Bolat (Migration)

[2018] AATA 808

Bolat (Migration) [2018] AATA 808 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Zehra Bolat

VISA APPLICANTS:  Mrs Cemile Erkan
Mrs Zeynep Erkan

CASE NUMBER:  1707921

DIBP REFERENCE(S):  BCC2017/15448

MEMBER:Ian Garnham

DATE:28 February 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 February 2018 at 4:43pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Seeking to visit their sister – Multiple siblings in Australia – Parent’s deceased – Home in Turkey to be demolished – Previous visitor applications refused – Unsatisfactory evidence of finances to support their visit – Not a genuine temporary entrant

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.211, 600.231, 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 Immigration on 4 April 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 23 December 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because they were not satisfied that the applicants genuinely intend to visit Australia temporarily.

5. The review applicant initially appeared before the Tribunal (differently constituted) on 29 May 2017.  After this hearing this matter was re-constituted to another member.

6. The review applicant appeared before the Tribunal on 26 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, Mr Murat Bolat.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

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

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 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.

   Background:

10.The review applicant is one of a family of seven children who all formerly lived in Turkey.  The review applicant came to Australia on 23/03/2005 on a subclass 300 (prospective marriage) visa.  She is 48yo and became an Australian citizen on 08/11/2011.  She has a 52yo sister (Hatice) who also lives in Australia since 1989.  The review applicant’s youngest brother (Ali) is 34yo and came to Australia on 31/12/2012 on a student visa.  He is still in Australia and lived with the review applicant and her husband in their 4 bedroom rented house, along with the review applicant’s 10yo child and a grandson of the review applicant’s husband from a previous relationship who is 5yo.

11.I note that Ali lodged a subclass 820 (onshore partner) visa application with the department (DIBP) on 20/06/2017.  At the hearing the review applicant’s husband said that Ali wanted to return to Turkey when he completed his studies but a Turkish lecturer fell in love with him and would not let him return.  Ali is now married and living independently with his partner.     

12.The visa applicant’s Cemile (43yo) and Zeynep (37yo) live in Turkey with a brother, Gafur who is 46yo.  A further 41yo brother, Kadir lives in Russia and has done so for 5-6 years but often visits his family in Turkey.  The parents died in 2011 and 2012.

13.In the present case, the visa applicants seek the visas for the purposes of visiting their sister in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

Previous Travel:

14.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)).

15.One of the visa applicants (Cemile) has previously travelled to Australia on a tourist visa granted on 19/07/2007 that had effect until 06/02/2008.  She arrived on 06/08/2007 and departed on 27/01/2008.  There is no evidence before the tribunal that the visa applicant failed to comply with her visa conditions during this period.

16.This previous travel by one of the visa applicants presents as a positive factor in my consideration of these applications.  However, I must also consider that the travel occurred over 10 years ago and that the circumstances for this family have changed significantly since the travel occurred.

17.The other visa applicant (Zeynep) has not travelled to Australia or to any country outside Turkey.

Likely compliance with visa conditions:

18.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.

19.The likelihood that the visa applicants will comply with the above conditions turns on their incentives to return to Turkey balanced against their incentives to seek to remain in Australia.  I am mindful that should the visas be granted five of the seven siblings will be present in Australia.  The parents are now deceased and only one sibling would be present in Turkey.

20.Both of the visa applicant’s create income by making cakes when they are ordered.  They also share their father’s pension of approximately $450(AUD)/month which was also claimed at the 1^st hearing.  The visa applicants and Gafur currently rent a house together.

21.The visa applicants are also custodians on their parent’s former home of which all the children are joint owners.  The house is currently rented out and will be demolished and redeveloped.  They claim that this also forms a major incentive for them to return to Turkey.  However, overseas assets can easily be liquidated and while I acknowledge an inherited home does provide some incentive it is not necessarily determinative when considering a person’s incentive to return.

22.The review applicant and her husband are currently in receipt of Social Security and Family Tax Benefits in the approximate sum of $800/fortnight.  The review applicant’s husband claims that he also gets money from odd jobs and that they have approximately $200,000 invested in his fledgling grass growing business. 

23.I note that in the applications the visa applicant’s both claim that the review applicant’s will provide; accommodation, medical, hospital cover, return airfares and any other expenses incurred while in Australia.  With the initial application to DIBP the review applicant provided a bank statement from a business (Mube Enterprises) with the same address as the review applicant[1].  I have noted that the account held minimum funds in the period 07/11/16 to 11/12/16 and that deposits of $5,400 on 12/12/16 and $3,000 on 14/12/16 led to a balance of $8,413.49 on that date.  At the hearing the review applicant said that the visa applicants could provide some funds towards their costs.

[1] At F:14 (DIBP)

24.I am not satisfied that the visa applicants have demonstrated the ability, by themselves or, in combination with the review applicant to provide for their financial expenses to travel to and stay in Australia for the purpose they have set out in the application.     

Other relevant matters:

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

26.Over the course of this application the review applicant has provided extensive medical information that indicates the review applicant would have difficulty travelling to Turkey and that a visit from the visa applicant’s sisters would be beneficial to her health and wellbeing.   

27.The review applicant has provided the following medical information:

·Letter from Rheumatologist dated 11 February 2015 confirming the review applicant suffers from Fibromyalgia and Plantar Fasciitis

·Letter from Haematologist dated 7 July 2015 confirming the review applicant suffers from deep vein thrombosis and probable lupus

·Letter from Psychiatrist dated 25 March 2015 confirming the review applicant has Adjustment Disorder with depressed and anxious mood

·Letter from Rheumatologist dated 13 April 2015

·Letter from Psychiatrist dated 2 August 2015

·Letter from Haematologist dated 7 August 2015

·Letter from Ophthalmologist dated 28 August 2015

·Letter from Dermatologist dated 20 November 2015

·Letter from Immunopathologist dated 29 December 2015

·Letter from Psychiatrist dated 19 January 2016

·Letter from Haematologist dated 5 February 2016

·Letter from Psychiatrist dated 11 February 2016[2]

[2] At FF:2-12 (AAT)

28.At the hearing the review applicant provided the following further medical information:

·Letter from Accredited Mental Health Practitioner and Counsellor dated 06/10/2017 stating the review applicant has multiple medical problems and major chronic depression and anxiety since 2010.  She has participated in treatment since 2011.  The review applicant would benefit from contact with her sisters.[3]

[3] At F:56 (AAT)

·Letter from General Practitioner dated 05/10/17 confirming there has been no improvement in the review applicant’s medical conditions.[4]

[4] At F:57 (AAT)

·Letters from The Northern Hospital dated 04/10/17 and Broadmeadows Health Service dated 17/10/17 confirming the review applicant is on the waiting list for varicose vein surgery.[5]

[5] At F:60 & 61 (AAT)

29.At the hearing the review applicant’s husband advised that the review applicant will have varicose vein surgery during January 2018.  

30.Hatice lives with her two teenage children she is separated from her husband who has returned to Turkey.  The review applicant provided a copy of a letter from Hatice’s Psychiatrist dated 24 October 2017.[6]  It states she has a history of breast cancer, hypercholesterolaemia, hypertension and depression.

31.The review applicant has returned to Turkey on three occasions and most recently in early 2012.  I accept and acknowledge that it would be difficult for the review applicant to travel to Turkey to spend time with the visa applicants.

32.The tribunal suggested that a single application by one of the visa applicants may be reviewed more favourably because this would leave a greater incentive for the sibling travelling to Australia to return to Turkey.  Initially the review applicant and her husband reacted negatively to this proposal.  However later in the hearing they indicated that if one was remitted it should be Zeynep because Cemile has already visited Australia.

33.Both visa applicants failed to acknowledge previous applications for visitor visas that have been refused by DIBP in the applications.  DIBP records indicate that Zeynep had 2 refusals made in 2012 and a further 2 refusals in 2016, and that Cemile had refusals made in 2007 and 2016.  

34.At the hearing the review applicant and her husband said a friend in Australia filled out the application forms and they were posted to the visa applicant’s for signing and they returned them.  The review applicant said that her husband filled out the applications and took them to an agent for checking before they were mailed to the visa applicants for signing and then returned for lodgement in Australia.

35.I found that review applicant and her husband’s responses to these omissions unsatisfactory and unconvincing.  Clearly a strong desire to have the visa applicants visit the review applicant has been present for some time.  It is also perceived as important for the health and wellbeing of the review applicant, the medical information confirms this.  I do not think it is plausible that the review applicant, her husband or agents who assisted her could have forgotten these relatively recent applications by the visa applicants.  In any event the visa applicants themselves are responsible for the information contained in their own applications and this crucial information should have been included therein. 

36.After careful consideration of all of the information that the applicants have provided, for the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend 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.

[6] At F: 59 (AAT)

DECISION

37.The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

Ian Garnham
Member