer the visa applicant the hospitality of their home in accordance with their culture. Family members living overseas worry about how they live and it gives them peace of mind when they are able to see how they live.   

17. The visa applicant gave evidence that was consistent with the evidence given by the review applicant. He stated that he owns a house, a car, shares and savings. He has no debts. He will pay for his airfare to Australia and plans to bring about $6,000.00 in spending money. He will live with the review applicant and her family in Australia. His work situation has not changed (in the last couple of years) and in fact his job opportunities have increased as the digital economy has really developed in recent years. This has created a lot more opportunities for work and his situation has improved in recent years. In addition to the work he is currently doing, one or two other companies have approached him to provide similar services next year.

18. The visa applicant stated that he is not planning to work in Australia. When asked whether he is planning to study or do any training in Australia, he responded no. He is a technology journalist in Iran. It has taken him two decades of experience to make a name for himself and develop a reputation in this area. He is very well known in this area in Iran. Because of his age and who he is, he will not be starting something new in another part of the world. He also does not want to cause any problem for the review applicant and her husband.

19. The Department and the Tribunal have been provided with copies of a number of documents including the visa applicant’s bank statements, an Employment Certificate dated 23 December 2019 from the Morning Newspaper of Iran, an Employment Certificate dated 16 February 2022 from the Morning Newspaper of Iran, a pay slip from the Morning Newspaper of Iran, a letter dated 2 January 2020 from the Chief Executive Officer of Hamkaran System Company in relation to his consultancy work, a letter dated 25 November 2019 from the Chief Executive Officer of Novin Andishan Sarava Pars Company in relation to his consultancy work, a Certificate of Employment dated 30 December 2019 from the Chief Executive Officer of TAP30 Company in relation to his consultancy work, a Title Deed in the visa applicant’s name in relation to a property in Karaj, a letter dated 24 December 2019 from the Social Security Organization (superannuation), a letter dated 3 January 2020 from the Executive Manager of the website that was founded by the visa applicant and which he edits, a Lease Agreement dated 8 August 2021 and a Lease Contract with the review applicant, visa applicant and their sister as the Lessors.

20. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the proposed length and purpose of his visit to Australia and his personal circumstances. In his application for a Visitor visa, he stated that the proposed period of stay was 15 to 20 days. The proposed dates were to arrive on 17 March 2020 and depart on 5 April 2020. The reason for his travel was to visit his sister and brother-in-law.  

21. The review applicant gave evidence that she has not seen the visa applicant in person since 2018 when she visited Iran. She would like him to come to Australia, spend time with her and her family and see their new home. She was pregnant and due to have her first child in March 2020 and wanted her mother to be here at the time. She also wanted the visa applicant to accompany their mother to Australia as it was risky for her to travel on her own. She had a daughter in March 2020, she is older now and able to understand much more. She would love her to meet her uncle. She thinks it will be a good family time.

22. The review applicant stated that, at the time of the visa application, they had planned a trip for 2 weeks during the Persian New Year holiday period. As the visa applicant is working, he will not be able to come for more than 2 to 3 weeks. When asked what he is planning to do during that period, she responded that he would spend time with them. They are also planning to take him sightseeing and to do lots of eating and drinking together. They also want him to see their new home. He is a photographer and enjoys taking photographs of beautiful places.

23. The review applicant stated that the visa applicant has not had any problems in Iran because of his work as a journalist for a newspaper or because of the current political and security situation. When asked how the current economic situation in Iran has impacted on him, she responded that it is much more expensive when he travels. He and his wife travelled to the UAE 2 months ago and they said everything was a lot more expensive. However, both of them have good incomes.

24. The Tribunal asked the review applicant what incentives the visa applicant has to return to Iran at the end of the holiday. She responded his life and his new wife. He got married recently and he is “mentally happier”. He was in a de facto relationship with his wife for a long time and they decided to get married last year. This was very exciting for all of them. He has a well-established life in Iran both in relation to his family and his work. Their mother, sister and nephew live in Tehran. He looks after their mother by taking her shopping weekly and taking her to doctor’s appointments. He also helps their sister and has a close relationship with her son. He has friends in Iran. He is a good IT journalist, is well known in Iran and his work is important to him. He will not sacrifice all this to live in Australia where he does not speak the language. He is almost 50 years old and has a life in Iran. If he did not want to live in Iran, he had the opportunity to live in the USA or Europe when he was younger. That is not for him.

25. The visa applicant gave evidence that he has not had any problems in Iran because he is a journalist or because he works for a newspaper. His specialty is technology and it does not have anything to do with politics or anything sensitive. The newspaper he works for is in the private sector and has nothing to do with sensitive or political matters. When asked how the current economic situation in Iran has impacted on him, he responded that the problems in Iran in relation to the economy and inflation have caused problems for people. The area he works in is digital and this area has developed considerably in recent years.

26. The Tribunal asked the visa applicant what incentives he has to return to Iran at the end of a holiday in Australia. He responded that he has created a professional profile for himself in Iran. He has work commitments that require him to return to Iran. He is now married and the most important incentive for him to return to Iran is to live with his family. The Tribunal has been provided with a copy of his Marriage Certificate which indicates that he was married on 30 September 2021.

27. The Tribunal has considered other relevant matters. The review applicant gave evidence that the visa applicant has travelled extensively over a long period of time. He has travelled for work and for personal reasons and has never overstayed his visas. She also stated that several of her family members and her husband’s family members, including her mother, sister, father-in-law, mother-in-law (twice), sister-in-law (twice) and husband’s aunt, have visited Australia and have returned to Iran before their visas expired. She understands the consequences of overstaying a visa and the impact it will have on other family members who may want to visit them in the future.

28. Mr Behrang Ansari gave evidence that this is the second time that the visa applicant has been rejected when applying for a Visitor visa to travel to Australia. He has successfully applied for visas to many other countries, including the USA where he has travelled to on three occasions, and wanted to “clean his record”.

29. The Tribunal has been provided with a statement dated 5 January 2020 from the visa applicant in which he sets out the countries he has travelled to between 2003 and 2019. They include the USA on three occasions, seven countries in western Europe as well as countries in eastern Europe and Asia. He stated that he has never overstayed his visas to any of these countries. The Tribunal has been provided with copies of his passports showing visas and entry and exit stamps.

30. The review applicant gave evidence that she is prepared to lodge a security bond of $50,000.00 to guarantee the visa applicant’s compliance with the visa.

31. Having considered all the evidence, the Tribunal finds that the review applicant, her husband and the visa applicant are credible witness. The Tribunal accepts that the visa applicant’s income from several jobs and his assets provide him with the financial capacity to live a comfortable life in Iran and to travel around the world for work as well as for leisure. The Tribunal accepts that he will pay for his airfare to Australia and has the financial capacity to pay for his other expenses in Australia if required. The Tribunal accepts that the review applicant and her husband will provide him with accommodation and pay for his expenses in Australia for the duration of his holiday. The Tribunal accepts that the visa applicant has no intention of working 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 his visa.

32. The Tribunal accepts that the visa applicant’s relationships with and commitments to his wife, mother, sister and nephew provide him with strong incentives to return to Iran after the end of his permitted stay in Australia. The Tribunal accepts that the professional reputation and standing he has developed over many years and his work commitments are important to him and this provides further incentives for him to return to Iran. The Tribunal accepts that the current economic, political and security situations in Iran has had minimal impact on his lifestyle.

33. The Tribunal accepts that the visa applicant wishes to visit the review applicant and her family and spend time with them in their home in Australia. The Tribunal accepts that he also wants to visit Australia, do some sightseeing and take photographs. The Tribunal accepts that he has no intention of living here permanently and that his incentives to return to Iran outweigh his incentives to remain in Australia after the end of his permitted stay. The Tribunal is satisfied that the visa applicant will comply with conditions 8503 and 8531 of his visa.  

34. 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

35. 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