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Gul, Tuncay [2000] MRTA  2152  (26 July 2000)

Last Updated: 18 August 2000

 [2000] MRTA 2152 

CATCHWORDS: Subclass 676 - genuine visit - adequate funds - risk factor applies -

VISA APPLICANT: Dilsa GUL

REVIEW APPLICANT: Tuncay GUL

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Michael NORTHCOTT

MRT CASE NUMBER: N99/04573

DIMA CASE NUMBER: V/V Papers

DATE OF DECISION: 26 July 2000

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Short Stay (Visitor) (Class TR) visa.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Dilsa Gul (the 'visa applicant'), a national of Turkey, born on 11 March 1944, applied for a Short Stay (Visitor) (Class TR) visa on 4 May 1999. The delegate's decision to refuse to grant the visa was made on 7 May 1999.

2. Tuncay Gul (the `review applicant'), the son of the visa applicant, lodged an application for an internal review by a review officer with the Department on 31 May 1999. This became an application for review to the Migration Review Tribunal on 1 June 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No. 1) 1998.

VISA CRITERIA AND POLICY

3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Other matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs ('Immigration'). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. Class TR contains one visa: the Subclass 676 (Tourist (Short Stay)) visa. The Tribunal must affirm the decision under review if one of the criteria essential for the grant of the visa is not met. On the other hand, if the Tribunal finds that one or more of the criteria are met, it may remit the application for the visa to Immigration with a direction that specified criteria have been met, and it is then a matter for the Minister or a delegate to consider the remaining criteria. The Tribunal's consideration is therefore usually limited to what might be described as the criteria in dispute. The criteria and policy relevant to this review are:

Legislation: Part 676 of Schedule 2 to the Regulations

Clause 4011 of Schedule 4 to the Regulations

Directions: Policy Directions No.s 1 and 2 of 1996 issued by the Minister under section 499 of the Act

Policy: Procedures Advice Manual 3: Generic Guidelines H - Visitor visas

Procedures Advice Manual 3: Schedule 4 - Public interest criteria - criterion 4011

5. The Tribunal generally has regard to the regulations as the regulations stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

6. The criteria for a Subclass 676 visa relevant to the Tribunal's consideration are:

* that the visa applicant 'seeks to visit Australia ... for the purpose of visiting an Australian citizen or Australian permanent resident, who is a parent, spouse, child, brother or sister of the [visa applicant]' and 'has adequate funds, or access to adequate funds, for personal support during the visit' (clause 676.211 and paragraph 676.221(2)(a))

* 'the period of stay in Australia proposed in the application does not exceed 3 months' (clause 676.212 and paragraph 676.221(2)(b))

* the visa applicant satisfies the decision-maker that `the expressed intention of the [visa applicant] only to visit Australia is genuine' (paragraph 676.221(2)(c))

7. Other relevant legislation.

Section 359A. Applicant must be given certain information

359A. (1) Subject to subsection (2), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

(2) Subject to subsection (3), the invitation must be given to the applicant by one of the methods specified in section 379A.

(3) Subsection (2) does not apply if the applicant is in immigration detention because of:

(a) a decision to refuse to grant him or her a bridging visa; or

(b) a decision to cancel his or her bridging visa.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information.

Section 359B. Invitation to give additional information or comments

359B. (1) If a person is:

(a) invited under section 359 to give additional information; or

(b) invited under section 359A to comment on information;

the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2) If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) If the invitation is to give information or comments at an interview, the interview is to take place:

(a) at the place specified in the invitation; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a) a later time within that period; or

(b) a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

Section 359C. Failure to give additional information or comments

359C. (1) If a person:

(a) is invited under section 359 to give additional information; and

(b) does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

(2) If the applicant:

(a) is invited under section 359A to comment on information; and

(b) does not give the comments before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.

Section 360. Tribunal must invite applicant to appear

360. (1) The Tribunal must invite the applicant to appear before the Tribunal to

give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

Section 363A. Tribunal does not have power to permit a person to do something he or she is not entitled to do

363A. If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

EVIDENCE

8. On 23 February 2000 the Tribunal sent a letter to the applicant at 17/54 Fotheringham Street Marrickville 2204. This is the address given by the applicant as his residential address in his Application for Review lodged 31 May 1999. This is also the address the review applicant gave as the address to which letters should be sent. A copy of the letter has been placed on the Tribunal file. The Outgoing Mail register maintained at the Migration Review Tribunal shows that the letters was sent.

9. The letter sent to Mr Gul provided Mr Gul with particulars of information which was available to the Tribunal, but which had not been supplied by Mr Gul, that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. Mr Gul was invited to comment on the information within 28 days of the date of the notification of the invitation to comment. Mr Gul was further advised that, as the letter was being posted, he had a total of 35 days from the date of the letter to respond. The letter also contained the following paragraph.

"If the Tribunal does not receive any comments within the above period, it may, pursuant to section 359C of the Migration Act, make a decision on the review without taking any further action to obtain your comments on the information provided; and you will not be entitled to appear before the Tribunal".

No response has been received from Mr Gul.

10. The Department's file discloses that the delegate's letter advising the visa applicant of the decision stated that the visa was not granted on the basis that the expressed intention to visit to Australia by the visa applicant was not genuine and that the applicant may remain in Australia after the expiry of visa. The review applicant and the visa applicant have claimed the intention of the visit is genuine.

11. On application, the visa applicant said that she intended to visit Australia for 3 months. The visa applicant said she has $2000 for the visit which includes the purchase of her travel tickets. She also said that the review applicant would provide her with funds including her return travel tickets. Mr Meksieiyas (presumably a friend of the review applicant) has statutorily declared that he will provide the visa applicant with financial support during her visit to Australia.

12. In his application, the review applicant said he cannot afford to go overseas. He said that his mother would buy her airfare to Australia and that Mr Meksieiyas would support his mother while in Australia. He also said that he would provide documentary evidence to prove the support from Mr Meksieiyas.

13. The Tribunal file discloses that no further material has been provided by the visa applicant, or the review applicant, or Mr Meksieiyas after the lodgement of the review application.

FINDINGS

14. The Tribunal is satisfied the letter dated 23 February 2000 was sent to the review applicant at his residential address in Australia. A copy of the letters is retained on the Tribunal's file. The entry in the Tribunal's mail register shows that the letter was sent on 23 February 2000.

15. The Tribunal is satisfied that, pursuant to section 360 of the Act, the review should be conducted without the applicant being present. The review applicant was requested to provide comments on information in a letter dated 23 February. He was advised that if he did not provide the comments within the designated time period the review would proceed in his absence. He did not provide the comments. In those circumstances the applicant is not entitled to be present.

16. The Tribunal is satisfied that it is appropriate to conduct the review without the Tribunal taking further action to obtain the comments from the review applicant. On 23 February 2000 the Tribunal asked the review applicant to provide comments on adverse information available to the Tribunal but not supplied by the review applicant. The review applicant has not provided those comments.

17. The Tribunal finds that the visa applicant does not have adequate funds, or access to adequate funds, for personal support during the visit. The visa applicant stated in her application that she had $2,000 to buy her ticket and support herself while in Australia. She further stated that her son would provide her with support and provide her with a return ticket. She also provided a statutory declaration from Mr Meksieiyas in which he declares that he will support the visa applicant while she is in Australia.

18. In its letter of 23 February 2000 the Tribunal invited the review applicant to comment on whether the visa applicant has adequate funds, or had access to adequate funds, for personal support during her visit. The review applicant did not respond to that invitation. The Tribunal file discloses that there has been no communication from either the visa applicant, the review applicant, or Mr Meksieiyas since 31 May 1999. The Tribunal is not satisfied in those circumstances that the visa applicant has adequate funds or access to adequate funds for personal support during her visit. $2,000 is not sufficient, in the Tribunal's view, to pay for the visa applicant's ticket to and from Australia and to support her while she is here. There is no other evidence, other than the assertions that the review applicant and Mr Meksieiyas will support the visa applicant while she is here, to show that the visa applicant has access to any other funds. Neither the review applicant nor Mr Meksieiyas has provided any material to show what funds they have to support the visa applicant while she is in Australia. The review applicant was invited to comment on the adequacy of the available funds. The review applicant did not do so.

REASONS FOR DECISION

19. The Tribunal has determined that the review should proceed in the absence of the review applicant. The Tribunal is satisfied that it is appropriate to conduct the review without the Tribunal taking further action to obtain comments from the review applicant.

20. The Tribunal has found that the visa applicant does not have adequate funds, or access to adequate funds, for personal support, during her visit. Criterion 676.211 provides that an applicant must, at the time of application, have adequate funds, or access to adequate funds, for personal support during the period of the visit. As the visa applicant does not have such funds, or access to such funds, the application for review must fail.

DECISION

21. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Short Stay (Visitor) (Class TR) visa.