Kilinc (Migration)

[2019] AATA 4027

Kilinc (Migration) [2019] AATA 4027 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ozer Kilinc

VISA APPLICANT:  Mr Mesut Kilinc

CASE NUMBER:  1803369

HOME AFFAIRS REFERENCE(S):           BCC2017/4882133

MEMBER:Moira Brophy

DATE:18 July 2019

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 18 July 2019 at 3:24pm

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – genuine temporary stay – incentive to return to Turkey – 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 8 January 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 20 December 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 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 the delegate was concerned the purpose of the visit was not a genuine temporary stay.

5. The review applicant, Mr Ozer Kilinc  appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. His partner Mrs Ilkay Kilinc accompanied him as a support person. The Tribunal also received oral evidence from the visa applicant Mr Mesut Kilinc. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

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

   Background

7. The applicant is a 37 year old male citizen of Turkey. He is married and has two daughters born in 2005 and 2011. His father and three brothers reside in Turkey and he has one brother (the review applicant) in Australia.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).

11. At the time of hearing the visa applicant told the Tribunal that he had not previously travelled to Australia. The visa applicant said he has travelled to Cyprus and he worked there for one year. He has also visited Germany and France. He has complied with the terms of the visas he has been granted. He told the tribunal he had previously been refused a visa to England.

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.600.611(2),(3)and(4)):

    ·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. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit him and his wife. The review applicant said his father had visited him in 2011 but no other member of his family had visited him since he has been in Australia. While he has returned to Turkey to visit his family on a regular basis he had not been able to share with them the life he had built in Australia. The review applicant is currently not employed and has relocated to Melbourne to be with his new partner. He would have some flexibility in his schedule so he could show the applicant around. The Tribunal accepts it is the intention of the visa applicant to visit his brother.

14. The Tribunal turned its mind to the evidence of the applicant’s employment. He told the Tribunal he was a chef but was not in ongoing employment as his work was seasonal. He works in a city dependent on tourism. During the winter months there is no work for people such as him. The Tribunal considered the review applicant had been conducting his own business as a bricklayer and had built up a successful business in Sydney. He has now relocated to Melbourne and as yet has not established a business there. On his evidence he is not presently in a position to entice the applicant to work with him.

15. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

17. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that his brother had not been to visit him in Australia. He stated he wanted to spend time with him and for his wife to spend time with him. He stated it was difficult for him and his wife to go to Turkey regularly because of the costs involved. He no longer enjoyed the income he had previously. He said it would be a more cost effective option to bring his brother to Australia with the added benefit of being able to show him the life he had made here.

18. The review applicant gave evidence that the visa applicant wants to come to Australia for three months maximum. The visa applicant told the Tribunal that he would stay for two months at the longest. He feels a great sense of responsibility to his wife and daughters aged 14, 10 and 8. He also has a property in Turkey which is rented out. The applicant said for the twelve months he had worked in Cyprus he had gone back to Turkey every two months to visit his family. That was the longest period he thought he could be away from them.

19. The Tribunal asked the review applicant what incentives the visa applicant has to return to Turkey at the end of his permitted stay in Australia.

20. The review applicant responded that his incentives to return are his family. In addition to his wife and daughters he has his father, and three brothers who live in Turkey. While they live in a more rural part of Turkey he is in frequent contact with them and sees them often. There is only the review applicant in Australia. The balance of his family is in Turkey. When asked what would happen if he comes here, changes his mind and does not want to return to Turkey, he responded that he loves his family, and he feels a great sense of responsibility to them. He said that would draw him back.

21. The Tribunal has considered the evidence given by the review applicant. He has moved to a new city away from his children. He has missed spending time with his family especially his brother. The review applicant has worked very hard to make a new life in Australia since he came here in 2001 and he wants to show his brother his new country. The tribunal accepts it is financially and logistically very difficult for he and his wife to travel back to Turkey as regularly. The review applicant stated that the visa applicant is law abiding and that all the members of the review applicant's family are also law abiding as was evidenced by his father complying with his visa conditions when he visited Australia in 2011. The review applicant said it was important his family members were able to come and visit him and he understood that could only happen if they complied with the conditions of any visa they were granted.

22. The Tribunal has considered other relevant matters including the current situation in Turkey. The review applicant stated that if the Department requires a security bond he was prepared to lodge a bond of around $10,000. When the tribunal raised with him that this amount was in excess of his stated savings he said he was prepared to borrow the money from friends. He stated that he is confident that his brother will return to Turkey at the end of his visit.

    Findings

23. Having considered all the evidence, the Tribunal is of the view that the visa applicant and the review applicant are credible witnesses. The Tribunal accepts that the visa applicant has a strong commitment to his wife and daughters and to his father and siblings in Turkey and that this would provide a strong incentive for him to return to Turkey. The Tribunal accepts that he has the financial resources to pay for his trip to Australia. The Tribunal accepts that he does not intend to work, study or undertake any training in Australia. The Tribunal places considerable weight on the fact that he has only applied to visit in the context of his not having been to visit his brother in Australia.  

24. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that his family members are able to visit him in Australia and that he will ensure that the visa applicant complies with the conditions of his visa so as not to jeopardize other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of his visa.

25. The Tribunal accepts that the visa applicant's incentives to return to Turkey outweigh his incentives to remain in Australia after the end of his permitted stay. The Tribunal accepts that he intends complying with the conditions of his visa.

26. 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

27. 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.

    Moira Brophy
    Member