DURMUS (Migration)

[2018] AATA 2690

DURMUS (Migration) [2018] AATA 2690 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs SEMIHA DURMUS

VISA APPLICANT:  Mrs AYSEL AKSU

CASE NUMBER:  1733258

DIBP REFERENCE(S):  BCC2017/4213877

MEMBER:Melissa McAdam

DATE:10 July 2018

PLACE OF DECISION:  Sydney

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 10 July 2018 at 1:34pm

CATCHWORDS

Migration – Visitor (Class FA) – Subclass 600 (Visitor) – Sponsored Family stream – Genuine temporary entrant criteria – First trip to Australia – Visit and support daughter – Adequate means of financial support – Close family members in Turkey – No evidence of political instability in applicant’s home area – Decision made on review – Decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cls 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 11 December 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 application was constituted to this Tribunal Member, on 3 July 2018.

3. The visa applicant applied for the visa on 10 November 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 Sponsored Family stream.

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 visa applicant provided the following information in her visa application:

   a.The visa applicant is a 53 year old married Turkish woman from Yalova in  Merkez Yalova province.

   b.She wishes to visit Australia for up to twelve months to help her daughter, the review applicant, who was expecting a baby on 15 March 2018.

   c.She has not previously been to Australia.

   d.Her husband, and three adult children will remain in Turkey while she visits Australia.

   e.Her daughter, the review applicant, and daughter’s husband, are Australian Permanent Residents living in Sydney. Her daughter and son-in-law will fully support her visit to Australia.

   f.She has household duties in Turkey.

   g.She attached copies of the following documents with her application:

   i.A Property Title for a house in Fevzi Cakmak Mahallesi, in her husband’s name

   ii.Her husband’s bank account statement showing monthly deposits of approximately 1,400 Turkish Lira between the months of January 2017 and October 2017.

   iii.A payslip for her husband from Narli Hamidiye Ship.

   iv.The review applicant’s payslip from Amity College, Australia.

   v.The review applicant’s husband’s payslips from Amity College, Australia.

   vi.Her Turkish passport.

   vii.The review applicant’s Turkish passport

   viii.The review applicant’s husband’s Turkish passport, showing he was born in Germany.

   ix.A letter, dated 9 November 2017, from the review applicant stating that she and her husband are well settled in Australia. She works as a teacher at Amity College Australia. She is five months pregnant and expecting a child on 15 March 2018. The child will be her first and she would like her mother to be with her at the time. She previously had miscarriages and has had difficulties in her current pregnancy.  She believes her mother’s presence will be very supportive, and it is recommended by her obstetrician and gynaecologist. Her husband works full time so will be unable to provide the support she needs.  He will also be traveling to Spain with college students in April 2018 for football competitions.  Her mother will be a genuine temporary visitor to Australia.  Her mother has strong family ties in Turkey, with her husband, three other children, six siblings, and her own mother living there.  The visa applicant’s husband has a retirement salary of about 1,500 Turkish Lira per month.  He also works as a shipman earning about 2,500 Turkish Lira a month. They own the house they live in.  They have a good history of overseas travel. The visa applicant lived in Germany from about 1979 till about 1982.  Her husband has travelled to many countries including ones in Europe and the USA, in the course of his employment. They both obeyed all their visa conditions during their travels.

   x.A letter, dated 9 November 2017, from the review applicant’s husband, stating he will support the visa applicant financially and provide her with food and accommodation during her stay in Australia.  He works as a football club manager at Amity College Australia. He has approximately $46,000 in savings in his bank account.

   xi.The Australian Subclass 186 Visa Grant notice to the review applicant.

   xii.The Australian Subclass 186 Visa Grant notice to the review applicant’s husband.

   xiii.The visa applicant’s Turkish National ID Card.

   xiv.The visa applicant’s Marriage Certificate.

   xv.The review applicant’s Marriage Certificate.

   xvi.A letter, dated 18 October 2017, from Dr Wafa Samen, Obstetrician and Gynaecologist, stating that the review applicant is under her care. She writes that the review applicant has a complex obstetric history and had previous miscarriages.  It will be extremely beneficial for her mother and mother-in-law to be present to assist the review applicant.

6. The review applicant provided the following information in the visa application:

   a.The review applicant is the daughter of the visa applicant.

   b.She has been employed as a primary school teacher by Amity College for seven years.

   c.She attached copies of the following documents:

   i.Civil Registry Household Registration showing she is the daughter of the visa applicant.

   ii.A letter from the Commonwealth Bank stating that there is a closing balance of $46,176.06 in the review applicant’s husband’s bank account as at 16 October 2017.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he was not satisfied the visa applicant had sufficient ties to Turkey to induce her to leave Australia at the end of her proposed visit.  The delegate took into account “the current situation in Turkey, a country with substantial economic, security and political issues”.

8. The Tribunal considers that the visa applicant and review applicant have provided sufficient written information for it to be able to make a decision without the need for a Hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting and supporting her daughter in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)).  The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.

12. 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.

13. The Tribunal accepts that the visa applicant will be fully accommodated and supported by the review applicant and her husband while in Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

14. There is no evidence or indication the visa applicant has any interest in or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

15. Condition 8503 refers to entitlement and is not a condition that involves compliance.

16. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

17. The Tribunal accepts that the visa applicant is a married woman from Yalova in Turkey.  The Tribunal accepts the visa applicant’s husband, three other children, mother, and six siblings also reside in Turkey.  The Tribunal considers that the presence of these close family members represent significant incentive for the visa applicant to return to Turkey after a stay in Australia.

18. The Tribunal accepts that the visa applicant’s husband has a regular and stable income allowing him to comfortably provide for himself and the visa applicant in Turkey.

19. Available Departmental records indicate that the review applicant first came to Australia in August 2010 on a Student visa. The information shows that she has travelled to and from Australia twice and held a number of different visas, since her initial arrival. There is no record of any breach of her visa conditions over this eight year period. The Tribunal gives substantial weight to the good migration history of the review applicant in Australia.

20. The Tribunal notes the review applicant has other family members in Turkey she may wish to visit Australia in the future.  The Tribunal considers this further motivation for her to ensure the visa applicant does not breach any of her visa conditions and that she departs Australia before the expiry of her Visitor visa. 

21. The Tribunal acknowledges the delegate’s concerns about the country situation in Turkey.  However the Tribunal has not located any information of disturbing incidents or threats in the visa applicant’s home area. There is also no indication of any political events that would adversely impact individuals with the visa applicant’s profile.

22. In sum, the information before the Tribunal supports the applicants’ claims that the visa applicant intends to stay in Australia temporarily as a visitor. On the basis of this information  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

23. 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.

    Melissa McAdam
    Member