2314893, 2314885, 2314890 (Migration)

[2024] AATA 1896

2314893, 2314885, 2314890 (Migration) [2024] AATA 1896 (8 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ray Turner

CASE NUMBER:  2314893

2314885

2314890

MEMBER:Linda Holub

DATE:8 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 8 May 2024 at 4:41pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – trigger for the requirements of section 359AA – incentives to remain in Australia – strong family connection in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 10 August 2023 to refuse to grant the visa applicants a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The visa applicants applied for the visa on 17 April 2023. At the time the applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In these cases the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3.    The visa applicants were refused visas after which review applications were lodged in respect of all three refusal decisions. Prior to and at hearing, the review applicant agreed to a combined hearing in relation to the applications.

4. 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.

5.    The delegate refused to grant the visa on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied that the applicants genuinely intend to stay temporarily in Australia for the purposes set out above. The delegate was not satisfied that the applicants demonstrated sufficient ties meriting their intention to depart Australia. The delegate found that the applicant’s claimed incentives to return home were outweighed by their incentives to remain in Australia and also found that the purpose of the applicant’s intended travel, does not alone demonstrate that the applicants only intend a genuine visit.

6.    The review applicant appeared before the Tribunal on 11 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants, their mother, grandmother, and the review applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

7.    The review applicant was represented in relation to the review.

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

BACKGROUND

9.    The review applicant is the aunt of the visa applicants. She was born in [year]. Department records indicate that she first arrived in Australia in December 1992 travelling on her [Partner] visa. In May 1998 and June 2004, she was granted Resident Return (BB 155) visas and became an Australian citizen by grant in March 2007.  

1. The visa applicants were born in Türkiye in [year], [year] and [year] respectively and are citizens of Türkiye. In their applications they state they intend to visit Australia for a period of up to twelve months from April 2023 until April 2024 for a family visit, noting that at the time of application they sought to enter Australia to visit family during the reparation efforts in Türkiye. Their mother, two aunts, cousins and their maternal grandmother reside in Australia. They state that in Australia they will be supported by their mother via her Australian family members. 

Information provided to the Department

1. The following information was provided to the Department:

   ·     a statement prepared by the applicants’ nominated representative, dated 17 April 2023

   ·     screenshots of a number of remittance receipts, made between 2022 and 2023.

   ·     photo submissions.

   ·     statement of the review applicant confirming her relationship to [Ms A], her sister, dated 29 March 2023.

   ·     Relevant Republic of Turkey Identification Cards.

   ·     Republic of Turkey Identification Card of [Ms B], valid [to] 2032

   · Australasian Legal Information Institute copy of decision and reasons in respect of Kohli (Migration) [2019] AATA 6432 (7 November 2019).

   ·     news article published by the Sydney Morning Herald, titled ‘Everyone’s panicking’: Australia’s Turkish community fears for loved ones, published 7 February 2023.

   ·     Parliamentary media release: Australia’s Disaster Response Team returns from Turkiye, published 25 February 2023.

   ·     news article published by Al Jazeera, titled Death toll climbs above 50,000 after Turkey, Syria earthquakes, published 25 Feb 2023.

   ·     Commonwealth Bank, Business Transaction Account of [the review applicant] AND [name] for the period 31 Dec 2022 – 30 Mar 2023.

   ·     Commonwealth Bank, confirmation of account details of [the review applicant] AND [Mr C], dated 21 April 2023, and Commonwealth Bank confirmation of account details and transactions of [the review applicant] & [name] from 1 April to 21 April 2023.

Submissions received by the Tribunal

1. At the time of lodgement, no additional documents had been provided to the Tribunal in support of the applications for review.

2. On 15 March 2024 the Tribunal wrote to the review applicant’s representative seeking the consent of the applicant to attend a combined hearing with the Tribunal in respect of the three applications. On 19 March 2024 the applicant’s representative wrote to the Tribunal providing the consent to a combined hearing.

3. On 20 March 2024 the Tribunal sent the review applicant an invitation to attend an in-person combined hearing at the Tribunal, scheduled for 11 April 2024. In an email dated 4 April 2024, the Tribunal was provided with:

   ·     statements provided by the review applicant and her husband.

   ·     statements provided by the visa applicants.

   ·     evidence of School Enrolment of [the second and third visa applicants].

   ·     evidence of enrolment and qualification in respect of [the first named visa applicant].

   ·     bank statement of the review applicant showing sufficient funds to support the visa applicants while they are in Australia and evidence of fund transfers

   ·     extract of cl 3.10. Complex Visitor Visa Applications from [Sch2Visa600] Subclass 600 (Visitor) visa.

4. The accompanying submission refers to the various statements made in support of the applications and the other documentary evidence. It also refers to relevant Departmental policy.  

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that a 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.

2. In their applications, the visa applicants seek the visa for the purposes of visiting family members during the reparation efforts in Turkey. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

3. 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)).

4. The applicants have not previously travelled to Australia.

5. The Tribunal must also consider whether the visa applicants intend 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.

ORAL EVIDENCE AT HEARING

1. The review applicant confirmed that she came to Australia in 1992 on a Partner visa. She stated that she has since remarried, has one child with the second husband and three with her former husband. She stated that she lives with her husband and their child. Her sister who is currently on a Bridging visa awaiting the processing of her Protection visa application resides with her. She stated that she is renting at the moment but has a house which on which they have a mortgage.

2. The review applicant stated that she is a businesswoman and has owned and operated a [business] in [Suburb 1] for the past 16 years.

3. The review applicant stated that her mother came to Australia 23 years ago on a Partner visa and lives close by.

4. The review applicant gave evidence that the visa applicants live together in a house owned by her in the town of [Town 1], near [City 1], Türkiye. She stated they have lived in that house for about three or four years but immediately after the earthquake that devasted the area they moved to a shed temporarily because it was not safe to be in the house. She stated that she supports them financially.

5. The hearing was told that [the first named visa applicant] who is now [age] years of age is doing a [Discipline 1] course. Her brother [the second named visa applicant] goes to school although the review applicant was unsure about his level at school. The youngest child [the third named visa applicant] is doing a [Occupation 1] course at a vocational education college.

6. The review applicant explained that her sister who is the mother of the visa applicants has been in Australia for about two years. She stated she came on a Visitor visa. She stated her sister had lots of problems with her husband but hadn’t previously told them although they knew she had a bad husband. She stated her sister suddenly said she wants to see them. When she came here, she told them that she is scared for her life and was scared of being killed. The family said to her they could not send her back to him, so she remained in Australia and applied for a Protection visa.

7. The review applicant stated that the father of the visa applicants doesn’t hate the children, he hates their mother. She stated that she doesn’t know if he sees the children, but he doesn’t live with them. She stated that he is looking for her sister but is unsure if he knows where she is. She stated that he said to friends that he will kill her. I asked her if he has pressured the children to ascertain the whereabouts of their mother. The review applicant responded that she is not sure if he sees the children or not. There is an AVO against him but maybe he sees the children.

8. I asked the review applicant who has custody of the children. She responded their mother does. When asked if there is any documentation confirming this, she stated that she doesn’t know and referred to the fact that through her, their mother supports the children financially and remarked that as a result she has custody.

9. I asked her about photographs that had been submitted to the Tribunal because they had not been annotated and it was unclear to me who they showed. She explained that the photographs were of the visa applicants together with her and her family when they visited Türkiye and others showed the temporary accommodation the visa applicants were in following the earthquake.

10. In relation to whether the visa applicants have had any problems in their home country because of their religion or ethnicity or for any political or security reason, the Tribunal was told by the review applicant that they had not.

11. In discussing the incentives for the visa applicants to return to their home country after their visit, the review applicant stated that they love Türkiye, and they have their friends. She stated that [the second named visa applicant] loves [specified sport] and his team. She stated they love their school and schooling is important. They believe that having a profession is very important for them.

12. I put it to her that the visa applicants have a loving family here, their mother, aunt, grandmother and it appears that there are significant incentives for them to remain in Australia. She responded they would like to return to Australia in the future and that they would seek to migrate here once they have their qualifications. I asked her if she wants to address my concern more specifically. She responded they want to return to Türkiye because they don’t want to affect the mother’s protection visa.

13. The applicant’s migration representative made oral submissions that if I’m putting concerns to the applicant pursuant to section 359AA and agree with the Department’s decision, I am obliged to offer the review applicant an adjournment.

14. I responded that I was putting my own concerns to the review applicant unrelated to the delegate’s decision and therefore was not putting the concern to the review applicant under section 359AA. I acknowledged that had I been putting adverse information to the review applicant that the requirements of section 359AA would be triggered. I went on to explain that I had been making a more general point that in the course of a undertaking a review, I am required to put concerns to a review applicant and to give them a chance to respond any concerns put.

15. I also explained that sometimes applicants don’t realise that a concern may lead to a decision being affirmed and I was explaining this to the applicant and was not referring to the reasoning of the delegate in refusing to grant the visas.

16. I explained the interjection of the migration representative to the review applicant and my response to him.

17. The review applicant stated that the children have great aunts in Türkiye, and they see their paternal grandmothers.

18. When asked if they have any other incentives, she stated they have family and they have good relations with her aunts.

Evidence provided by the visa applicants’ mother – [Ms A]

1. The visa applicants’ mother stated that the visa applicants want to come and spend time with her and return to Türkiye. She stated they live by themselves, but their friends and other family members watch over them. She stated because of the problems she had with her husband the visa applicants don’t see or talk to the father.

2. The hearing was told that the eldest visa applicant is preparing for her university entrance exams and that she is currently a student in her first year of [Discipline 1]. The witness stated that [the first named visa applicant] has finished high school and is preparing for university and that she is preparing at home. When I sought clarification, I was told that [the first named visa applicant] is not currently enrolled in any institute and that if she is successful in her university exams she will go to university. The exams are held in June.

3. The visa applicants’ mother stated that [the second named visa applicant] is in his last year of high school, and he is also preparing for the university entrance exams and that [the third named visa applicant] is a student and is studying to be a [Occupation 1].

4. The visa applicants’ mother stated that the visa applicants miss her and after they spend time with her they will return to Türkiye as they want to finish their education. She stated they do not speak English, so they have to finish their education. She stated their education is important and they will go back.

Evidence provided by [the first named visa applicant]

1. [The first named visa applicant] stated that she is preparing for her university exams. She stated that she and her brothers look after each other and their mother sends them money. She stated that her mother’s aunt and uncle check on them sometimes.

2. [The first named visa applicant] stated they do not have any contact with their father.

3. When asked how long they intend on staying in Australia, she responded they can only stay as long as the visa grant and they have school. I explained that I understand they cannot stay beyond the grant of the visa but was asking about their intentions. She stated their holiday break is for six weeks so they can only stay for six weeks and then must return to school.

4. I talked to [the first named visa applicant] about the incentives to return to Türkiye. She stated they have a life there and they have school and want to follow their careers. She stated they are adapted to their county and school.

Evidence provided by [the second named visa applicant]

1. [The second named visa applicant] stated that he attends school and that he finishes in June and after his holidays school starts again but that he will be sitting his university exams in June.

2. [The second named visa applicant] stated that the incentives for him to return include school and because he plays [specified sport], he has to return.

Evidence provided by [the third named visa applicant]

1. [The third named visa applicant] stated that they have no contact with their father and that they look after each other, and their mother’s aunt and uncle come and check on them. He stated that the incentives for him to return are his studies as he wants to be a [Occupation 1]. He stated that school and his career are the main incentives for him to return if he is permitted to visit.

Evidence provided by the review applicant’s husband – [Mr C]

1. The review applicant’s husband stated they expect the kids to have a short-term visit. He stated that they had not seen the visa applicants for a long time and that their visit would be an opportunity for them to see each other. He stated that he believes that the visa applicants need this visit, and he feels it will motivate their future.

Evidence provided by the review applicant’s mother - [Ms D]

1. The review applicant’s mother stated she wants her grandchildren to come to visit the family during their holidays. She stated then they have their school, and she wants them to have a short visit. She stated that she hasn’t seen them for a long time and that the visa applicants have cousins in Australia to see. She stated she wants to see them and after that they need to prepare for uni. She stated they are young and want to come to see Australia and can talk about it to their school friends.

Further submissions from the applicant’s migration representative

1. The representative noted that I had expressed concerns regarding the visa applicants’ genuine intention to stay in Australia temporarily. He stated he had further submissions to make, and it was agreed he would put in writing by 24 April 2024.

Post-hearing submissions

1. On 24 April 2024, the review applicant’s representative submitted a further written submission referring to Policy of the Department of Immigration at 3.10 and as referred to and relied upon by the AAT in Kholi (Migration) 2019 AAT 6432 (7 November 2019) per Susan Trotter Member at 41

“Intention to make a further application in Australia

If an applicant applies for a visitor visa but intends to make a further visa application in Australia (whether this intention is stated or not), this does not necessarily indicate that the applicant does not intend a genuine temporary stay and is not a reason in and of itself to refuse the visitor visa. If the Regulations allow an application to be made in Australia by an FA-600 visa holder in Australia, s65 delegates should not be seeking to block this pathway.

In addition, an intention to apply for a further visa in Australia does not necessarily indicate that the person will not leave Australia before the FA-600 visa ceases. The question to consider is not “will this person apply for a visa in Australia” but rather, “if this person does not apply for another visa in Australia, or if they apply and are refused, will they abide by the conditions of the visa and will they leave Australia”. The answer to this will help to determine if the applicant intends a genuine temporary stay.”

1. The submission also referred to a number of Federal Court judgements and states that in summary, the evidence of the children and their Australian relatives is that they are only coming to Australia for a visit and will leave Australia before their visa expires. It states there is no reasonably probative evidence before the Tribunal that they would breach their visa conditions.

2. It was submitted that the requirement for the Tribunal to base its findings in reasonably probative evidence is established by the Federal Court in Minister for Immigration and Ethnic and Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 4 (31 July 1980) and Commissioner of Taxation v Rawson Finances Pty Ltd [2013] FCAFC 26; 133 ALD 39.

3. The submission also states that the Australian family is prepared to pay any reasonable bond set by the Tribunal and the Department of Immigration.

4. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

FINDINGS

1. The Tribunal accepts that the visa applicants wish to visit their family in Australia and that their family would like them to be able to visit. The Tribunal accepts that the witnesses believe that the visa applicants genuinely intend to stay temporarily in Australia.

2. The Tribunal accepts that the review applicant can and will support the visit financially and notes that she already provides financial support to them on an ongoing basis.

3. The Tribunal accepts that the visa applicants have not experienced any problems in Türkiye for any reason related to their religion or ethnicity or for any political security and accepts that the visa applicants once again reside in their family home.

4. The Tribunal however had concerns that the incentives for the visa applicants to remain in Australia outweigh those that exist for them to return to Türkiye. In this regard the Tribunal has taken into consideration the oral evidence provided that the visa applicants care for themselves although their mother’s aunt and uncle and friends check on them from time to time. Further, oral evidence was provided that the visa applicants do not have contact with their father. On the other hand, the Tribunal has had regard to the fact that their mother, aunts and grandmother all reside in Australia, and that the review applicant supports them financially. The Tribunal is of the view that this higher level of family connection and support is in itself an incentive for the visa applicants to remain in Australia. The Tribunal has taken into account the age of the visa applicants in its findings.

5. The Tribunal has had regard to the claim made by the review applicant that they love Türkiye. The Tribunal accepts this is the case and cannot see why their love of Türkiye would be diminished if they remained in Australia. The Tribunal also accepts that their friends are important to them as is [the second named visa applicant]’s love of his [sport] and his team but is not satisfied that these incentives outweigh the incentives of remaining with their mother and other close family members. The Tribunal also accepts that the visa applicants love their school, and they believe that schooling and having a profession is very important for them. However, the Tribunal has taken the view that their interest in education and careers could over time be addressed in Australia.

6. The Tribunal is cognisant of the Department’s policy in relation to Complex Visa Applications and other relevant policies as submitted in the written submission. The Tribunal must nevertheless take account of the current situation regarding the visa applicants and the stated incentives for them to return to the home country. On balance based on the written submissions and the oral evidence provided, the Tribunal is of the view that the incentives for them to remain in Australia outweigh the incentives for them to return to Türkiye.

7. While the Tribunal is sympathetic to the situation involving the visa applicants’ separation from their mother, 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

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

Linda Holub
Member