1611253 (Migration)

[2016] AATA 4519

1611253 (Migration) [2016] AATA 4519 (6 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rabia Kalkan

VISA APPLICANT:  Mrs Leyla Keskin

CASE NUMBER:  1611253

DIBP REFERENCE:  BCC2016/2352598

MEMBER:Deborah Morgan

DATE:6 October 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 06 October 2016 at 11:11am

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 14 July 2016 (the delegate) to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs Leyla Keskin (the visa applicant) applied for the visa on 14 July 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the visa 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 (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 evidence failed to demonstrate a genuine intention to visit Australia. The delegate’s decision particularly focussed on the visa applicant’s personal circumstances.

5. Miss Rabia Kalkan, the visa applicant’s sister (the review applicant) appeared before the Tribunal by video link from Perth to Adelaide on 20 September 2016 to give evidence and present arguments. The Tribunal received oral evidence from the review applicant’s fiancé and from her sister, Ms Hulya Yasar in person and, additionally, from the visa applicant by telephone. The Tribunal adjourned the first hearing owing to interpreting problems and resumed the hearing on 5 October 2016.

6. The Tribunal hearing was conducted with the assistance of interpreters in the Turkish and English languages.

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

   Jurisdictional issue

8. In the visa application the visa applicant is named as the primary visa applicant and she included her husband and their four children as applicants for Tourist visas.

9. The delegate’s refusal of the visa application only names the visa applicant as the client but refers to her stated intention to travel with her husband and children to Australia.

10. Because the visa applications were made in relation to the Tourist stream when the applicants were outside Australia, the refusal is reviewable under section 338(7) of the Act. The review applicant must be a relative of the visa applicant and the visa applicant must  intend to visit an Australian citizen or permanent resident who is a parent, spouse, defacto partner child brother or sister of the visa applicant (s.338(7)(b) refers). Particulars of the Australian relative must be included in the visa application (s.338(7)(c)).

11. The review applicant has claimed that the visa applicant, her husband and their four children are combined in the one review application.

12. The Tribunal referred the review applicant to her application for review which does not list the visa applicant’s husband or her four children.

13. The Tribunal informed the review applicant that Australian migration law does not permit her to combine the other members of the visa applicant’s family as applicants for review.

14. After the hearing on 20 September 2016, the Tribunal received a written submission from the review applicant to the effect that the application for review form did not have sufficient space to include the visa applicant’s husband and children. The review applicant requested that the husband and children be added to the application for review because the whole family needs to visit to Australia for her wedding. 

    No jurisdiction in relation to the visa applicant’s husband and her four children

15. For the reasons above, applications for review in cases such as this, cannot be combined to include other family members.

16. For the reasons above, the Tribunal does not have jurisdiction in relation to the visa applicant’s husband or any of her four children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. In the present case, the visa applicant seeks the visa for the purposes of attending the review applicant’s wedding celebrations on 27 October 2016. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

19. 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)). This criterion does not apply to the visa applicant because she has not ever travelled to Australia.

20. 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:

    ·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.

21. During the resumed hearing on 5 October 2016, the Tribunal received oral evidence from the visa applicant about her intention to comply with the above conditions.

22. She said she does not intend to work or study if she is granted a visa to visit Australia.

23. She said she would not apply for another visa after she came to Australia as a visitor.

24. The visa applicant told the Tribunal that even if she is granted a 3 month Visitor visa she would only stay in Australia for one month because of her commitments to her husband who farms their land; her commitments to her children who attend school and her own studies. She also said that she needs to return to Turkey because she is studying for middle school qualifications in order to obtain her driving licence. 

25. The visa applicant said she lives with her family at their vegetable farm outside the city of Sahinbey, on its eastern side. She said that in her location she has no fears for her personal safety and that she does not fear persecution for any reason.

26. The Tribunal has also considered all other matters relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.  (cl.600.211(c)).

    Personal matters

27. The Tribunal received oral evidence that the visa applicant’s immediate family, being her parents and four siblings, all reside in Australia.

28. The visa applicant said she has aunts and uncles in Turkey to whom she is “quite close.”

29. She said that her husband has many relatives in Turkey who live close by and they have a good relationship.

30. The Tribunal put it to the visa applicant that if she visited Australia, the fact of her immediate family all being in this country would be a strong incentive for her to stay in Australia beyond the term of her visa. She said that the reason she would leave before her visa expired are that her husband has to work his vegetable farm and her children need to attend school. She said she has established her life in Turkey and for that reason would return there.

    Financial, employment and property matters

31. The visa applicant confirmed that she does not work but rather stays at home caring for her children. Her husband owns the house in which they live and they have two motor vehicles. 

32. The visa applicant gave oral evidence that she previously owned a house in Ciftsogut, Gaziantep Province, and sold it. She said she sold the house because she does not need it. She said that the funds deposited in her bank account were the proceeds of her house sale.

33. The visa applicant said she personally does not currently own any real estate. However, her husband owns the land upon which, with assistance from “lots” of employees, he grows herbs and vegetables. The visa applicant did not know the size of her husband’s farm.

    Conditions in the visa applicant’s location

34. The visa applicant gave oral evidence that she lives on the eastern outskirts of Sahinbey in Gaziantep Province.

35. The visa applicant told the Tribunal that her family enjoys a comfortable lifestyle and they do not have any concerns for their personal safety.

36. The visa applicant said her home is “quite far” from the Syrian border. The Tribunal put it to her that the distance could be less than 50 kilometres. She said she did not know.

37. The Tribunal’s research ( indicates that the distance by air from Sahinbey to Aleppo is 88.06 kilometres. The Tribunal notes that Sahinbey and Aleppo appear to be equidistant from the Syrian border, meaning that Sahinbey is likely to be less than 50 kilometres from the Syrian border.  

38. The Tribunal referred the visa applicant to country information that there has been a significant influx of refugees into Turkey, including from nearby Syria. The Tribunal asked the visa applicant her experience in relation to refugees currently in Turkey. She said she has no knowledge of refugees in Turkey.

39. The Tribunal referred the visa applicant to country information (in smarttraveller.com.au on Turkey) that  indicates conflicts between the PKK and Turkish security forces are such that Australia’s Department of Foreign Affairs and Trade (DFAT) advises travellers to reconsider their need to travel to Gaziantep Province where the visa applicant resides. The visa applicant said that nothing happens where she lives.

    Findings

40. The Tribunal has weighed the documentary and oral evidence in this case and now makes findings.

41. The Tribunal accepts that the review applicant and the visa applicant are sisters in consequence of the translated family register which lists the visa applicant as the eldest child of the same parents as the visa applicant who is their third child.

42. The Tribunal acknowledges that the review applicant, her fiancé and the rest of the family in Australia are extremely keen for the visa applicant (and her family) to attend the review applicant’s wedding celebrations planned for later this month. The review applicant told the Tribunal several times that if the visa applicant does not attend her wedding that will make her very sad on her wedding day. While that may be the case, the task for the Tribunal is to determine whether the visa applicant genuinely intends to visit Australia and making that decision does not extend to consideration of her family’s upset if she cannot attend.

43. The Tribunal finds that the visa applicant does not have an obligation to return to employment in Turkey.

44. The visa applicant’s major asset appears to be money in her bank account from the sale of a house. The Tribunal considers those monies could be easily transferred to Australia and thereby enable the visa applicant to fund further stay in this country.

45. The visa applicant said her studies in Turkey would be a reason to return to her home country. The Tribunal considers that the visa applicant could undertake driving lessons if she were to remain in Australia and gives no weight to that claim.

46. The Tribunal notes that the Australian government’s website smartraveller.gov.au on Turkey includes the information that currently there are approximately two million refugees in Turkey from Syria and Iraq. The Tribunal finds the visa applicant’s response that she has no knowledge of refugees in her location is implausible. She clearly leaves her home to attend school classes and would also do so for the purpose of shopping and other matters related to her children. The Tribunal does not believe this aspect of the visa applicant’s oral evidence and considers it reflects poorly on her credibility.

47. As the Tribunal does not have jurisdiction in relation to the visa applicant’s husband and children, they would remain in Turkey if the visa applicant was granted a Subclass 600 visa in consequence of this review. The Tribunal considers that the fact of the visa applicant’s husband and four children, aged from 10 to 2 years, remaining in Turkey may act as incentive for her to return to Turkey from Australia.

48. Under normal circumstances, the Tribunal accepts that the visa applicant’s family links in Turkey may constitute an incentive to return to her home country after visiting Australia. However, the prevailing conditions in southern Turkey as outlined above, coupled with political tensions generally in consequence of the coup in July 2016 to overthrow the government; the terrorist attack on Istanbul’s Ataturk airport on 28 June 2016 that killed 47 people and injured more than 250; and four other terrorist attacks in Turkey earlier this year resulting in multiple deaths, constitute in the Tribunal’s view, very strong disincentives to return to Turkey. Additionally the visa applicant’s very strong family links in Australia constitute a powerful incentive for her to remain in this country.

49. On consideration of all the evidence provided in relation to this case and taking into account other material before the Tribunal as outlined above, the Tribunal considers the visa applicant has more incentives to remain in Australia than to return to her home country before any visitor visa expires.

    Conclusions

50. On balance, the combination of the factors listed above leads the Tribunal to find that the visa applicant’s expressed intention to visit Australia is not genuine.

51. 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

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

    Deborah Morgan
    Member