Amirghan (Migration)

[2018] AATA 447

Amirghan (Migration) [2018] AATA 447 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jaklin Amirghan

CASE NUMBER:  1714547

DIBP REFERENCE(S):  BCC2017/2109217

MEMBER:Linda Symons

DATE:27 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 27 February 2018 at 5:52pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Request for a visa extension – Total period of more than 12 consecutive months – No exceptional circumstances – Close relationship with her granddaughter – Want to live in Australia permanently

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration on 16 June 2017 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 June 2017. 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.600.215, which requires the applicant to satisfy the Minister that exceptional circumstances exist for the grant of the visa.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215 because he was not satisfied that exceptional circumstances exist for the grant of the visa. On 7 July 2017, the applicant applied to the Tribunal for a review of this decision.

5. The applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments. Her hearing was conducted as a joint hearing with her husband’s application for review with the consent of both applicants. The Tribunal also received oral evidence from her husband, Aram Amirghan, and her granddaughter, Lerna Evanian. The Tribunal hearing was conducted with the assistance of an interpreter in the Armenian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. The issue in this case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that exceptional circumstances exist for the grant of the visa if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more Visitor visas or subclass 417 (Working Holiday) visas or subclass 462 (Work and Holiday) visas or a Bridging visa for a total period of more than 12 consecutive months:

8. In the present case, the applicant arrived in Australia on 23 June 2016 as the holder of a subclass 601 (Electronic travel Authority) visa that was valid until 23 September 2016. She subsequently applied for and was granted a subclass 600 Visitor visa on 14 September 2016 that was valid until 20 June 2017. She has resided in Australia continuously since her last arrival here on 23 June 2016.

9. The applicant applied for this subclass 600 Visitor visa on 14 June 2017 and requested a further stay in Australia until 20 June 2017. In her visa application, she stated that the reason for the extension is that she wants to attend the graduation of her grandchildren, Aram and Arianna, in March.  It would therefore appear that there was a typographical error in the date and the extension is sought until 20 June 2018 and not 20 June 2017. This would result in her staying in Australia for a total period of more than 12 consecutive months.

10. The applicant has caused to be given to the Department a letter dated 19 June 2017 from Mr Julian Leeser, Federal Member for Berowra. The letter indicates that she is seeking an extension of her Visitor visa for six months as she has two grandchildren who are graduating in December. December 2017 has now expired. This date of December is not consistent with the graduation date in the visa application.

11. During the hearing, the Tribunal asked the applicant’s husband when the graduation is taking place. He responded that he has three grandchildren and two great grandchildren and there are lots of graduations. He stated that there is one in March and another a little later. When asked which of his grandchildren is graduating, he responded that his great grandchild Christopher is involved in lots of extracurricular activities including playing sports and the piano. He stated that his granddaughter’s husband travels for work and his granddaughter cannot manage on her own. He stated that he and his wife are here to help her. When asked how much longer he would like to stay here, he responded 1 year.

12. The applicant gave evidence that her son has started a job and they are here to help him. When the Tribunal noted that it appeared that they wanted to live in Australia permanently, she responded that they have lived in Los Angeles for 47 years and have a social life there. She stated that they do not know how much longer they will be around and want to spend time with their family. She stated that she would like to stay in Australia for another year and help her granddaughter.

13. The Tribunal asked the applicant why she considered these circumstances to be exceptional circumstances for the grant of the visas. She responded that she and her husband have brought up their granddaughter, are close to her and want to morally support her. She stated that they want to spend time with their great grandchildren.

14. The Tribunal discussed with the applicant’s husband whether there are exceptional circumstances for the grant of the visas. He responded that it would be difficult to travel to the USA and then return to Australia. He stated that it would also be a financial burden.

15. The applicant’s granddaughter, Lerna Evanian, gave evidence that she has been married for 11 years. She stated that she travelled to the USA to visit her grandparents once a year but it is difficult with two children. She stated that her grandparents came to Australia and are helping them. She stated that it is unusual for children to have great grandparents and that it is a special relationship for them. She stated that her son Christopher loves his great grandmother. She stated that they have been a great help to her. She stated that she would appreciate it if they are able to stay in Australia for another year.

16. The applicant has caused to be given to the Department a letter dated 19 June 2017 from Mr Julian Leeser, Federal Member for Berowra. Enclosed with the letter is correspondence he received from Mr Hovig Evanian, the husband of Ms Lerna Evanian. In his letter, Mr Evanian stated “I need a solution to allow the grandparents to stay in Australia. As I understand it, a short extension can be granted to their tourist visa but this does not allow enough time for Talin and Norary to be settled Australian residents which enables them to apply for the grandparents under a Parent visa”.

17. The Tribunal put this information to the applicant and raised the issue that it appeared that she did not intend staying in Australia temporarily and was seeking to use a Visitor visa to establish residence in Australia. She responded that she has lots of friends in the USA but does not have family there. She stated that she has lived in the USA for 47 years and drives there. She stated that she does not drive in Australia. She stated that they wanted to live in Australia for 1 more year and then return to the USA. She stated “who knows what will happen in 1 year?”

18. When the same issue was raised with the applicant’s husband, he responded that he has lived in Los Angeles for 47 years and has a good social life there. He stated that he is receiving a pension from the USA. He stated that he has medical insurance. He stated that he drives in Australia but only for short distances. He stated that he wants to see his grandchildren and support them.

19. In considering whether the applicant’s circumstances are exceptional, the Tribunal has had regard to the policy guidelines in PAM GenGuide H – Visitor visas, as the Act does not define exceptional circumstances.  It states that exceptional circumstances may include:

    ·the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support

    ·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 significant hardship to an Australian   resident or citizen.

20. The circumstances of the applicant do not satisfy this threshold. The Tribunal accepts that she has a close relationship with her granddaughter and would like to stay in Australia and support her in the care of her family. The Tribunal accepts that she would also like to attend the graduations of her grandchildren and great grandchildren as and when they arise. The letter from Mr Lesser indicates that her two grandchildren were graduating in December 2017. That date has now passed. In her visa application, she stated that the graduation is in March. When her husband was asked when the graduation ceremony is to take place, he did not provide a date and his response was vague. The Tribunal has not been provided with any documentary evidence in relation to when the graduation is to take place.

21. The Tribunal accepts that, in view of her age, it would be difficult for the applicant to undertake the journey from Los Angeles to Australia to visit her family and that it also involves a financial cost. The Tribunal has not been provided with any medical evidence in relation to her state of health or her husband’s state of health. Despite her denial, the Tribunal has concerns that she is seeking to use this Visitor visa to establish residence in Australia and has no intention of visiting temporarily. Whilst the Tribunal has some sympathy for the applicant’s circumstances, they do not constitute exceptional circumstances.

22. Having considered all the evidence, the Tribunal is not satisfied that there are exceptional circumstances for the grant of this visa. Therefore, the Tribunal finds that the requirements of cl.600.215 are not met.

23. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Linda Symons
    Member