BATUMAN (Migration)

[2022] AATA 182

BATUMAN (Migration) [2022] AATA 182 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yunus Emre BATUMAN

VISA APPLICANT:  Miss Eda BATUMAN

CASE NUMBER:  2001066

HOME AFFAIRS REFERENCE(S):          BCC2019/6989327

MEMBER:Mark Bishop

DATE:24 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 24 January 2022 at 12:47pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s family responsibilities in Turkey – no employment – limited economic ties to home country – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 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 21 January 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 4 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 Tourist 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.

5. In this review application the Review Applicant (RA) is Mr Yunus Emre BATUMAN  and the Visa Applicant (VA) is Miss Eda BATUMA. The RA appeared before the Tribunal on 24 January 2022 to give evidence and present arguments. The wife of the RA also gave evidence to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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. 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.

11. Clause 600.211 requires that:

    The applicant genuinely intends to stay temporarily in Australia for the purpose for which the

    visa is granted, having regard to:

    (a) 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; and

    (b) whether the applicant intends to comply with the conditions to which the Subclass 600

    visa would be subject; and

    (c) any other relevant matter.

12. The delegate made the following findings

    “My decision is based on the following factors

    ·You have stated on your visa application form that you wish to travel to Australia. Whilst acknowledging your intentions; I must also consider other factors in assessing this application. The Migration Regulations state I must be satisfied you are going to visit Australia on a temporary basis and that you will comply with any conditions of your visa. Part of this assessment is whether there are incentives and ties to your home country or elsewhere that would encourage your departure from Australia at the end of your proposed visit.

    ·Based on the information before me I am not satisfied that you have adequate means to pay for the travel and to support yourself, or access to adequate means to support yourself during the period of intended stay in Australia. You do not have any assets or savings of your own. You did not provide any documentation regarding your employment ties in Turkey. As such, your economic circumstances would not present an incentive for you to return to Turkey at the end of your proposed visit, given the comparatively greater economic opportunities, which might encourage you to remain in Australia.

    ·There is no evidence before me that you have previously travelled outside of Turkey. While I do not draw any adverse conclusions from your lack of international travel, I am unable to give weight to past compliance with immigration laws as a positive indication that you would leave Australia at the end of your proposed visit.

    ·After reviewing the information submitted with this application I am satisfied that, there have been no major changes in your circumstances since your last refusal. I am not satisfied that you have provided sufficient evidence to satisfy me that you intend a temporary visit to Australia.

    Decision

    ·As clause 600.211 is not satisfied, I find the criteria for the grant of a Visitor (Tourist) visa in the Tourist stream are not satisfied. Therefore, I refuse the application by the applicant for a Visitor (Tourist) visa in the Tourist stream.”

13. In evidence the RA advised as follows:

    ·The RA has lived in Australia for 5 years and has been a permanent resident for 2 years. He is married with one child and lives and works in Wollongong.

    ·The RA advised the VA is unmarried, has no children and lives with her parents in Turkey on the south west coast in Adana near the Mediterranean Sea.

    ·The VA has not worked for the last 2 years and has been looking after her mother.

    ·The VA does not own any assets in Turkey and does not have title to any property.

    ·The VA has not travelled outside her home country.

    ·Originally the VA was to visit Australia to provide childcare help to her then recently born niece as the RA and his wife were working 7 days per week.

    ·In evidence the RA advised the now purpose of the trip was to look after the families’ child and see her family in NSW (her brother the RA and his family)

14. The VA did not attend the hearing.

15. The wife of the RA also gave evidence (Mrs Sanuye Batuman). She advised the RA did not have any family in NSW. She advised the purpose of the visit of the VA was to look after her niece and spend time with the RA and his family in NSW.

16. Excluding her family the RA has demonstrated few commitments, ties or personal circumstances of the VA in Turkey for the Tribunal to consider in this review application. Having considered all the information provided in the application form and information on the Tribunal and Departmental files plus the evidence of the RA and the wife of the RA the Tribunal finds that the VA has failed to demonstrate that she has sufficient economic, personal, or cultural ties remaining to Turkey that would induce her to return home within the validity of the visa. In addition it appears to the Tribunal there is an element of work involved in the possible visit of the VA to Australia. Both the RA and his wife made reference to this aspect. However as the VA did not attend the hearing the Tribunal does not make a finding on this point. The Tribunal is unable to find the VA would have any incentive to return to her home country.

17. 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

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

    Mark Bishop

    Member