1507445 (Migration)

[2015] AATA 3383

1507445 (Migration) [2015] AATA 3383 (9 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nida Kashif

CASE NUMBER:  1507445

DIBP REFERENCE(S):  BCC2014/3267335

MEMBER:Adrian Ho

DATE:9 September 2015

PLACE OF DECISION:  Melbourne

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 09 September 2015 at 5:28pm

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 14 May 2015 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 30 November 2014. 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.

5. The applicant has previously been refused by the Department on cl.600.215.  That decision was reviewed by the tribunal differently constituted and was remitted with a direction that the applicant satisfies cl.600.215.

6. The 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of extending her stay to be with her 2 year old daughter and husband. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).

11. The background to this case is well summarised by the tribunal in its decision regarding cl.600.215 (tribunal matter 1420454):

    During the hearing the Tribunal explained that the department's records show that the applicant arrived in Australia on 12 February 2012 as the holder of a Subclass 485 visa that was granted on 14 December 2011 and was valid until 30 March 2013. The applicant was then granted 5 successive visitor visas with the first being granted on 14 May 2013 and the last expiring on 3 December 2014; a period already in excess of 12 months. The department’s records show that the applicant has never departed Australia since first arriving on 12 February 2012. The applicant agreed at the hearing that these records are correct.

12. On the evidence the applicant has complied with the conditions of her last substantive visa, a subclass 485 visa.

13. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

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

    Findings

15. The applicant’s motivation for seeking her sixth visitor visa since May 2013 was laid out by her in submissions dated 5 March 2015 to the previously constituted tribunal:

    I…wish to submission (sic) regarding exceptional circumstances affecting the child born in Australia. I have come to Australia on 12 February 2012 on VC-485 Temporary Graduate Visa. While I was in Australia, my baby Asmara Kashif (DOB 02/04/2013) was born. Due to my medical condition and I was required to be with the baby, immigration granted me tourist visas.

    In relation to the exceptional circumstances, I want to submit that my baby is still very young. In our GPs opinion

    a) Asmara still requires before proper emotional and physical development.

    b) She still needs to be trained for many things for her normal development.

    c) Separation from her mother would have an adverse effect on her development.

    Secondly, I cannot take Asmara to Pakistan due to recent militant attacks in our region. Due to these activities, I believe not to be safe for Asmara to travelled (sic) to Pakistan with me. I do not want to put her life in danger by making her travel with me to Pakistan. Asmara’s bridging the visa will not allow her to re-enter Australia, so if the situation in Pakistan becomes worse she will not be able to re-enter Australia. I do not want to take the risk by taking her with me. If the Tribunal grant me the Tourist visa for at least 6 months, Asmara will be bit more independent and the situation in Pakistan may improve.

    Either be the case I will be able to travel back to Pakistan alone or with her. I hope tribunal will look will consider my circumstances grant me the requested visa, so that I can stay for another six months with my daughter.

16. In summary the applicant gave birth to her now two year old daughter in Australia.  Her daughter and husband are on bridging visas awaiting the outcome of his permanent visa application.

17. The previous tribunal noted in its decision that the applicant sought further stay on a visitor visa for six months after which she anticipated her daughter would be old enough for her – the applicant – to return to Pakistan. 

18. For completeness, the applicant has premised that forecast on the security situation in Pakistan improving over the six months from March 2015. 

19. Six months have now almost passed since the applicant took that position in March. 

20. In a letter to the tribunal dated 8 September 2015 the applicant proposed a stay of a further two months from now.  That is in keeping with proposed length of stay she proffered in March.

    De facto residence

21. A question arises as to whether the applicant intends to use the series of visitor visas she has been granted to maintain a form of de facto residence in Australia, and to extend that residence by a grant of a further visitor visa.  That might point to a form of ‘misuse’ of a series of visitor visas. 

22. No definite line can be drawn between the idea of a series of compliant, regular, and lengthy visits, and an attempt over time to mimic residence in Australia.  There is no rule or regulation which prescribes when the former becomes the latter.  It is however arguable that, over time, a visitor may demonstrate that they intend to apply for and obtain temporary visas that will allow them to maintain as much uninterrupted presence in Australia as they can achieve.  That intention may not be consistent with the intention of making one or several temporary visits. 

    A permanent visa application by a member of the family unit

23. There is also a question of whether the applicant’s husband and daughter’s permanent visa application support an inference that they do not intend a temporary stay in Australia, and therefore, as a member of their family unit, the applicant too does not intend a temporary stay in Australia.

24. In the case of applicants with pending permanent parent visa applications made offshore who wish to visit, written policy draws a distinct between the intention inferred from the permanent visa application on foot, and a shorter-term intention attaching to the visitor visa application (Genguide H):

    46.2     Special arrangements for applicants in the parent migration queue

    In this context, when deciding a visitor visa application made by a person with a queued parent migration application, under policy, the existence of a permanent migration application and an obvious intention to eventually reside permanently in Australia is not grounds to find that the applicant does not meet the "genuine temporary stay" criterion - see section 7 The genuine temporary stay requirement.

    Instead, officers should regard this as a longer term intention and focus on the applicant's short term intentions when assessing the "genuineness" criterion in assessing visitor visa applications from parents.

    Officers are encouraged to consider granting applicants outside Australia who are in the parent queue a Tourist stream visa with 5 year travel period, 12 month stay and multiple entry so the parent can visit their family for longer periods on regular occasions. However, these applicants should be counselled that conditions 8558, 8501 and 8503 will be applied to their visa.

25. The tribunal considers that the applicant has been made clearly aware that the visitor visa scheme is not designed, nor does it permitted, indefinite or prolonged stay in Australia by the seeking of an indefinite number of visitor visas.

26. As stated, there is no definite line after which a series of stays as a visitor should be regarded as an attempt to mimic residence.

27. As to the applicant’s intentions, she has good grounds for wishing to extend her stay in Australia and the tribunal considers that it is in the best interests of her daughter to have access to her mother.  Medical opinion submitted to the previous tribunal supports this:

    Provided in support of this statement was a letter from Dr Sayed Mathar Husain Kazmi of the Tristar Medical Group - Dear Park dated 27 February 2015. Dr Kazmi writes that the applicant has a 22 month old daughter who is totally dependent on her for her proper emotional and physical development and that the child is yet to be trained for many things for normal development. Dr Kazmi’s opinion is that the “separation of mother and child at this stage could have an adverse effect on her emotional, physical and learning development”.

28. The tribunal considers that it must assess the applicant’s intentions with respect to the period now proposed, and assess if those intentions are in line with the criterion.

29. Since March the applicant has consistently maintained that her daughter’s needs require her to be present with her daughter for around the six months to October or November 2015. 

30. That is, she states that she does not intend to seek to remain in Australia to await the outcome of her husband and daughter’s permanent visa application should that take longer.

31. Despite her already long stay in Australia on visitor visas, the tribunal considers that the timeframe she proposes for a further grant of a visitor visa is for a discrete period of time where the applicant has good reasons to remain to be a mother to her daughter.

32. For these reasons, the tribunal finds that the applicant intends to comply with the above visa conditions and genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

33. The applicant meets cl.600.211.

    DECISION

34. 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.

    Adrian Ho
    Member