Abou Rich (Migration)

[2021] AATA 5260

Abou Rich (Migration) [2021] AATA 5260 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Siham Abou Rich

CASE NUMBER:  2005152

HOME AFFAIRS REFERENCE(S):          BCC2020/126667

MEMBER:Mark Bishop

DATE:9 November 2021

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 600.215 of Schedule 2 to the Regulations.

Statement made on 09 November 2021 at 10:44am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – stay in Australia for more than 12 consecutive months – two extensions of stay granted previously – exceptional circumstances exist – emotional and physical support for Australian citizen daughter – shoulder, foot, and back pain – victim of family violence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.215

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 Home Affairs on 24 February 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 23 January 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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 (Cth) (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 600.215.

5. The Review Applicant (RA) appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.215 is met.

9. In the present case, the visa applicant seeks the visa for the purposes of continuing a visit to Australia. Details are set out in the delegate’s record as reproduced below.

10. Clause 600.215 of the Migration Regulations provides as follows:

    600.215

    (1) If subclause (2) applies—exceptional circumstances exist for the grant of the visa.

    (2) This subclause applies if the grant of the visa would result in the applicant being

    authorised to stay in Australia as the holder of one or more of the following visas for a

    total period of more than 12 consecutive months:

    (a) one or more visitor visas;

    (b) a Subclass 417 (Working Holiday) visa;

    (c) a Subclass 462 (Work and Holiday) visa;

    (d) a bridging visa.

11. The delegate made the following findings:

    ·The applicant last arrived in Australia on 5th August 2018 as the holder of a FA600 Visitor (Tourist stream) visa which ceased on 15th October 2018. Two onshore FA600 Visitor visas were further granted consecutively to the applicant allowing further stay until 5th February 2020. The applicant has remained in Australia continuously since their last arrival on 5^th August 2018.

    ·On 23rd January 2020 the applicant lodged an application for a FA600 Visitor- Tourist Stream visa via the internet. The applicant has requested a further stay until 21st January 2021, which would result in the applicant staying in Australia for a total period exceeding 12 consecutive months. To satisfy the requirements for the grant of a visitor visa, the applicant is required to demonstrate that exceptional circumstances exist for grant of the visa. The applicant has stated their reasons for further stay are “need to extend my visitor's visa as my daughter a single mum, has family violence court cases, she is scared to be alone with the baby & is on antidepressants, doesn't have in Australia any family members to help her except for myself. I can't leave her alone with all her problems”.

    ·I have considered the applicant’s claims and noted the compassionate and compelling circumstances.

    ·However, I also note that the applicant has been granted two extensions of stay since last arrival amounting to approximately 18 months continuous stay onshore on consecutive Visitor visas for the same purpose of providing support and care to the daughter.

    ·I further note that no significant change in circumstance has there been since the last FA600 Visitor visa was granted to the applicant and the need for support from the applicant to the daughter is likely to be ongoing and long term.

    ·I must note that the visitor visa program is designed to allow tourists an opportunity to travel to Australia temporarily for the purposes of genuine tourist activities. It does not allow for clients to maintain ongoing residence in Australia on “rolling” visitor visas.

    ·When ongoing care or support is required, families must make other, more permanent arrangements, utilising services available in Australia.

    ·After having considered all factors, I am not satisfied that exceptional circumstances exist for the grant of further stay.

    ·Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.215 in Schedule 2 of the Migration Regulations.

12. On 5 November 2021 the applicant submitted a written submission and supporting documentation that outlined the following:

    ·The applicant is a 59 year old national of Lebanon. She arrived in Australia on the 5th of August 2018 as a holder of a FA600 Visitor visa which ceased on the 15th of October 2018. Since her arrival, she was granted two further onshore Visitor visas allowing her stay until the 5th of February 2020.

    ·On the 23rd of January 2020, the Applicant lodged the application for a Visitor visa currently processing before the Tribunal. She requested further stay of one year with genuine intention to remain in Australia temporarily to provide emotional and physical support to her Australian citizen daughter, Sarwat Sarah Hbous.

    ·On the 24th of February 2020, Siham’s application was refused as the deciding office was not satisfied that the Applicant meets the provisions of the Migration Regulations 1994, particularly clause 600.215 in the Schedule 2.

    ·The applicant is required to demonstrate exceptional circumstances.

    ·The applicant summarised the findings of the delegate.

    ·The applicant outlined her personal circumstances as a widow, mother of 4 children and 11 grandchildren. Some grandchildren reside in Lebanon. The applicant’s only family in Australia re her daughter  and one grandchild. The applicant has extensive family members overseas. The applicant is financially stable and owns property in Lebanon. The applicant speaks little English.

    ·Exceptional circumstances includes serious medical condition of a member of the visa Applicant’s close family in Australia circumstances where the visa Applicant is required to stay in Australia to provide assistance or support or a change in the Applicant’s circumstances (or the circumstances of an Australian resident) that could not have been anticipated at the time their visitor visa was granted and is beyond the visa Applicant’s control and where not granting a visa would cause significs hardship to an Australian resident or citizen.

    ·The Applicant’s request for further stay is based on exceptional circumstances surrounding the urgent need of physical and emotional support her Australian citizen daughter Sarwat requires in light of her current medical conditions. The applicant’s daughter currently suffers from shoulder pain (bursitis) and foot pain (plantar fasciitis).  In addition, the shoulder bursitis and back pain arising from two-disc bulges limit her abilities to perform household duties temporarily and she is unable to hold or lift her daughter until her condition improve. She is unable to help herself or her daughter with simple daily tasks such as going to the restroom or even tying her own hair. Furthermore, Sarwat also had surgery about 6 weeks ago which is taking longer than usual to heal in light of underlying health conditions. Following the surgery, she often feels sick when eating food and is in need to follow a special diet in the upcoming weeks. Given Sarwat’s ill health, she heavily relies on her mother for assistance in personal care such as showering, changing clothes and with household duties such as cooking and cleaning. The Applicant also provides full time care to her granddaughter Karima by feeding her, bathing her, changing her and putting her to bed.

    ·Because of harassment by her husband, threats of further violence, problems with accessing child-care, the applicant’s daughter has become increasingly reliant upon the emotional, psychological and practical support provided by the Applicant as had no other means of support. Hence, why the Applicant submitted her last tourist visa extension.

    ·The applicant submitted exceptional circumstances exist for the grant of further stay in light of the Sponsor’s current health condition as the lack of support would place her at severe hardship.

    ·The applicant provided to the Tribunal extensive detail as to her personal circumstances plus a number of lengthy and detailed medical counselling and health reports from GP’s counsellors, psychologists and counselling practitioners as well as reports from sexual assault referral centres. Read together these reports confirm the difficult challenges faced by the applicant’s daughter in Australia and the parlous state of her physical, emotional and mental well-being.

13. The Tribunal examined the applicant at length. She presented as an informed intelligent and caring mother whose primary concern was the ongoing health of her daughter. She repeatedly made the point her daughter was alone in Australia, had suffered enormously from abuse by her husband, was emotionally and mentally fraught, was having major difficulties in handling the stresses of motherhood as a single person without family assistance (except for the applicant)  on an ongoing basis. It is clear to the Tribunal that the applicant wishes to see her daughter recover, function again as an independent person and as soon as her daughter is recover depart Australia for her home country and extensive family living in Lebanon and get on “with her life”. The applicant made it clear she was a law abiding person and if the Tribunal rejected the application she would return to Lebanon as soon as practicable.

14. If the Tribunal should reject the application the applicant’s daughter would be left alone in Australia without employment or family support and totally dependant on Centrelink for some income. She would be totally reliant on institutional support for her safety, welfare, protection and physical and emotional recovery. This, of course would be an intolerable situation and undoubtedly would result in further harm to the applicant’s daughter over time. The applicant is self-sufficient and not in receipt of any government assistance. She is self -funded and self-supporting. The Tribunal is satisfied the only reason the applicant remains in Australia is to provide practical caring and emotional assistance  to her Australian citizen daughter.

15. The Tribunal is satisfied based upon the written submission, attached supporting documentation and the evidence from the applicant, the applicant’s daughter and the Migration Agent that exceptional circumstances exist in this review application. Those exceptional circumstances are based on the urgent need of physical and emotional support for her Australian citizen daughter Sarwat in light of her current medical conditions.

16. The Tribunal finds that the applicant’s intention to stay in Australia is on a temporary basis and that exceptional circumstances exist for the grant of further stay.

17. 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 600.215 are met.

    DECISION

18. 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 600.215 of Schedule 2 to the Regulations.

    Mark Bishop

    Member