Balta-Erkoc (Migration)

[2018] AATA 2488

Balta-Erkoc (Migration) [2018] AATA 2488 (18 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nuray Balta-Erkoc

VISA APPLICANT:  Mr Osman Balta

CASE NUMBER:  1721727

DIBP REFERENCE(S):  BCC2017/3134077

MEMBER:Mary Urquhart

DATE:18 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 June 2018 at 1:10pm

CATCHWORDS

Migration – Visitor (Class FA) – Subclass (Visitor) – Genuine temporary entrant – Tourist stream – Visit family – Poor immigration history – Breach of previous visa conditions – Family ties in Turkey and Australia – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.221, 600.222

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 6 September 2017 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, Mr Osman Balta, applied for the visa on 30 August 2017. 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 Tourist stream.

3. The review was heard in a combined hearing with application 1721738 the review of a refusal of a visa for the applicant’s wife Mrs Cevriya Balta.

4. 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.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he/she was not satisfied the applicant genuinely intends to stay temporarily in Australia nor abide by the conditions of the visa.

6. The review applicant, Mrs Nuray Balta-Erkoc appeared before the Tribunal on 15 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Murat Erkoc, Ms Halenur Kurmus and from the visa applicant Mr Osman Balta and his wife Mrs Cevriya Balta by telephone from Turkey. 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 by her registered migration agent.

8. Prior to the hearing the Tribunal received further material lodged in support of the visas.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

12. 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)).

13. The applicant’s immigration history in Australia, discussed at the hearing, reveals that he came to Australia on a Visitor visa in 2009. He did not depart within validity of the visa and applied for permanent visa, a Carer visa, in Australia. The application for a Carer visa was refused. The applicant sought a review with the Migration Review Tribunal (MRT) as it then was. The MRT upheld the decision and the applicant departed in compliance with his Bridging visa in January 2013.

14. The applicant was refused a Visitor visa in 2016.

15. 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.

16. The Tribunal considers the likelihood that the visa applicant will comply with the above conditions depends on the strength of his incentives to return to Turkey balanced against the strength of incentives to seek to remain in Australia.

17. The Tribunal finds on the evidence there is no suggestion that Mr Balta would fail to comply with visa condition 8201-not engage in study or training in Australia for more than 3 months. He is aged 70. The Tribunal notes that the applicant is in receipt of a pension. However, the applicant claims to still work. The work he claims to do is farm work growing crops; it was described as a “hobby farm”. No independent evidence concerning this activity was provided to corroborate the claim. However as the Tribunal is prepared to accept that the applicant is not fully retired it follows the applicant may be tempted to work in Australia in breach of condition 8101.

18. The Tribunal is mindful that ownership of rented property or farmland is an asset that can be sold or looked after by others; indeed evidence was given of others who would look after the crops for the 6 months of the visit sought if it were granted. The Tribunal does not consider that the applicant has property or any employment which would provide sufficient incentive for him to return home at the end of any visit.

19. The applicant is married and is seeking to travel to Australia with his wife, as he did in 2009. The applicant lives with one of his three children in Turkey being a divorced daughter and her child;  an adult grandson aged 19 who is studying is also living with him and his wife. The grandson’s father is remarried with a new young family and resides in Austria.

20. The applicant has a married daughter Mrs Nuray Balta-Erkoc and three grandchildren in Australia. The Tribunal accepts that the applicant has family ties in Turkey; however, equally, he has family ties in Australia.

21. Mrs Nuray Balta-Erkoc, the review applicant, resides in Australia with her husband and three children she gave extensive evidence. Much of her evidence was given about her desire to have her parents present at a reception following a planned circumcision ceremony for their grandson, her the 9 year old boy. The applicant also spoke of his desire to attend.

22. The Tribunal noticed irregularities regarding the different dates given in two documents showing the booking of a venue for the party, after a second change to the date. The evidence given by the review applicant is that she has had to change the date of the party some 3 times and was asked by the venue operator to white out her contract and change the date.  She was unable to say what date the venue is currently booked for. She claimed however in evidence at the hearing that the date of the party is dependent on a visa for her parents. She further claims she has other relatives of her husband who have been granted visitor visas and who are waiting for her to let them know when to come to Australia for the party. The Tribunal finds the review applicant’s evidence to be unreliable. Whilst the Tribunal accepts the applicant would attend the circumcision ceremony and party if he was in Australia the Tribunal never the less formed a view that the evidence regarding the ceremony was exaggerated in order to strengthen the applications for visas. The Tribunal finds it unsatisfactory evidence in support of a genuine temporary visit and particularly so when looked at in conjunction with all the other evidence.

23. The Tribunal has significant concerns with the applicant’s past  immigration history in Australia and finds it calls into question whether he genuinely intends to stay temporarily in Australia if granted a visa.

24. The Tribunal notes and gives weight to the evidence that the applicant sought to obtain a permanent visa whilst visiting his daughter and her family after arriving on a visitor visa in 2009.

25. Evidence was given, by way of excuse, that at the time of the visit in 2009, the applicant’s daughter was pregnant and gave birth; she also had a broken collar bone and required surgery. It was claimed the applicant and his wife only sought a permanent visa (Carer visa) to remain to look after her. The Tribunal accepts the applicant’s daughter may have been in need of assistance however it formed the view that the actions of the applicant and his wife, in seeking to remain as they did until 2013 demonstrated a disregard for the importance of the  visa conditions on which their visas had first been granted.

26. The Tribunal discussed with all parties and witnesses country information provided by the Department of Foreign Affairs and Trade (DFAT) regarding the current security situation in Turkey. DFAT highlights civil and political unrest and insecurity in Turkey. There has been a State of Emergency declared since a failed coup in 2016. Only one witness, the applicant’s son in law Mr Erkoc seemed aware of the reported situation. He also gave reliable evidence agreeing with reports that the economy in Turkey had slipped and money had been devalued.

27. The Tribunal accepts the view contained in recent reports DFAT that indicate civil disruption, lawlessness and political upheaval; it notes that Ankara and Istanbul are on high alert regarding possible terrorist threats. The Tribunal accepts there has been a State of Emergency declared for two years since a failed coup in 2016.

28. The Tribunal notes the applicant sought a Visitor visa in 2016. It was refused.

29. The Tribunal formed the view that the current and continuing security and economic circumstances in Turkey may act as a disincentive for the applicant to return home.

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

31. 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

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

    Mary Urquhart
    Member