YASAR (Migration)

[2020] AATA 6153

YASAR (Migration) [2020] AATA 6153 (14 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MUJDAT YASAR

VISA APPLICANTS:  Mr AHMET YASAR

Mrs AYSE YASAR

CASE NUMBER:  1819095/1819846

HOME AFFAIRS REFERENCE(S):          BCC2018/2278534/BCC2018/2278544           

MEMBER:Tania Flood

DATE:14 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 14 December 2020 at 2:09pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – the visa applicant genuinely intends to stay temporarily in Australia –visiting Australian sons and grandchildren – close family tie to home country– comfortable economic position – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 1 June 2018 to refuse to grant the visa applicants a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 26 May 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants 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 applicants to satisfy the Minister that they genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visas on the basis that they did not meet cl.600.211 because the delegate was not satisfied that they genuinely intend to visit Australia temporarily.  

5. The review applicant agreed that the separate applications for review of his parents’ applications for Visitor visas could be reviewed jointly by the Tribunal.  The review applicant appeared before the Tribunal on 12 December 2020 by MS Teams Audio to give evidence and present arguments in support of the case.  The Tribunal also heard evidence from the first named visa applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant was represented in relation to the review.

6. The hearing was held during the COVID-19 pandemic and the Tribunal determined it was reasonable to hold the hearing by teleconference having regard to the nature of this matter and the individual circumstances of the applicants.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by teleconference.  The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. 

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

   BACKGROUND

8. According to information provided in the application for a Visitor visa, the first named visa applicant is a sixty-seven-year-old citizen of Turkey.  The second named visa applicant is his wife.   They reside in Giresun, Turkey.  They have two sons in Australia. They wish to travel to Australia for up to three months for a family visit. The visa applicants are retired.

9. The review applicant is the visa applicants’ son.

10. In a Statutory Declaration to the Department dated 19 May 2018, the review applicant stated that he would like his parents to visit Australia to meet his partner for the first time and to visit his brother and his niece and nephew. The review applicant also stated that he and his partner are expecting their first child on or around 13 June 2018 and he wanted his parents to see his baby. He further stated that he will support his parents financially and provide food and accommodation during their stay in Australia. In addition, he will ensure that they depart Australia before their visa expire.

11. On 10 December 2020 the review applicant provided the following documents for consideration:

    -Copies of payslips in his name

    -Evidence of his father’s trade as a tailor

    -Father’s taxation certificate

    -Father’s bank account statement

    -Evidence of title deeds and rental income

    Tribunal hearing

12. The review and visa applicants provided consistent and credible oral evidence to the Tribunal which is summarised as follows:

13. The review applicant stated that he is an Australian citizen.  He said he came to Australia as a student and was later granted a [permanent] visa [as] was his brother who arrived earlier.  [Information deleted]. 

14. The review applicant testified that he is in a de facto relationship and has one daughter aged two and a half.  His brother is separated.  He has two children aged six and nine.  They have no other family in Australia. The review applicant and his brother both work at Australia Post.

15. The review applicant stated that his parents and younger brother live in Giresun in Turkey.  His younger brother is single and lives with his parents.  His mother has five siblings and his father has a sister and four stepsiblings but they have no contact with the latter.

16. The review applicant stated that his father is a retired tradesperson but still maintains his own tailoring business.   His mother was doing child minding but due to the COVID pandemic she has stopped working.  His father’s business has slowed down but has continued to operate during the pandemic.  His father has a pension and they own their own home.  They also own another property which they rent.  His brother works for the municipal council.

17. The review applicant stated that his parents are in good health.  They have not travelled internationally before. 

18. The review applicant stated that his younger brother has never travelled to Australia and is not intending to apply to travel to Australia with his parents.  His parents have previously been refused Visitor visas to Australia.  He last saw his parents in Turkey in 2009.  [Information deleted].

19. The review applicant stated that they originally applied for his parents to visit them for six months but they would be more than happy if they could come for just three months to visit them and the grandchildren.  His parents have only met his brother’s eldest child when she visited Turkey with her mother.  They have not met the remaining grandchildren.

20. The review applicant stated that his parents have their own savings and he and his brother will also support them during their visit to Australia.

21. The review applicant said that his parents are members of an opposition political party, the People’s Republican Party, but they are not actively involved in political activities.    [Information deleted]. In his parents’ case it is more a matter of traditional support for that party.

22. The review applicant stated that his parents are Muslims but they believe in secularism. 

23. The review applicant stated that his younger brother remains in Turkey and will continue to care for his parents. He said that if they intended for his parents to come to Australia permanently they would have attempted to bring them here soon after they gained [permanent residency]. 

24. The review applicant stated he would be willing to pay a security bond in order to facilitate the grant of the visa.

25. The first named visa applicant confirmed he resides in Giresun with his wife and son. He confirmed that 2020 has been a difficult year due to the COVID-19 pandemic.  He said there are less cases in Giresun but his business has been impacted.  He has had to let go of one of his workers.  He said that compared to others they are relatively lucky.   He has a pension and owns his own home.  He also has another property which he rents.   His son also works at the municipality office.

26. The first named applicant confirmed that neither he nor his wife have any significant health issues.  He said he continues to work in his business.  His wife was working but she lost her job caring for children due to the pandemic. 

27. The first named applicant said that he and his wife would like to come to Australia for three months.  He said they miss their children and have only met one of the grandchildren.   He said they are curious about where their children have settled and would like to see Australia.  He said he is almost 70, has his own business and home in Turkey and has no intention to live anywhere else at this stage of his life.   He said that even if his children insisted that they stay with them in Australia they would not do so.

28. The first named applicant confirmed he has savings to pay for his travel to Australia. 

29. The first named applicant confirmed that he and his wife are members of the Republican People’s Party.  He said they are just ordinary members.  His wife did a little bit of work during the elections but that is the extent of their involvement.  He confirmed that their membership of the party has not caused them any problems in Turkey.

30. The first named applicant confirmed he is Muslim and that this has not caused him any problems in Turkey.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intend 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.

32. In the present case, the visa applicants are seeking the visa 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.

33. 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)).

34. The visa applicant and his wife have never visited Australia.

35. The review applicant first arrived in Australia on 5 September 2009 as the holder of a Student visa (TU 570). While onshore, he was granted a [permanent] visa on 2 February 2011. He acquired Australian citizenship on 10 July 2015. He has made one application as a sponsor, in relation to his wife’s combined partner visa application.

36. The review applicant’s wife first arrived in Australia on 15 April 2013 as the holder of a Student visa (TU 573). She was granted a Combined Partner visa (UK 820/BS 801) on 21 February 2019.

37. The visa applicant’s other son first arrived in Australia on 10 April 2008 as the holder of a Maritime crew visa (ZM 988). He was granted a [permanent] visa on 28 November 2008. He acquired Australian citizenship on 17 May 2013.

38. 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:

    ·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.

39. The visa applicants are in their sixties and the first named applicant is in receipt of a retirement pension.  In addition, he has provided proof of his declared tailoring business which his tax records indicate generates an income.  There is also evidence before the Tribunal to indicate that they receive rental income from a property they own in Turkey and have bank savings.  They have indicated that they wish to visit Australia for three months during which time they will be living with their sons.   Based on the available information the Tribunal accepts the visa applicants will not work or engage in study or training in Australia if they are granted Visitor visas.  The Tribunal is satisfied that the visa applicants will comply with conditions 8101 and 8201 if they are granted the visas.

40. The visa applicants’ intention to comply with conditions 8503 and 8531 is discussed below in relation to whether they genuinely intend to stay temporarily in Australia.

41. [Information deleted].

42. During the hearing the Tribunal discussed with the applicants whether the visa applicants’ circumstances might also lead them to remain in Australia due to fear of returning to Turkey.  On the available evidence the Tribunal accepts that the visa applicants are supporters and members of the Republican People’s Party, a mainstream centre-left opposition party.  That said, their evidence is that they are members in name only and are not actively involved in the political affairs of the party and do not hold any positions of authority within the party.  As the Tribunal found their evidence to be generally credible it accepts this.   

43. According to DFAT[1] the ability of critics of the government to protest against government policies through political demonstrations has been significantly reduced in Turkey in recent years and those seeking to protest on sensitive issues are likely to face a security response involving force if they proceed.  On the available evidence there is no basis for concluding that the visa applicants are engaged in the type of political activities which could lead to them facing harm in Turkey.  [Information deleted]. The Tribunal does not consider that their mere membership of the Republican People’s Party will be a disincentive for them to return to Turkey after visiting Australia.  As an elderly citizen there is also nothing to suggest that the first named applicant has anything to fear in relation to Turkey’s military service requirements.

    [1] DFAT Country Information Report, Turkey, 10 September 2020

44. The Tribunal acknowledges that the visa applicants have two sons and three grandchildren residing in Australia and that this could be an inducement for them to remain in Australia.  However, the Tribunal was persuaded by the first named visa applicant’s evidence as to his and his wife’s future intentions.  The Tribunal accepts that they lead a comfortable life in Turkey and have no desire to uproot and begin life again in a foreign country at this stage of their life.  In forming this view the Tribunal notes the visa applicants own and reside in their own home and have the benefit of a retirement pension in Turkey which is supplemented by income from the first named applicant’s business and their rental property.  The Tribunal is persuaded that despite the negative affect that the COVID pandemic has had on the family business and their salaried income they remain in a relatively comfortable economic position.  The Tribunal is satisfied that the prevailing economic conditions in Turkey will not be a disincentive for them to return home after visiting Australia.  Also, their youngest, and as yet unmarried child remains living with them and the Tribunal considers this to be an added incentive for them to return to Turkey.

45. The Tribunal notes the visa applicants have been separated from their [sons], for eleven and twelve years and are yet to meet two of their grandchildren.  The Tribunal considers it reasonable for them to visit Australia for up to three months to spend time with their children and grandchildren and to satisfy their curiosity about their family’s life in Australia.

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

47. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

48. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Tania Flood
    Member