Uzun Isik (Migration)

[2018] AATA 873

Uzun Isik (Migration) [2018] AATA 873 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nihal Uzun Isik

VISA APPLICANTS:  Mrs Zuhal Kemec
Miss Derinsu KEMEC
Miss Irmak SARIKAYA
Mr Can KEMEC

CASE NUMBER:  1730597

DIBP REFERENCE(S):  BCC2017/4134016

MEMBER:Tania Flood

DATE:28 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application of the first named applicant 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.

The Tribunal does not have jurisdiction in relation to the second, third and fourth named applicants.

Statement made on 28 March 2018 at 1:04pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Tourist stream – Subclass 600 (Visitor) – First named applicant wishes to visit family – Close relationship with sister –Nephew to undergo a surgery  – Capable of funding the proposed travel – Family ties in Turkey far outweigh her family ties in Australia – No breach of previous visa conditions – Genuinely intends to stay temporarily in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 Schedule 2 cls 600.211, 600.221, 600.222, 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 13 November 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 31 October 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas were refused on the basis that the visa applicants did not meet cl.600.211 because the Delegate was not satisfied that they genuinely intend to visit Australia temporarily.  

5. The review applicant appeared before the Tribunal on 27 March 2018 to give evidence and present arguments. 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 review applicant is a single mother with three children.  Her youngest son has a serious heart condition and has required seven operations to date.  The review applicant is suffering from depression and anxiety and would like her sister to visit her to provide her with some support and care.   The review applicant’s mother is also resident in Australia.

8. The visa applicant is the review applicant’s sister.  She has requested a visa for one month to visit her sister and her mother.  She is married with two children.

   TRIBUNAL HEARING

9. The review applicant appeared before the Tribunal on 27 March 2018 and provided the following evidence:

10. She married an Australian citizen and was subsequently granted permanent residence and Australian citizenship.  In about 2010 she separated from her husband and now lives in housing commission accommodation with her three children who are aged 13, 12 and 7.  Her mother, who holds a Carers visa, also resides with her.  She does not work and is in receipt of Centrelink benefits.

11. The visa applicant has previously visited Australia.  During that visit she married an Australian citizen but returned to Turkey when her Tourist visa ceased.  Her husband from that marriage returned to Turkey also but the marriage failed.   After about one and a half years she divorced.  She remarried in about 2006 and has an eleven month old child with that husband.  She also has an eleven year old daughter from her first marriage in Turkey.

12. The review and visa applicants have an elder brother who lives in Ankara as well as an uncle and nephews and cousins. 

13. The visa applicant is no longer working following the birth of her youngest child.  Her husband is self-employed.  He operates a taxi and also does interior design work. 

14. The visa applicant lives with her husband and her children in Ankara.  They own the property they live in.  The visa applicant and her husband each own an apartment which they rent.

15. The review applicant would like her sister to visit her in Australia for one month to provide her with emotional support.  She and her sister enjoy a close relationship and given the difficulties she is enduring due to her son’s ill-health she would value her support especially as her child has yet another operation scheduled.

16. The visa applicant is able to cover the cost of her own travel to Australia and she will reside with the review applicant for the duration of the visit.

17. The review and visa applicants last saw each other in Turkey six months ago when the review applicant travelled there with her children.  On that occasion her sister paid for their travel and expenses.

18. The review applicant testified that while she believes in God she and her family are not devout and do not follow any religious creed.  She said that the same situation applies to her sister and brother-in-law.

19. The review applicant testified that her sister and brother-in-law have no political involvement in Turkey and have not been affected by the insecurity and political unrest in the country. 

20. The review applicant testified that her sister and brother-in-law have no marital problems.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. Only the first named applicant has standing in the review because the original Visitor visa applications were lodged in the Tourist steam. Sub-section 7(b) of the Migration Act states that ‘a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen’. The first named applicant is the review applicant’s sister while the second, third and fourth named applicants are the review applicant’s brother-in-law and nieces. Therefore, only the first named applicant can be considered in this review. This was discussed with the review applicant at hearing and she indicated she understood this.

22. 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.

23. In the present case, the visa applicants seek the visas for the purposes of visiting family.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

24. 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)).

25. The review applicant first entered Australia on 22 December 2003 as the holder of a Partner Provisional visa.  On 18 March 2006 she was granted a Partner visa.  On 26 February 2014 she was granted a Five Year Resident Return visa and she has since become an Australian citizen.

26. The review applicant’s mother has entered and departed Australia on Visitor visas numerous times since 2006.  She remained lawful at all times and on 2 December 2015 she was granted a Carer visa.  On 26 February 2014 she was granted a Five Year Resident Return visa.

27. The visa applicant was granted a Visitor visa on 30 July 2009 and entered Australia on 14 December 2009.  She departed Australia on 12 March 2010 before her visa ceased.

28. 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)):

    ·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.

29. In support of their application the applicants have provided the Tribunal with copies of deeds to their rental properties and copies of rental contracts in respect of these properties.  They have also produced copies of bank statements which indicate a modest bank balance.  While the Tribunal does not consider the visa applicants are in a strong financial position in Turkey it nevertheless accepts they are capable of funding the proposed travel to Australia.  As the proposed visit is only for one month and as the visa applicant will reside with family for the duration of this visit the Tribunal is satisfied she will have no need to work in Australia if she is granted the visa.  Similarly, there is nothing before the Tribunal to indicate she will engage in study or training in Australia if granted the visa.  On the available evidence, the Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 if she is granted the visa.

30. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia.

31. The first named applicant had intended to travel to Australia with her husband and children, however, as noted above, the Tribunal only has jurisdiction to consider the review application of the first named applicant.  There is nothing before the Tribunal to indicate that the visa applicant’s husband and two children are in receipt of a visa which would allow them entry to Australia at the time of this decision or that they will secure a visa in the foreseeable future.  Therefore the Tribunal considers the presence of these remaining family members, which includes a very young child, during her visit, to be a strong incentive for her to return home at the end of the visit.

32. On the available evidence the visa applicant previously visited Australia on a Visitor visa and married in Australia.  Despite that it was open to her to apply for a Partner visa she returned to Turkey.  The Tribunal has placed much weight on the fact the visa applicant departed Australia on that occasion and in those circumstances, before her visa ceased.  Further, the visa applicant’s circumstances have changed since then.  She has divorced and remarried a Turkish citizen and has recently given birth to a child of that union.  As noted, the Tribunal is satisfied she will return to Turkey after visiting her sister as her husband, on whom she is currently financially dependent and two young children will be remaining in Turkey while she is in Australia.   The Tribunal considers these family ties in Turkey far outweigh her family ties in Australia.

33. The Tribunal acknowledges that the security situation in Turkey has deteriorated markedly in recent years due to external security threats related to the war in Syria and Iraq as well as internal security threats.  Further, the Tribunal acknowledges that under the current President Turkey has seen changes that undermine democracy and the rule of law and have reduced freedom of expression, the independence of the judiciary and hindered political opposition.[1]  However, the evidence before the Tribunal is that the visa applicant has not been personally affected by the upheaval.  Even if this evidence is overstated the Tribunal is satisfied that the visa applicant will return to Turkey at the end of her visit because her two very young children will not be accompanying her on her visit to Australia.

    [1] DFAT Country Information Report, Turkey, 5 September 2016

34. The Tribunal acknowledges the review applicant has the support of her mother in Australia and that she recently spent time with her sister when she visited Turkey last year.  However, the evidence before the Tribunal is that the review applicant is in an emotionally vulnerable condition given the stress of dealing with a very ill child.  At the hearing she produced evidence that her child will undergo further surgery on 6 April 2018 and the Tribunal accepts this is placing further emotional stress upon her.  The Tribunal considers it reasonable that she would want the additional support of her sister during this stressful time, particularly as she testified that her mother and her other two children are also suffering the strain of these circumstances. 

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

36. 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

37. The Tribunal remits the application of the first named applicant 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.

38. The Tribunal does not have jurisdiction in relation to the second, third and fourth named applicants.

    Tania Flood
    Member