Kaya (Migration)

[2020] AATA 207

Kaya (Migration) [2020] AATA 207 (27 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Durson Kaya

VISA APPLICANT:  Mr Cafer Kaya

CASE NUMBER:  1823290

HOME AFFAIRS REFERENCE(S):           BCC2018/2730551

MEMBER:Ian Garnham

DATE:27 January 2020

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 27 January 2020 at 1:16pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine intention to stay temporarily – granted visa previously but did not travel – family members in home country and Australia, house and farm in home country – previous compliant travel by other family members – review applicant’s capacity to support visa applicant’s travel and accommodation – decision under review remitted

LEGISLATION

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 27 July 2018 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 21 July 2018. 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 (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 they were not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the identified purpose.

5. The review applicant is the 46yo brother of the 47yo visa applicant and appeared before the Tribunal on 21 January 2020 to give evidence and present arguments. The Tribunal also received evidence from his partner, Serpil Polat, and the visa applicant by conference telephone.

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

7. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.  A submission dated 12 January 2019[1] (sic) and documentation supporting the application were provided to the tribunal.

   [1] At F: 62 (AAT)

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 application, the visa applicant sought the visa for the purpose of a family visit for up to 3 months.  At the hearing the visa applicant said that he still wishes to come to Australia and visit his relatives.  The visa applicant said he is only able to come during the Northern hemisphere winter when his farming duties are reduced because of the snow.

11. These are purposes for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    cl.600.211(a):

12. 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.

13. The visa applicant has never travelled internationally.

14. However, he previously applied for Tourist visa and a Sponsored Family Visitor subclass 679 visa in September 2011.  The Department rejected both applications.  The review applicant sought review of the Sponsored Family Visitor visa application.  In March 2013 the predecessor of this tribunal, the Migration Review Tribunal (MRT) remitted the application for reconsideration.[2]

    [2] MRT 1201975 – 27 March 2013

15. The review applicant said that the application was granted following the MRT review but he was unable to afford to pay for his brother’s travel at that time so he did not travel.  The tribunal accepts this evidence and acknowledges that the visa applicant ultimately has had a previous successful application based on similar circumstances to those presented for this review.

16. The tribunal also acknowledges that a further brother of the applicants came to Australia (sponsored by his sister who has lived in Australia for approximately 30 years) in April 2017 as a Tourist and left 6 months later on the day his visa ceased to have effect.  I acknowledge that this is compliant prior travel to Australia by a family member of the applicants.       

    cl.600.211(b):

17. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(2)):

    ·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.

18. The review applicant told the tribunal he has 9 siblings.  Seven live in Turkey; 5 sisters and 2 brothers including the visa applicant.  All except the visa applicant are in relationships and have children and they are living independently in Turkey.

19. It is recorded in the MRT Statement of Decisions and Reasons that the visa applicant returned to his parent’s home around 2011 to care for them and help them operate the family farm[3].  At the hearing the applicants advised that their parents are now deceased and the visa applicant now lives alone in the family home.  At the hearing the review applicant provided translated copies of the visa applicant’s title to the land and dwelling as well as a business registration for the bee keeping operation.[4]       

    [3] At para 16

    [4] At FF: 64-65 (AAT)

20. A further brother and sister of the visa applicant also live in Australia and the review applicant said it is anticipated that the visa applicant will spend time staying with all of them while visiting Australia.

21. Given the stage of life of the visa applicant I consider it unlikely that he would seek to work or enter into long-term study while in Australia.  He also disclosed to the tribunal that he has a friend in his village that he makes plans together with and while they do not live together they have a close long-term relationship. 

    cl.600.211(c):

22. The Tribunal has also considered all other relevant matters.

23. In particular, the tribunal has considered the consistent information that has been recorded in the previous MRT reasons.  The information with respect to the visa applicant’s ability to travel in the period when his farming duties are reduced and consistent with the documentary evidence regarding his commitment to management of his farming activities at the family farm that he has inherited.  The timing of this further application is also consistent with the review applicant’s evidence that his business (as a renderer) has now improved and he is in a better financial position to support the visa applicant’s travel and accommodation costs in Australia.  He also provided a statement of his business bank account for the period; 01/10/2019 – 31/12/2019.[5]          

    [5] At FF: 53-59 (AAT)

24. I have also noted that in the MRT reasons it is recorded that the departmental movement records demonstrate that the applicant’s parents had previously made compliant trips to Australia as visitors.[6]  As in the MRT reasons, the tribunal also considers the applicants to be reliable witnesses who have presented a strong case whereby they have committed to the visa applicant making a short term visit to Australia to spend time with his Australian relatives and their families.

    [6] At para 22

25. 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

26. 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.

    Ian Garnham
    Member