Yuce (Migration)

[2019] AATA 2722

Yuce (Migration) [2019] AATA 2722 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Erkam Yuce

VISA APPLICANT:  Mrs Selma Yuce

CASE NUMBER:  1622013

DIBP REFERENCE(S):  BCC2015/3072254

MEMBER:Mary Urquhart

DATE:27 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 27 May 2019 at 3:20pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – validly married under the laws of Turkey – recognisable marriage under the Marriage Act – place of domicile – dual citizenship – Australian marriageable age – under the age of 18 – genuine de facto relationship – minimum age requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 2.03A; Schedule 2, cls 309.211, 309.213, 309.221

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 Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 October 2015 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.213 because she did not satisfy conditions of s.5F of the Act and does not meet the minimum age requirement stated under 2.03A(2).

4. The review applicant appeared before the Tribunal on 20 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Emine Zuhul Yuce, Mr Durran Yuce and from the visa applicant by telephone from Turkey.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. The review applicant through his representative requested time to provide a further submission in support of the application. The submission was to include evidence that the applicant obtained his Turkish ID and Registration in 2013 as claimed in his evidence.

   Post Hearing

7. On 27 May 2019 the Tribunal  received a Post Hearing submission which included the following:

   ·A copy of a Visa card in the review applicant’s name bearing only one date “09/20”, (uncertified); the submission claimed the card was obtained in Turkey; no date of issue was included.

   ·A copy of a Visa card (TLCARD) in the review applicant’s name indicating validity until 07/23. It is uncertified and does not indicate the date of issue.

   ·A Turkish driver’s licence in the name of Duran Yuce issued 25 November 2015; it is accompanied by a translation.

   ·A family registration document naming the review applicant and applicant. It is untranslated save for the dates included showing “04.09.2015”.

   ·A translated document, headed Republic of Turkey Birth Certificate. It indicates Erkam Yuce (the sponsor) place of birth was Melbourne on 19/9/1989. It lists the review applicant’s marital status as “married”. It was issued on 6/10/2015 by the Civil Registry Office of Yenimahalle. The translation states it is “illegibly signed by: Durali Tasci-Deputy Registrar”.

   ·A document, translated, indicating Duran Yuce is on the Turkish Electoral role. It is dated 20/05/2019.

   ·A page of the passport of the review applicant indicating date stamps for 2019, 2017, 2013, and 2015. The stamps are somewhat illegible.

   ·A copy of a Certificate IV in Justice issued to the review applicant in December 2014 by the Kangan Institute.

   ·A copy, uncertified, of a letter dated 27 /7/2015 on Tekpa Laboratory Systems letter head indicating it has received an application from the review applicant for the advertised position of law clerk with the organization and indicating it would like to schedule an interview.

8. The Tribunal has carefully considered the post hearing submission and all the evidence.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the visa applicant is the spouse of the sponsor as defined at the time of application and at the time of decision.

    Whether the parties are in a spouse or de facto relationship

11. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is  an Australian citizen.

12. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act: s.5F(2)(a).

13. The review applicant is a 29 year old Australian citizen. At the hearing he gave sworn evidence that he has dual citizenship as a Turkish national having obtained it, he said, “in 2013”. He claims he also obtained a Turkish National ID card at the same time.

14. The applicant gave evidence that he had travelled to Turkey in July 2015 with his parents for a holiday. Whilst there he claims the applicant “found” him on Instagram sometime in August 2015. He said in response to questioning that the applicant was a distant relative as she is the child of an aunt’s child where the aunt is his father’s cousin. He said he and his parents went to the applicant’s home to meet her in person on 30 August 2015. He said he and the applicant registered their marriage on 4 September 2015. He told the Tribunal that the reason for the speed of the marriage was because it was “love at first sight”. The parties lodged this application on 21 October 2015. Somewhat inconsistently the visa applicant gave clear evidence that the marriage was an arranged marriage organised by her grandmother.

15. The review applicant gave evidence that he had only intended to stay in Turkey for 3 months. However he did not return to Australia until 12 December 2016. His parents remained in Turkey until 2017. The review applicant said he returned to Australia to set up a business and remained here for some 9 months. He said it was during this time he learned the application for his wife’s visa had been refused. He then left the business in his brother’s hand and returned to Turkey. He remained in Turkey until his recent return to Australia in May 2019 to attend the review hearing. Given the sponsor’s evidence that he only intended a 3 month holiday it is somewhat inconsistent to have applied for a law clerk job sometime prior to 27 July 2015 the date of an acknowledgement letter that he has submitted.

16. The review applicant’s parents confirmed their travels and recent years spent in Turkey. Asked how they survived financially in Turkey Mrs Emine Yuce explained that they lived on her disability pension from Australia whilst away.

17. Evidence in the form of letters from treating doctors was submitted indicating that the applicant’s mother Mrs Emine Yuce has had a history of Schizophrenia since 1992 and would benefit from the support of the sponsor’s wife. The Tribunal accepts the medical evidence. Asked about her treatment whilst in Turkey from 2015 to 2017 oral evidence was given that she was able to access the medication she required.

18. Asked the reasons for the visa refusal the review applicant responded vaguely that it was due to his wife’s age. The review applicant explained that he was not aware of the rules governing marriage; he said he and his wife were legally married in Turkey. He said if he had known age was a problem they would have waited. He said he had read the delegate’s determination and understood what he read. Inconsistently he said he only looked at the age problem and appeared unaware of the impact of that issue. He indicated that he hoped the Tribunal would grant the visa.

19. The visa applicant confirmed evidence of her marriage to the sponsor. She said they were distantly related. She gave evidence of meeting in person. She said she understood that her age was the reason for the refusal of the visa.

20. The Tribunal discussed with the parties that there is no provision or discretion under the Regulations to grant a visa where the requirements for the visa are not met.

    Are the parties validly married?

21. The parties provided a marriage certificate issued on 4 September 2015. At the time of their civil marriage the applicant, born 9 March 1998 was 17 years and 6 months old.

22. In considering the validity of the marriage the Tribunal has reviewed the Procedures Advice Manual (PAM) 3, definitions of spouse contained in the Act in s.5F and s.14.1 and the Marriage Act.

23. The Marriage Act provides that the marriageable age in Australia is 18 years of age. However it also recognises certain foreign marriages where one or both of the parties are under 18 years old. As is the situation in this application regarding the applicant at the time of the marriage.

24. In such instances, the marriage is recognised if both parties were at least 16 years of age at the time of marriage and the marriage was valid in the country in which it was solemnized and neither party to the marriage, for the purposes of the Marriage Act, was domiciled in Australia at the time of the marriage.

25. The Tribunal  accepts the marriage between the parties is valid in Turkey.

26. In considering the review applicant’s domicile at the time of the marriage the Tribunal has considered all the evidence regarding his circumstances. In particular the Tribunal has had regard to such matters as his country of birth, the country where he is usually resident, and the duration of his residence in Australia at the time of the marriage, his dual citizenship and his intentions to make a home in Australia or elsewhere.

27. The review applicant was born in Australia on 19 September 1989. He gave evidence that he has travelled to Turkey several times with his family on holiday including 2010, 2013 and 2015. Since his marriage in September 2015 (and his recent return in May 2019) he has only spent some 9 months in Australia. He said he returned for a period for the purpose of getting on with plans for his and his wife’s future in Australia. This was his clear evidence.

28. Whilst in Australia the review applicant set up a business. Whilst the Tribunal accepts he has had periods out of Australia for, on his own evidence, holidays, he has otherwise lived, grown up, studied and worked whilst in Australia.

29. In reference to s5F of the Act, the PAM states that the fact that the Australian party to the relationship is sponsoring their spouse's visa application can support a view that the Australia party is indeed still domiciled in Australia. At the hearing he gave clear evidence that he is sponsoring the applicant as his spouse to come to live with him in Australia indicating a strong intention to make his home in Australia. The Tribunal gives weight to the review applicant’s sponsorship of the applicant and finds that the review applicant was domiciled in Australia at the time of the marriage.

30. The Tribunal notes and gives weight to the evidence that the applicant lodged the visa application less than eight weeks after her marriage to the review applicant in Turkey.

31. The review applicant gave evidence of contact with Australian immigration authorities in regard to what was happening with the application and in particular he raised concerns about the amount of time it was taking to process the application. He has also contacted the Tribunal numerous times in relation to the time the processing of the application was taking. The Tribunal file contains a number of file notes regarding this.

32. On 11 October 2018 (see Tribunal folio 68) the review applicant wrote as follows as follows:

    “My name is Erkam Yuce (husband of Selma Yuce) I would like to learn if there is progress with Selma's visa appeal. We are at a point of frustration at its peak, it has been over 3 years including the wait from the embassy, me and my wife is under serious stress. I really need to come home back to Melbourne with my wife, start back to work, do my taxes, basically start my life. It has also had a major impact on my parents too, my mother is very ill and wants me and Selma beside her as well my father needs us too. Please help us overcome this situation.”(sic).

33. On 20/11/2018 (see Tribunal folio 72) the review applicant wrote as follows as follows folio 70

    “HI my name is Erkam Yuce (husband of Selma Yuce) I would like to learn the progress of Selma's case. I can't express enough of how difficult me and my wife's life has become. I myself have a lot of situations that I need to attend back home (Melbourne) which includes my tax obligations; I have no one here to leave my family, I cannot come home without my wife. My parents can only do so much to help and support us; I have put them through financial difficulties. Please help us as we need to start our life back home immediately. I have lodged the application in 21/12/2016 and before that I have been waiting approximately 15 months with the immigration” (sic).

34. The review applicant claims that he has dual citizenship being also a citizen of Turkey. He gave oral evidence that his father obtained his dual citizenship in Turkey in 2013. No independent evidence has been submitted to support this claim. He said he obtained an ID card at the same time. No evidence has been submitted to support this claim. The review applicant claims to have had dual citizenship at the time of the marriage. The Tribunal has considered the review applicant’s dual citizenship. It accepts he has dual citizenship. However, the issue of concern is his domicile at the time of application. The Tribunal has considered the review applicant’s evidence of dual citizenship along with other relevant considerations in determining his domicile at the time of the marriage.

35. The Tribunal has considered the evidence that the review applicant visited Turkey in 2010 and 2013 and 2015. On his evidence the trips were “holidays”.  In 2015 he said he had intended to stay for three months. At the time of his marriage the review applicant claims he was resident in Turkey. He has provided a Turkish residency certificate showing his address in Ankara (Turkey), which was however issued on 15 June 2016. Never the less the Tribunal accepts he was in Turkey at the time of the marriage. A family registration document naming the review applicant and applicant appears to have been issued the same day as the marriage.

36. There is no evidence that at the time of the marriage the review applicant had the intention to take up permanent residence in Turkey.

37. On the basis of all the evidence the Tribunal is satisfied that at the time of the marriage the review applicant was domiciled in Australia.  

38. As the Tribunal  has decided the review applicant was domiciled in Australia it next turned to a consideration of s.14.2 which gives guidance describing the conditions if either party is domiciled in Australia:

    De Facto Relationship

39. A marriage is not recognised as valid under the Marriage Act if:

    ·one or both parties to the marriage were (under the Marriage Act) domiciled in Australia at the time of the (foreign) marriage and either party was under Australian marriageable age at that time.

40. As the sponsor was domiciled in Australia at the time of the marriage, and the applicant was under the age of 18 at that time, the marriage is not recognisable under migration law.

41. The evidence before the Tribunal is that the parties have lived together in Turkey since their marriage in September 2015. For this reason the Tribunal has considered whether they may be granted the visa against s5CB 'de facto partner provisions.

42. The legal requirement under Regulation 2.03A (2), for any visa application where the visa applicant (either as the main applicant or a family unit member) is claiming a de facto relationship, is that both visa applicant and their partner must be at least 18 years old at the time that they claim the relationship - that is, when they apply for the visa. This age requirement applies to all visa applications.

43. In this application the parties' claim their relationship started after the review applicant arrived in Turkey in August 2015 and the parties met in person. At the time of lodgement of this application, (21 October 2015) the parties claimed to be married and living together. The evidence confirms that the visa applicant born 3 March 1998 was 17 years of age at that time. Based on this, the parties do not meet the criteria prescribed under r.2.03A (2).

44. At the time of the marriage the Tribunal finds the review applicant was domiciled in Australia for the purpose of this review. The applicant was 17 years old on 4 September 2015 when the marriage took place. On 21 October 2015 when the application was lodged the applicant was still not 18. Accordingly the conditions of s5F are not met and the visa applicant does not meet the minimum age requirement stated under r.2.03A (2).

    CONCLUSION

45. As the applicant does not meet the requirements of 2.03A (2), the applicant is unable to satisfy the criteria for the grant of a Partner (Temporary) (Class UP) Subclass 399 visa.

46. As the applicant is unable to satisfy the prescribed criteria for the grant of a Partner (Temporary)(Class UP) Subclass 390 visa, the applicant is unable to satisfy the prescribed criteria for the grant of a Partner (Residence)(Class BC) Subclass 100 visa.

47. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

48. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Mary Urquhart
    Member

    
    

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).