Uzelakcil (Migration)

[2017] AATA 168

Uzelakcil (Migration) [2017] AATA 168 (31 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aydin Uzelakcil

VISA APPLICANT:  Miss Sureyya Uzelakcil

CASE NUMBER:  1613023

DIBP REFERENCE(S):  BCC2016/2077679

MEMBER:Lisa Lo Piccolo

DATE:31 January 2017

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 2017 at 6:51pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Compliance with previous visa – Powerful incentive to return – Home ownership in Turkey – Inherited pension – Offer of bond – Security risk from militant groups

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.211, 600.231, 600.611

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 July 2016 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 14 June 2016. 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.

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 that the visa applicant genuinely intends to visit Australia temporarily.  A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

5. The review applicant appeared before the Tribunal on 9 January 2017 to give evidence and present arguments. The Tribunal also heard oral evidence from the review applicant’s wife, Ashli Uzelakcil.  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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

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

3. In her visa application, the visa applicant stated that she:

   (a)was born in Turkey on 7 August 1963 and still lives there;

   (b)is not married and has no children;

   (c)holds a current Turkish passport; and

   (d)

   proposed to stay in Australia for up to six months from 3 July 2016 to

   
   

   3 April 2017.

Evidence given to the Tribunal at the hearing 

1. At the hearing, the Tribunal explained to the review applicant the requirements of

   
   

   cl. 600.211 and the matters relevant to its assessment.  The Tribunal told the review applicant that the primary issue for it to consider in determining the review application was whether the visa applicant genuinely intended to visit Australia temporarily.

2. In summary, the review applicant said the following in evidence at the hearing:

   (a)He is married with two children;

   (b)The visa applicant would stay with him if she visits.  He and his wife are prepared to provide for all her travel requirements: flights, accommodation, food, and any associated travel expenses; 

   (c)He said that all his siblings live in Turkey; 

   (d)Although the application indicates a nine months’ stay, the visa applicant would be happy to stay here for less.  He said that she just wants his sister to spend time with him, his wife and his children; 

   (e)The review applicant said that the visa applicant has travelled to Australia previously in July 2011.  She stayed in Australia for approximately 10 months.  He said that he and his wife were required to pay a bond, which was subsequently returned to them in or about June 2012.  He and his wife said that she would be prepared to pay another bond.  Both witnesses told the Tribunal that the review applicant will return to Turkey because her life, her home and the balance of her family are in that country.  The review applicant said that she does not want to live here and has a happy comfortable life there managing her lands and living off her father’s service pension. 

3. During the hearing, the Tribunal raised with the review applicant the information about Turkey published by the Department of Foreign Affairs and Trade. . The information indicated that the security situation in Turkey has deteriorated in recent years as a result of the difficulties in Syria and Iraq.  The review applicant said that there are no issues where his sister lives.  Both he and his wife stated that they are aware of the security issues and this does concern them when considering their own travel there with their children, but his sister and other family members are not affected by the problems. 

Assessment of evidence and findings

1. 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)).

2. 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(3)):

   ·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; and

   ·8531 – must not remain in Australia after end of permitted stay.

3. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

4. The Departmental records before the Tribunal indicate that the visa applicant visited Australia between 2011 and 2012.  There is no evidence before the Tribunal to indicate non-compliance with conditions of the previously held visa.  The Tribunal is satisfied that she did comply with the conditions of that visa.

5. The Tribunal has considered all of the evidence the visa applicant submitted to the Department as well as the oral evidence of the review applicant and his wife at the hearing. The Tribunal has examined afresh the particular circumstances of the visa applicant. The Tribunal has also considered the country information on Turkey discussed with the review applicant at the hearing.

6. The visa applicant is a middle aged woman with all of her siblings (except the review applicant) living in Turkey.  She has lived in Turkey all of her life and aside from her trip to Australia almost 5 years ago, she has not been outside Turkey.  She also has a house and land, and is financially supported by a modest pension she inherited from her deceased father.  The Tribunal finds that those matters constitute a powerful incentive for the visa applicant to return to Lebanon. 

7. The Tribunal accepts that the visa applicant’s family ties in Australia provide some incentive for her to remain.  The visa applicant has her brother and his children and two cousins in Australia.  The Tribunal finds these family ties constitute an incentive for the visa applicant to remain in Australia. 

8. However, the Tribunal places significant weight on the visa applicant’s previous visit to Australia in 2012 and the fact that she complied with her conditions including departing Australia within the validity of her visa.  Save that her parents have now passed away, her circumstances have remained the same, and given her age, her dependence on her father’s pension as well as her connection to her home and large family in Turkey, the incentive to return appears greater. 

9. The Tribunal has taken into account the country information on Turkey raised with the review applicant at the hearing provides that Turkey is subject to some militant activity in areas and the country generally presents a high security risk to potential visitors. 

10. After considering all the evidence before it including the visa applicant’s personal circumstances and the country information on Turkey, the Tribunal does not share the delegate’s concerns.  On balance, the Tribunal considers that the strong family incentive for the visa applicant to return to Turkey outweighs the family incentive for her to remain in Australia.  The Tribunal is therefore satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal finds that the requirements of cl.600.211 have been met.

DECISION

1. 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.

Lisa Lo Piccolo

Member