1506132 (Migration)

[2015] AATA 3585

1506132 (Migration) [2015] AATA 3585 (30 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mehmet Celik

VISA APPLICANT:  Mr Adnan Celik

CASE NUMBER:  1506132

DIBP REFERENCE(S):  BCC2015/1132850

MEMBER:Linda Symons

DATE:30 October 2015

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 criterion for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 30 October 2015 at 3:33pm

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 Immigration on 16 April 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 April 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 he was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The review applicant applied to the Tribunal on 6 May 2015 for review of this decision.     

5. The review applicant appeared before the Tribunal on 22 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish 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 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. The delegate was concerned that the length of stay requested is not consistent with a person of working age who claims to be employed. The delegate was also concerned that the visa applicant relies on the income generated from his employment to support his family and will not receive any remuneration whilst he is visiting Australia. The delegate was unable to place weight on previous international travel as evidence that the applicant would comply with his visa conditions.

9. In the present case, the visa applicant seeks the visa for the purpose of visiting his brother and family and for a holiday. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).There is no evidence before the Tribunal to indicate that the visa applicant has previously held a substantive visa or any subsequent Bridging visa in Australia. The evidence before the Tribunal indicates that he has not travelled overseas 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

    ·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.

12. In considering whether the visa applicant intends to comply with condition 8101, the Tribunal discussed the proposed financial arrangements for the visa applicant’s visit to Australia. The review applicant gave evidence that the visa applicant has some savings and he will “top up” any short fall in his expenses while he is in Australia. He stated that he is prepared to pay for the visa applicant’s airfare. The review applicant is married and has three children. He is employed as an insulation installer. He earns approximately $2,000.00 nett per week. He has savings of between $5,000.00 and $6,000.00. He and his wife own a house, two cars and a boat.

13. The visa applicant gave evidence that he has been employed by his current employer since July 2012. He stated that he has recently changed his role in the company and now works the night shift which finishes at 12 midnight or 12.30am. He stated that his income is 1,050.00 Turkish lira per month plus 400 Turkish lira worth of food coupons a month. He stated that he has a second job which he does during the day. He stated that 3 months ago he set up his own business laying laminated floor boards. He stated that on average he earns between 1,500.00 and 2,000.00 Turkish lira a month from this business. He stated that he owns a house and a car. He stated that his house has a mortgage on it and is rented for 600.00 Turkish lira a month. He stated that he has savings of 2,300.00 Turkish lira.

14. The visa applicant gave evidence that when he changed roles within his company he was paid out his accumulated leave. He stated that he would have to apply for unpaid leave to travel to Australia. He stated that he does not think he will be able to obtain more than 4 to 6 weeks of unpaid leave.

15. The visa applicant gave evidence that he has no plans to work or study in Australia. This was re-iterated by the review applicant.

16. The Tribunal discussed the visa applicant’s incentives to leave Australia at the end of his permitted stay. The review applicant gave evidence that the visa applicant’s biggest incentive to return to Turkey is his daughter. He stated that the visa applicant was divorced 18 months ago and his 8 year old daughter lives with her mother. He stated that the visa applicant is not required to pay child support as per a court order but that he voluntarily provides her with financial support. He stated that the visa applicant changed his primary job to night shift so that he could take his daughter to school and spend more time with her. He stated that the visa applicant started a second job to generate more income so that he could provide better for his daughter.

17. The review applicant gave evidence that he has two siblings; the visa applicant and another brother who is disabled. He stated that the visa applicant assists his disabled brother. He stated that this is another reason why the visa applicant would have to return to Turkey. He stated that the visa applicant would also have to return to Turkey to take care of their parents. He stated that the visa applicant also has a good job.

18. The visa applicant gave evidence that he takes his daughter to school and picks her up after school. He stated that they spend time together on the weekends. He stated that he pays for her school fees, clothes and other needs. He stated that it would be impossible for him to leave his daughter and live in Australia. He stated that he has a job he likes and a new business he is building up.

19. The Tribunal has also considered other relevant matters (cl.600.211(c)). The review applicant gave evidence that he has previously sponsored his parents and his niece to visit Australia. He stated that his parents have visited Australia on 3 occasions and always left Australia within the period of their visas. He stated that his niece also complied with the conditions of her visa.

20. The review applicant’s wife, Sevgi Celik, gave evidence that the visa applicant is curious about Australia and would like to visit. She stated that his parents have visited 3 times and he feels that he is being left out. She stated that this is the third time he has been refused a visa to come here and she does not understand why he cannot visit his brother and family.

21. The review applicant gave evidence that he is prepared to lodge a bond of $10,000.00 as security to ensure that the visa applicant complies with the conditions of his visa.

22. Having considered all the evidence, the Tribunal accepts that the review applicant will provide the visa applicant with accommodation and financial support during his stay in Australia. The Tribunal accepts that the visa applicant has no intention of engaging in work, study or training in Australia. The Tribunal accepts that the visa applicant has a strong commitment to his daughter and that her presence in Turkey would provide a powerful incentive for him to return to Turkey. The Tribunal accepts that the presence of his parents and disabled brother in Turkey would provide further incentive for him to return to Turkey. The Tribunal accepts that the visa applicant’s employment and his own business are further incentives to return to Turkey.

23. The Tribunal accepts that the visa applicant intends complying with the conditions of the Visitor visa if granted. The Tribunal accepts that the review applicant is willing and able to provide financial security to ensure that the visa applicant complies with the conditions of his visa and that this would be a strong incentive for the visa applicant to comply with his visa conditions.

24. 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

25. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Linda Symons
    Member