Durmaz (Migration)

[2019] AATA 403

Durmaz (Migration) [2019] AATA 403 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Oztekin Durmaz

VISA APPLICANT:  Mr Gokhan Durmaz

CASE NUMBER:  1728328

HOME AFFAIRS REFERENCE(S):           BCC2017/3230405

MEMBER:Margie Bourke

DATE:31 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 31 January 2019 at 12:53pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – sponsored family – incentives to return home – sufficient employment, family and social ties – S.359AA Adverse Information – review applicant applied for and refused protection visa three times – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 October 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 applied for the visa on 6 September 2017. 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 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 visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied the applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the tribunal on 17 January 2019 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant via telephone. The tribunal hearing was conducted with the assistance of a telephone interpreter in the Turkish and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing.

7. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Interpreters in the Hearing

8. There were some issues with the interpreters engaged by the tribunal in this hearing.  The hearing attendant advised me that the interpreter who attended the hearing in person to assist with the hearing, had difficulty interpreting the visa applicant’s date of birth during the preliminary procedures. It was not clear whether the difficulty was caused by poor telephone line connection quality, different dialects or accents between the visa applicant and the interpreter, or poor quality interpreting, or a combination of any of these alternatives. I offered the review applicant the opportunity to reschedule, so there was no miscommunication, or lack of understanding in the evidence provided in the review. The review applicant indicated he wished to proceed but the interpreter stated she was not willing to continue.  The review applicant stated he was fine speaking English and the interpreter was only required for the visa applicant.

9. The hearing was adjourned, and as the review applicant had indicated he wished to proceed with the hearing that day, the tribunal endeavoured to engage a telephone interpreter. A telephone interpreter was engaged by the tribunal, and the hearing proceeded. There was some discussion after the telephone interpreter was engaged, and the connection dropped out.  The review applicant stated he would like to see how it went and if he was not content with the telephone interpreter, he would seek another hearing date.  I indicated it was preferable the hearing concluded on one day, and if the interpreter was interpreting accurately, the hearing would proceed.  If there were issues where the interpreter could not hear the visa applicant, or the connection was poor, or the interpreting was not reliable, then I indicated I would postpone the hearing. I indicated I would hear the review applicant’s evidence, and then we would reconnect to the interpreter, and to the visa applicant.  Initially there was difficulty with the visa applicant and interpreter adjusting to the time delay, and not speaking at the same time.  After this the interpreting assistance was clear and without difficulty. The review applicant and the representative advised that the telephone interpreter provided a good service, and the interpreting was of appropriate quality.

10. I advised the review applicant it was most important he felt comfortable in the hearing, and he should ask me to repeat a question, or rephrase a question, if he did not understand it.  I invited the representative to indicate immediately if he had any concerns if either the review applicant or the visa applicant had not understood a question or part of the process.  The review applicant and the representative indicated they understood this, and would advise if they did not understand a question.  The review applicant did ask me to repeat and explain a few of my questions during the hearing.

    The Evidence in Support of the Application

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting his older brother and his family, and travelling with his older brother.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

13. 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)).

14. The evidence before the tribunal is that the visa applicant has never travelled to Australia, and therefore there is no evidence of compliance or non-compliance with Australian visas. The review applicant and the visa applicant both gave evidence that the visa applicant had travelled to the Netherlands, (that they called Holland), and there was no non-compliance with visa conditions.

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 (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.

16. The visa applicant had provided a letter and a translation from his employer with the application for the visa dated 30 August 2017, that he had been approved for four weeks annual leave commencing 20 December 2017.  After the hearing, at the request of the tribunal the visa applicant provided a translated current letter from his employer dated 17 January 2019 confirming the visa applicant had approved annual leave from 1 March 2019 to 30 April 2019. 

17. I accept the evidence that the visa applicant is employed and is committed to his employment. I accept his evidence that he has been employed since 2013 by the same company and values his employment.  I accept this evidence from the visa applicant that he only wishes to visit his brother for the period of his annual leave, and he intends to return to Turkey to resume his employment.

18. I accept the evidence that the visa applicant is the youngest of five brothers, and currently lives with his parents. I accept the evidence of the review applicant and the visa applicant, that the review applicant has returned to Turkey to visit family, and has stayed at his parents’ home, and therefore with the visa applicant as well. I accept the evidence that this has led to a bond between the visa applicant and the review applicant’s son, aged ten. I accept the evidence that the family is close, and at this point in time, the visa applicant has assumed some responsibility for his parents because he resides with them.

19. Both the review applicant and the visa applicant gave evidence that the visa applicant is not married, but he has a girlfriend. I accept the evidence of the visa applicant that his girlfriend is important to him.

20. I have considered the evidence of the visa applicant that he does not intend to work, study, train or apply for a visa when he is in Australia.  I have considered the evidence that he intends to comply with the conditions of the visa, and return to Turkey before the expiration of the visa.

21. I have considered the matters in the Department decision record, particularly that the visa applicant does not have family ties, employment ties, or property or business ties that are of sufficient incentive for him to return to Turkey.  I found the visa applicant had employment, family and social ties that were of sufficient incentive for the visa applicant to return before the expiration of the visa.

    Other Relevant Matters

22. I have considered that the review applicant gave evidence that he and his family have returned regularly to Turkey, to visit his family, the last time being three years ago.  I have considered and accept the evidence that the review applicant has not previously sponsored any family member to come to Australia to visit him. I accept the review applicant has sponsored his younger brother, the visa applicant, to come to Australia so they can travel together, and go camping together with his son. I accept the review applicant wants to show his younger brother the house he has bought and the business he has set up. I accept the review applicant misses his family.

23. In his written statutory declaration dated 5 September 2017 the review applicant declared he was willing to provide a security or bond to the Department if it was deemed necessary. Both the review applicant and the visa applicant gave evidence that they understood what was meant by a security, and they understood what would happen to the security if the visa applicant did not comply with the conditions of the visa.  The tribunal is not making a finding that a security is required. The tribunal has noted that the delegate has not asked for a security, and it is not open to the tribunal to therefore recommend a security. However, in relation to assessment of the visa applicant’s genuine intention to comply with visa conditions, it is relevant to the tribunal that the review applicant has offered to provide a security, and that both the review applicant and the visa applicant understand the operation of a security.

24. In the Department’s decision record dated 6 October 2017, the delegate did not refer to any political or civil unrest in Turkey as the reasons the visa applicant did not genuinely intend to visit Australia temporarily.  Based on the information in the DFAT Country Information Report Turkey, 9 October 2018, the state of emergency declared after the attempted coup on 15 July 2016, is no longer in place since July 2018. There is no evidence before the tribunal that there are cultural or political or security or economic factors that would influence the visa applicant not to return to Turkey before the expiration of the visa.

    S.359AA Adverse Information

25. The review applicant stated he came to Australia in 1995 on a partner visa, married his current wife in 2006, and was granted Australian citizenship in 2007. I asked the review applicant whether he had ever applied for any other visa. The review applicant stated he had not.  I asked him if he was sure, and asked the question three more times.  The review applicant stated he did not apply for another visa.

26. I put the information to the review applicant pursuant to the s.359AA process, that I understood he had applied for a protection visa three times, which had been refused three times by the Department, and that decision was affirmed three times by the Refugee Review Tribunal. I explained the relevance of the review applicant’s answers in a hearing where I am asked to rely substantially on oral evidence to assess the genuine intention of the visa applicant, and the possible consequences for the decision on review. I adjourned the hearing after the review applicant stated he understood the particulars of the information, its relevance to the review, and the possible consequences for the decision on review. 

27. After the adjournment the representative requested the review applicant be assisted by the telephone interpreter. In answer to a question the review applicant stated that he conducted his business in English without an interpreter.  I considered rather than determining whether the review applicant did require the assistance of an interpreter or whether he was fluent in English, the most appropriate course for the tribunal to take was to grant the request because of the tribunal’s obligations of procedural fairness.  The balance of the hearing was conducted with the assistance of the telephone interpreter for the review applicant and the visa applicant.

28. I put the particulars of the information to the review applicant with the assistance of the interpreter. The review applicant stated he understood the particulars, he understood the relevance to the review, and understood the possible consequences to the review if the tribunal relied on the information. The review applicant stated all the documents he had provided with the application for the visa were true and correct, and he had not done anything wrong or illegal, either in the application, or in his time in Australia. The visa applicant stated when I had asked him about the visas applications, he thought I was asking him if he had applied for other marriage visas.

29. The review applicant did not state at this point in the hearing that he had never applied or been refused a protection visa by the Australian authorities. I am satisfied that the review applicant did apply three times to the Department for a protection visa, and was refused three times. I am satisfied that the review applicant applied three times to the Refugee Review Tribunal for review of the Department’s decision, and three times the Department’s decision was affirmed by the tribunal.

30. I do not accept the review applicant’s explanation that he thought I was asking whether he had previously applied for a marriage visa when I asked if he had applied for any other visa. He had provided his own migration and personal history in his evidence.  I had clearly asked him about whether he had applied for any other visas. There was a not a discussion about marriage visas, or any specific type of visas.  I asked him the question about whether he had applied for any other visa several times. He gave considered and unhurried answers.  I am satisfied he understood the precise nature of my questions.

31. In his submission near the conclusion of the hearing, the representative stated the review applicant misunderstood the question because of language problems.  He stated these were rectified by the use of the interpreter. He stated the review applicant had asked for the interpreter for himself, and he had requested the interpreter for both the review applicant and for the visa applicant in the hearing.

32. I intend to comment upon this in the strongest possible way.  At the very outset of this hearing the review applicant stated he was fine speaking English. He did not request to use the interpreter in any way until after the s.359AA information was put to him, when the representative stated the review applicant wished to use the interpreter. The review applicant had communicated appropriately in English, and demonstrated appropriate understanding of the language, in his answers and responses, even when he sought clarification of my questions. Further, I had invited the review applicant and the representative to advise me if there was any issue in relation to understanding or communication.

33. I find the review applicant did not know the tribunal was aware of his three refused applications for a protection visa, and deliberately chose not to disclose this information to the tribunal, considering it may affect the assessment of the evidence in this case. I do not accept he misunderstood my question to have been specifically related to marriage visas.

34. I have noted the review applicant did not state he had not understood my question because of language difficulty. I disagree with the representative’s submission that the review applicant required an interpreter, in order to understand the process.   I have concerns that the representative’s submissions that the review applicant required an interpreter after I put the information to the review applicant under the s.359AA process, were made with the intention of affecting the tribunal’s processes, and not for the stated purpose of assisting the review applicant to understand the tribunal proceedings.  It is not helpful for a representative to conduct himself in such a way to try to overcome the fact that the review applicant has provided evidence that is difficult to explain.

35. The tribunal has considered the above and all other relevant matters (cl.600.211(c)).  The tribunal has assessed the review applicant has provided an answer that was not truthful, in relation to his own visa applications made over twenty years ago.  However, I have assessed the evidence of the visa applicant and the balance of the review applicant’s evidence as reliable overall, and I am satisfied that the evidence before me is that the visa applicant genuinely intends to stay temporarily in Australia.

36. For the above reasons the tribunal is 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 met.

    DECISION

37. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Margie Bourke
    Member