YALCIN (Migration)

[2017] AATA 2133

YALCIN (Migration) [2017] AATA 2133 (3 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nezaket YALCIN

VISA APPLICANT:  Ms Jale AKDEMIR

CASE NUMBER:  1703457

DIBP REFERENCE(S):  BCC2016/4090400

MEMBER:Tania Flood

DATE:3 November 2017

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 03 November 2017 at 4:07pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Genuine temporary entrant – Visiting a family member – Incentive to return to home country – Intention to work – Intention to study

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.221, cl 600.222, Schedule 8, Condition 8101, 8201, 8503, 8531

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 20 December 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 5 December 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 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 evidence did not support a genuine visit is intended.

5. The review applicant appeared before the Tribunal on 31 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

8. The visa applicant was born in Turkey on 7 September 1985.  She is a Masters student and resides and studies in Istanbul.  She has travelled to Australia twice before to visit her mother who is an Australian citizen.

9. The review applicant is the visa applicant’s mother.  She is not working as she is a full-time foster parent.  She lives in housing commission accommodation. 

10. On 4 October 2017 the Tribunal received submissions and numerous supporting documents from the review applicant’s representative.  These have been read and considered by the Tribunal in making this decision.

    TRIBUNAL HEARING

11. The review and visa applicants provided the Tribunal with consistent and credible evidence which is summarised as follows:

12. The visa applicant is the only daughter of the review applicant.  Her father resides in Turkey as do numerous other members of the family including, aunts, uncles, cousins.

13. The visa applicant has been in a de facto relationship with her Macedonian partner for five years.  They live in a rented apartment in Istanbul.  Her partner is a Lecturer at a University in Istanbul and also writes a weekly column for a state newspaper.  They share household expenses.

14. The visa applicant receives her mother’s Turkish retirement income.  Previously she did some tutoring but for the moment she is concentrating on completing her Master degree. 

15. The visa applicant will complete her Master degree in May 2018 and is considering further doctoral studies either in Turkey or abroad.  Her partner is considering offers to undertake doctoral studies in either Birmingham or in America.  If he takes up either offer the visa applicant will accompany him.  She has current visas to America and the European Union. 

16. The visa applicant has travelled quite extensively in the European Union and to America for leisure and study purposes and to accompany her partner who delivers guest lectures from time to time. She has visits to Switzerland, Italy and Spain scheduled in the coming months.

17. The visa applicant previously held an Australian student visa which was later voluntarily cancelled.  She was unable to commence her studies because she injured her hand and in any event she decided she did not want to study in Australia because she preferred to be with her partner in Turkey.

18. The visa applicant and her partner are not involved with any political groups and did not take part in any demonstrations or protests surrounding the attempted coup in Turkey.  Their studies and work have not been interrupted as a result of actions taken by the government against academics suspected of supporting the coup.  If they desired to leave the country they could do so at any time as the visa applicant’s partner is Macedonian and therefore able to reside in the EU and the visa applicant has a multiple entry visa for America which expires in 2025.

19. The visa applicant and her partner have no problems living in a de facto relationship in Istanbul.

20. The visa applicant would like to visit her mother in Australia for approximately one month.  She cannot stay much longer than this because the review applicant has responsibilities as a foster parent to a disabled child.  Her partner will pay for her air ticket and she has her mother’s pension money for expenses and will reside for the duration of the visit with her mother.

21. The visa applicant will return to Turkey at the end of her visit to Australia because she is in a committed relationship with plans to marry in future.  She and her partner are building academic careers which will involve them travelling, working and studying in different countries and she will not do anything to jeopardise this by failing to comply with any visa conditions set by the Australia government.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

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 applicant seeks the visa for the purposes of visiting a family member. 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 was granted a Provisional Partner visa (UF-309) on 7 April 2008 and entered Australia on 19 April 2008.  She departed Australia on 3 June 2010 before her visa expired.  On 5 July 2010 she was granted a Partner visa (BC-100) and she re-entered Australia on 10 July 2010.  On 3 October 2012 she was granted Australian citizenship.

26. The visa applicant first entered Australia on 27 January 2009 as the holder of a Visitor visa (TR-676).  On 12 November 2012 she was granted a student visa (TU-573) and returned to Australia on 25 November 2012.  She departed Australia again on 21 April 2013 after her student visa was cancelled following her decision not to complete her studies in Australia.

27. 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.

28. Based on the available evidence, including copies of her partner’s payslips, the Tribunal is satisfied the visa applicant is financially supported by her de facto partner of five years in Turkey.  In addition, the evidence supports that she is in receipt of her mother’s Turkish pension payments.  The visa applicant has testified that she only intends to visit Australia for approximately one month and that she will be accommodated by her mother during this period.  In view of the above, the Tribunal is satisfied that the visa applicant has no need to, and will not work during the period of her proposed visit to Australia.  The visa applicant is in the final stages of completing her Master degree in Turkey and has no plans to engage in study or training during the course of her proposed visit to Australia.  On the available evidence the Tribunal is also satisfied that the visa applicant will not engage in study or training while visiting her mother in Australia.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if she is granted a visa.

29. 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.

30. The Tribunal is satisfied that the visa applicant is living in a de facto relationship with her partner of five years in Turkey and that they intend to marry at a future date. The Tribunal is satisfied her partner is working and has no intention to travel to Australia with her.   In addition, her father is residing in Turkey as are numerous other family members including aunts, uncles and cousins.  On the other hand, the visa applicant’s mother is her only relative in Australia.  The Tribunal is of the view that the applicant’s family ties, which include her de facto partner in Turkey, far outweigh her family ties in Australia and that this provides a strong incentive for her to return to Turkey at the end of her visit.  Indeed, the Tribunal finds it significant that one of the reasons given by the visa applicant for discontinuing her studies in Australia previously was the wish to be reunited with her partner.

31. On the information before it, the visa applicant is close to completing her Master degree in Turkey.  She and her partner are considering a possible relocation to the UK or the United States in order that her partner, and possibly she, will undertake doctoral studies outside of Turkey in order to enhance their future career prospects.  To this end, the visa applicant has a valid visa for entry to the European Union and a multiple entry visa to the United States which only expires in 2025.  In addition, the evidence before the Tribunal is that the visa applicant has travelled extensively in Europe, Asia and the United States for both academic and leisure purposes over the course of the last seventeen years.  She has returned to Turkey on each occasion.  She also previously visited Australia on a tourist visa with which she complied and while her student visa was cancelled in 2013 the Tribunal is satisfied that it was of her choosing when she decided she did not want to complete tertiary studies in Australia.  The Tribunal is satisfied that the visa applicant’s travel and migration history raises no concerns that she will overstay her visa should be granted permission to visit Australia again. 

32. At the hearing the Tribunal discussed with the visa applicant the current conditions in Turkey and the government’s crackdown on academics and education officials in the wake of the unsuccessful coup.  The visa applicant stated that she has not been personally affected by these developments and nor has her partner.  The submissions provided to the Tribunal prior to the hearing indicate that the visa applicant has undertaken travel to the European Union since the attempted coup and has returned to Turkey each time.  The Tribunal considers her actions support the evidence she provided at hearing.  The Tribunal is satisfied that the current political climate in Turkey is not an inducement for the applicant to seek to remain indefinitely in Australia.  Furthermore, the Tribunal has placed weight on the fact she is in possession of valid visas to the European Union and the United States where her entry is assured.  The Tribunal is also persuaded by the visa’s applicant’s evidence that she and her partner are building an academic career which will entail frequent international travel and that she will not jeopardise this by failing to comply with her visa conditions.

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

34. 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

35. 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.

    Tania Flood
    Member