Gozuacik (Migration)

[2021] AATA 3128

Gozuacik (Migration) [2021] AATA 3128 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sonya Gozuacik

VISA APPLICANT:  Mr Zulfukar Seyhun

CASE NUMBER:  1936150

DIBP REFERENCE(S):  BCC2019/5525609

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 June 2021 at 11:35 am (WA time)

DATE OF WRITTEN RECORD:                12 July 2021

PLACE OF DECISION:  Perth

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 12 July 2021 at 12:46pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – sponsored family stream – visiting family members– genuine intention to stay temporarily – Turkish passport holder who has been living in Germany – German permanent resident for 23 years – two sons in Germany – family and work commitment in Germany –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  

1. MEMBER:  This is the oral decision.  On 3 November 2019 your brother applied for a visitor visa to come to Australia.  I am satisfied he is related to you as your biological brother.  The decision-maker from immigration, who is called a delegate, refused the visa application on 10 December 2019.  You have applied to this tribunal for that decision to be reviewed. 

1. The application for the visitor visa was refused for the following reasons.  The delegate was aware of your brother’s, and your, family links to Australia and the circumstances regarding the immigration history of your family.  The delegate noted that your brother had some family ties to Germany but was not satisfied there are sufficient family links outside of Australia to act as an incentive for him to depart Australia at the end of the intended stay.  It seemed more likely that he would seek to change his status once in Australia.

1. The delegate noted his passport shows he is a citizen of Turkey.  It was accepted that he does reside in Germany but had no provided any translated evidence that he is permitted to remain there.  He had not provided any evidence of funds in support of the application and may have difficulty funding a one-month visit to Australia.  So, they were the reasons.

1. In making this decision I have considered everything that your brother advanced to the Department, everything that you have provided to this tribunal.  I’ve considered your evidence today.  I made a decision that I do not need to contact your brother in Germany.  I have considered your arguments as to why the visa should be granted. 

1. I am considering this application by putting myself into the shoes of the original decision-maker from the beginning.  I have followed the same laws and the same regulations.  I am inviting you to participate in the hearing because I couldn’t make a decision on what I had before me, so I needed to hear from you and, if necessary, any witnesses.  I have today given you opportunity to give evidence and present arguments relating to the issues.

1. Whilst I had arranged an interpreter in German and English to be present, there was no need to use him because we did not or I did not contact your brother.

1. The law is found in part 600 of schedule 2 to the Migration Regulations. In particular, clause 600.211 is important because that tells me that I need to be satisfied, being the tribunal, that your brother generally intends to stay only temporarily in Australia. He must genuinely intend to stay temporarily for the purpose for which a visitor visa can be granted. In this particular stream, which is the sponsored family stream, the purpose is to visit specific family. I am satisfied that you are specified family, being his biological sister. Or to visit for non-business or non-medical purposes. I am satisfied that he has no business and no medical purposes here in Australia.

1. I must be satisfied and subjectively consider the intended purpose of the visit is a purpose for which a visa can be granted in the sponsored family stream.  I am satisfied, based upon your evidence, that the intended purpose is to spend time with you, your husband, your children.  And he also has the two brothers that you share together, living in Perth.

1. I must also consider if your brother has been in Australia before and, if so, whether he substantially complied with the conditions of the most previous substantive visa or bridging visa.  He has not been here.  It follows I cannot be satisfied as to substantial compliance.  That is one of the issues that I must give consideration to.  It is not determinative in itself.

1. I need to consider if your brother intends to comply with conditions if this visa were granted.  The conditions would be that he not work, that he will not study for more than three months and obviously that he go home before the visa expires.  Home being Germany.  I think it’s very, very unlikely he would study at all.  So, the issues are whether he would work and whether he would go home.

1. That’s the background on which I have to give a decision.  As I said, I have the departmental file.  I looked through all of the documents provided in support and it’s fair to say some of the documents were in German and me not speaking German, they were difficult to read.  There was a letter that was provided to the Department from yourself, that was dated 31 October 2019.  You outlined much of the same things that you gave evidence on today.  I reviewed the sponsorship application by yourself, his visa application.  I take those into consideration and there is a translated copy of the document called, “Extract of Family Register,” of yourself.  I give that some consideration. 

1. There was a document which appears to me to be an official German document which may well be an authority to remain in Germany.  A copy of the face sheet of the Turkish passport for your brother, that gave an expiry date of October 2020.  I understand that there is now a new passport and here it is – sorry, a copy of his identity card showing that he was born on 14 May ’73.  His Republic of Turkey identity card expires on 29 September 2029.  A copy of his passport showing travel into Turkey and return.  Some Bank West transaction records relating to yourself.  The same statement of yourself.  A copy of your passport.  Of course, the decision record.  So, they were the document on which the Department made its decision.

1. In relation to documents provided to the tribunal there was of course the decision record.  There is a document, a translated document, which is titled, “Title of Resident’s Permit”.  It applies to your brother and has a photograph.  It is unlimited.  It is a permanent resident’s permit for him and the city he has nominated is the county of Hesse (indistinct).  I am satisfied that that is the translated document of the German official document that I mentioned on the Department file. 

1. There is a general certificate of employment in relation to your brother which indicates that the start of his employment was 15 July 2005.  It confirms his date of birth.  It confirms that his employer is Robert Bosch Power Tools.  That document is dated 29 October 2019.

1. There is also a further document which is also in German which appears to me to be pay records in relation to his employment with Bosch, consistent with what I would expect to be account records or pay records.  I note that the company Robert Bosch Power Tools GMBH is endorsed on the top of the document.  You also provided more updated transaction account statements for yourself up to 14 November 2019.  Actually, the account is in the name of a Mr O - - -

MS GOZUACIK:  My husband, Ozgisch Gozuacik.

MEMBER:  I do not have any concerns in relation to your account records.  What they do tell me is - - -

MS GOZUACIK:  Is my name not on there?

MEMBER:  Sorry, please do not interrupt.

1. They tell me that from as at 15 August 2019 your balance or his balance was $18,364.85 and the balance as at 14 November, being the closing balance, was $42,264.13.  I note that your Australian passport expires on 25 October 2028. 

1. You did provide a statement which I think I would summarise.  Your statement, you invited and sponsored your brother to visit over the Christmas period which I assume was 2019, for a period of one month whilst his workplace was closed for a couple of weeks.  You state that he would take two weeks’ annual leave.  It is clear that you wanted him to meet your little baby girl and have a break with you. 

1. You confirm that your brother had separated from his wife more than two years previously.  He is still in contact with her as he visits their two children being two young boys.  Their names are Hakan and Verkay.  You stated in the statement that they lived at their mother’s house every weekend and he takes them out to spend time together.  You confirm that he is still paying, as at the time of the statement, towards child support.  You claim that he would not leave his two children to come to Australia to stay permanently.  You also confirm that he has other family and close friends in Germany and would not choose to leave a well-settled life in Germany to come to a non-German or non-Turkish-speaking country. 

1. You did outline in that statement the immigration history.  You came to Australia on a spouse visa after marrying your husband.  You confirmed you have two brothers living here in Australia, particularly in Perth.  Their names are Murat and Hidir.  Both had been granted protection visas by the Australian government.  I note from your evidence today that one had been granted a protection visa at first instance.  The other had been granted a protection visa following appeal or review to this tribunal. 

1. You claim that your family are not criminals and would not present any harm to Australia.  You also outlined that your brother is a Turkish passport holder who has been living in Germany, as at 2019, for 20 years as a permanent resident.  You state you agree to pay for all of your brother’s travel and accommodation costs if he wishes to come to Australia.  You confirm that he is not a rich person, but he does have a regular job with Bosch.

1. Of course, all that, being December 2019, was before the pandemic.  You were not to know what would happen.

1. One of his sons has provided a letter to the tribunal.  It is dated 11 May 2021.  That letter reads as follows.  It is from Hakan:

   I am writing this statement in support of my father’s family sponsored visa application.  My dad was planning to go to Perth, Australia, where my aunty resides.

   Being you.

   I can confirm that my dad does have a very good family here, including myself, my younger brother Verkay, and my three uncles and many of his relatives.  He is also still in contact with my mother despite them getting separated a couple of years ago.

   Hakan states:

   He has been working for the well-known company, Bosch, for over 15 years.  He is financially stable.  He has a regular income through his work.

2. He confirmed that his father pays child support to his mother and even so that the boys are now over the age of 18 years.  That statement is in support of the application.

1. The day before the hearing, being 15 June 2021, on reviewing the file I had identified for myself that I would be assisted by receiving some photographs of your brother with the two boys to confirm for my own curiosity.  You had very little time to organise that.  I acknowledge your effort.  What those photos show is there is a gentleman on most of the photos with two young men.  Some of the photos suggest they were boys. 

1. The photo of the gentleman matches the photo in the records I have already mentioned, the passport records.  I am satisfied that this person is your brother.  I am also satisfied that the two young men are his children.  There is a lady in those photographs, and you gave evidence to me today that that lady is the mother of the two boys, his ex-wife.  I am satisfied that is her.  Some of the photos show yourself and those photos must have been taken during your visit back in 2015. 

2. I am satisfied that your brother does have two children, both male, which are now young men.  That is something I must give a lot of thought to, a lot of consideration.  In particular, there is a photo of yourself, clearly yourself, a photo of your brother, a photo of a lady, one of the two boys I’ve mentioned, and also a gentleman you say is your husband and I accept that he is your husband.

1. We spoke briefly today.  You confirmed your brother has never been here before.  You told me that you are 34 now, you were born on 1 January 1987 in Turkey.  Your family comes from a village close to the city of Nazmir (indistinct).  Your father was born in 1946 and your mother in 1958.  They are still together.  It seems that your father does some work of an agricultural nature on some land.

1. You told me that you have 15 siblings and you are number 12.  The eldest is in their 50s and the youngest was born in 1991.  There are four siblings within Germany, being four brothers of yours.  There are eight living in Turkey and of course there are two brothers living here in Perth.  You saw these brothers in 2015 when you and your husband visited Germany.  All appear to have permanent residency in Germany, including your brother the visa applicant.  They are in contact with each other in Germany although I note some appear to live in different parts of Germany.

1. Whilst you are not entirely sure how long the brothers have been living in Germany for it appears that the three brothers who applied for protection, that occurred many, many years ago.  It was hard to know when they had applied.  I explored the reasons for them seeking protection in Germany generally.  You said it was about the treatment they had received in Turkey because of their Kurdish ethnicity, if I put it that way.

1. You told me that your brother married at least 23 years ago.  He separated from his wife three or four years ago, but they are still in an amicable relationship and of course they are still responsible jointly for the raising of the two boys.  They are officially divorced.  To your knowledge your brother is not in a relationship at the moment or not that you are aware of and it appears that it was your brother’s decision to separate from his wife. 

1. Your brother’s wife or ex-wife had been born in Turkey and she went to live in Germany when she was a young girl.  That is the connection initially at least to Germany but your brother had met her in Turkey.  It seems that she lives close by to your brother which enables him to have contact with the two boys.  They are aged 22 and 18.  They are now adults.  The eldest is doing some training but you weren’t entirely sure as to the nature of that training, but both live with their mother.

1. You told me that one of your brothers had obtained a protection visa indirectly through the AAT.  What that means is that he had applied to the Department, they had refused it and then had sought an appeal.  The other brother had been granted a protection visa at first instance through the Department.  It appears that they had similar claims in relation to their Kurdish identity.  You came to Australia in 2011 upon a spouse visa, I accept that.

1. You met your husband in 2010 and you had also met in Turkey.  It seems that initially at least you had communication online with each other.  Your husband was born in Turkey.  Your husband’s work at the moment is that he operates a cleaning business.  It appears that the amount of work has reduced somewhat.  Your work, you work for a government department, I will call it the Department of Biodiversity and you are involved in the financial services area.  To your credit in the previous week before the hearing you graduated from Curtin University with a Bachelor of Commerce degree.  You have one daughter with your husband, and she is now two years old. 

1. In relation to your brother’s international travel, he goes back to Turkey every summer.  You say that your dad is now old.  There are no particular health problems, but I gain from your evidence that he suffers from the usual health issues of a man of that age.  Your mother has not worked.  I say that loosely because having 15 children, she had her work cut out for her, there is no doubt about that.

1. One of those two brothers is an Australian citizen and the other one is in the process of applying for citizenship.  One of the brothers lives with you and your husband; the other is married.  You told me about your two mortgages.  One is with Bank West and the other is with the National Bank.  I accept that you have a significant financial outlay at the moment.  No other significant members of your family have been to Australia. 

1. You tell me that your brother does not own his own residence.  He rents a studio apartment and has done so for the period that he separated.  He lives in Stuttgart.  That is a city in the southern part of Western Germany.  He is 47.  It appears that he has done no significant studies in Turkey.  I am not aware of any particular studies in Germany.  You tell me that he has committed his life for all of that period in working for the company Bosch.  I note generally that Bosch is a company that manufactures equipment including power tools and so forth but I am sure the business is much more extensive than that.

1. He has good friends and remains good friends with his ex-brother-in-law in Germany.  Your brother has no medical issues.  He owns a car.  He does not own any property or assets.  You told me that there is no indication that the German government has ever or is putting any pressure on your brother to depart that country.  I do accept that.

1. I spent some time discussing with you as to whether your brother would have any reasons to apply for the protection of Australia.  I raised that because, as I put it, there is a pattern within your family to seek protection of other countries.  Obviously your two brothers here, I have already spoken about that, but also the three brothers that applied for protection in Germany.  That is something that I have had to give some careful consideration to.  You tell me one of the two boys is German and the other boy, as I understand it, is a permanent citizen of Germany. 

1. I asked what you will do if your brother comes to Australia.  You want to take him up north possibly to Kalbarri, to Geraldton, and possibly down south to Albany.  You told me that he is really only seeking three weeks’ maximum visit to Australia.  He will stay with you and your husband.

1. Whilst the COVID situation in Germany has not been good at times you tell me he has received his first vaccination injection.  You tell me that he has travelled within Europe, there are no travel issues that I am aware of.  He has travelled to France, obviously Turkey and so forth.  You were not sure how much he has in his savings, but you would be assisting him with his flight costs and also his upkeep.

1. It is pretty clear to me that your brother is not a person or not a man with any considerable financial backing at the moment.  I asked you why this visa should be granted, and you pointed out that your brother has a permanent job of many years with Bosch.  He is settled.  He is in his late 40s.  The question arises, well, why would he be seeking to relocate to another country at his age.  You pointed out that he has a stable life at the moment, but I do note that his marriage broke down a few years ago.

1. You wanted to point out to me that he is different to your brothers.  In particular, your two brothers in Australia who applied for the protection of Australia.  You made the point that you cannot change the views of the Department, the delegate, regarding the seeking of protection.  I asked you whether you understood your duties, your responsibilities as a sponsor.  You acknowledged your responsibilities to make sure that he is maintained, his upkeep which you would buy his ticket, that he will definitely go when he has to. That is everything that I have before me.

1. I am satisfied that the purpose is a purpose for which this type of visa can be granted viewed subjectively.  I think it very, very unlikely that your brother would seek to stay in Australia for any period at all.  He has considerable experience working with Bosch in his role, but I do think it unlikely that he would seek leave and gain employment into that same field here in Australia. 

1. Really that only leaves one issue and that is whether your brother genuinely intends to stay temporarily in Australia.  Whilst I can understand why the Department delegate would have concerns about the immigration history of your family that has to be viewed very carefully because it would not be fair to, by imputation, cast doubt on your brother simply because of the fact of his siblings applying for protection.

1. I think the difference here is that your siblings applied for protection because of conditions or concerns in your home country of Turkey, particularly their Kurdish ethnicity.  The difference also is your brother has been living in Germany for a period of I think it is probably 22 or 23 years now, permanently.  The German government have seen fit to grant him permanent residence.  He has one German citizen child; another is a permanent resident.

1. The photos you have provided indicate that, well, at first blush that he is close or has a good relationship with his two sons and seems to have a good relationship with his ex-wife as far as I am aware.  I think it is fair to distinguish between your brother’s circumstances and the circumstances of your other siblings in applying for protection.  The reasons for applying for protection from people or the circumstances in Germany, there is nothing before me to indicate that he would have reasons to fear for his safety in Germany.

1. Those two boys, in my view, would present as significant incentives for him to want to return so that he can experience their development as men.  Whilst having you and your two brothers here is incentive, I think, for him to remain here, I do not weigh that as being over and above his two sons being in Germany as incentives for him to go home. 

1. I have no credibility or character concerns in relation to you or your brother.  I accept he has no reasons to apply for protection from circumstances in Germany.  There is no issue as to compliance with any previous visas. 

1. When I weigh all of that up individually and cumulatively, I am well satisfied that your brother does genuinely intend to stay temporarily in Australia should he or when he comes here.   That is the decision.  I have agreed with your arguments. 

   END OF ORAL DECISION  

   Michael Judd
   Member