Boutros (Migration)

[2020] AATA 5992

Boutros (Migration) [2020] AATA 5992 (16 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mona Boutros

CASE NUMBER:  1935009

HOME AFFAIRS REFERENCE(S):         BCC2019/5799595

MEMBER:Linda Holub

DATE:16 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2020 at 11:08 am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – more than 12 consecutive months – no exceptional circumstances–decision under review affirmed

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 23 November 2019 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 16 November 2019. 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 (the Regulations). Relevantly to this case, they include cl.600.215, that exceptional circumstances exist for the grant of the visa.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 because the delegate was not satisfied that exceptional circumstances exist for the grant of the visa based on the claims and evidence put forward by the applicant.

5. The review applicant appeared before the Tribunal on 16 November 2020 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

BACKGROUND

1. The applicant was born in April 1961. She is a Lebanese national. She is married and has three adult children in Lebanon and one who lives in Australia. She has four brothers-in-law and one sister-in-law who also reside here.

2. The Department’s Decision Record states that the applicant arrived in Australia on 17 November 2018 as the holder of a FA-600 (Visitor-Tourist) visa which ceased on 17 February 2019. A further onshore FA-600 Visitor visa was granted to the applicant allowing her to stay until 17 November 2019. On 16 November 2019 the applicant lodged an application for a FA600 Visitor - Tourist Stream visa via the internet. The applicant requested a further stay for up to three months until 15 February 2020 which would result in her staying in Australia for a total period exceeding 12 consecutive months. The applicant has remained in Australia continuously since her last arrival on 17 November 2018. She is currently a holder of a Bridging A visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

10.  The issue in this case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that exceptional circumstances exist which would justify the grant of a visa for a visa applicant to be granted a visa following a total period of more than 12 consecutive months in Australia.

11.  In her application for the further extension the applicant submitted that she would like to spend more time with her family including her son and Uncle over the Christmas and New Year. Her uncle has been unwell. In her application the applicant also stated that she applied to renew her passport and required a three-month extension so her passport could be ready. She wrote that she is financially supported in Australia by her family members. She takes turns living with her uncle and her son in Australia and they support her.

Evidence provided by the applicant

12. The applicant provided the Department with:

a.a copy of her son’s bank statement for the period 8 to 15 November 2019.

b.a letter from her uncle’s doctor dated 6 November 2019 outlining the conditions he has and procedures he underwent in 1995 and 2009. It also refers to eye surgery he had in late October 2019 and states that he needs to be escorted to appointments with doctors and assisted with daily living tasks. It states that his prognosis is still guarded.

13. Prior to the hearing the applicant provided the Tribunal with a copy of the letter referred to above dated 6 November 2019, and:

a.a letter from the applicant’s uncle’s retina specialist dated 14 February 2020 describing his surgery at the end of October 2019 and states that he will be closely monitored.

b.a submission dated 2 November 2020. It refers to the reasons for the Department’s refusal. It refers to her uncle’s dependency on her when she lodged the application. She states that she has every intention to return to return to home country. She refers to her husband and her children in Lebanon and states that she has no intention to overstay her visa. She states that her only problem now is that she is facing the problem of permission to travel because of coronavirus.

14. At hearing, the Tribunal referred to the applicant’s submission that her only concern is travelling because of the Covid-19 pandemic and asked her to explain her specific concerns. She responded that there are many cases in Lebanon. The Tribunal acknowledged this to be case and also acknowledged that getting a flight at this time is not straightforward and also that there are additional costs involved. She responded in the affirmative. The Tribunal also noted that these considerations apply to everyone that needs to depart Australia. She again responded in the affirmative. The Tribunal pointed that that she had not made claims that she is in high risk category.

15. The Tribunal asked the applicant if she wished to add anything further. She responded that her uncle invited her to come to Australia because he needed to have surgery. She stayed to help him because they spoke the same language. The Tribunal referred to her application which indicated that she had applied for the visa extension until February 2020 and asked her why she did not leave Australia at that time. The applicant stated that her uncle had two operations in one eye, and he was not feeling well for a long time.

16. The Tribunal again noted that the applicant had made no claims that she particularly prone to Covid-19 and that her evidence indicated that her uncle had improved. She responded that she has high blood pressure and dizziness. She stated that she has been taking blood pressure medication for 25 years. When asked if she is immune compromised, she again referred to the fact that she has high blood pressure and dizziness.

17. The Tribunal explained that it will take that into consideration and noted that its understanding is that the Department is taking account of the difficulties for visa holders in arranging departure flights.

Findings

18.  The Tribunal is of the view that the applicant provided evidence in an open and straightforward manner. The Tribunal accepts the applicant’s uncle had eye surgery in October 2019 and she wished to assist him during his recovery.

19.  The Tribunal accepts that Lebanon has a large number of Covid-19 cases. However, the applicant did not claim that she is particularly vulnerable because of her health, despite the fact she has high blood pressure and dizziness. The applicant did not provide evidence of any health condition that would make her particularly vulnerable. The applicant did not make out grounds that exceptional circumstances exist for her continued stay because of her heath, her uncle’s condition or for any other reason.

20.  For the above reasons the Tribunal is not satisfied that the applicant has put forward exceptional circumstances that would justify the grant of a visa for a total period of more than 12 consecutive months. The Tribunal therefore finds that the requirements of cl.600.215 are not met.

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

Linda Holub
Member