Haider (Migration)

[2019] AATA 6022

Haider (Migration) [2019] AATA 6022 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Farzana Haider

CASE NUMBER:  1812510

HOME AFFAIRS REFERENCE:               BCC2018/1600898

MEMBER:Rosa Gagliardi

DATE:2 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2019 at 3:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – mother and daughter with temporary visas visiting son and family with permanent visas – exceptional circumstances required for grant of further temporary visas – applicant’s contribution to son’s household, including relationship with grandchildren – length of review process means applicant has already stayed longer than a further temporary visa would have allowed – decision under review affirmed

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 Immigration on 12 April 2018 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 10 April 2018. 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, which requires the visa applicant to satisfy the Minister that there are exceptional circumstances for the grant of a further Visitor visa.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 because he/she was not satisfied that there were exceptional circumstances that warranted the grant of a Visitor visa beyond 12 months.

5. On 2 August 2019 the Tribunal wrote to the applicant to an address (via her migration agent) provided to the Tribunal for the purposes of the review, inviting her and her daughter who is subject of a separate review, to attend a hearing scheduled for 16 September 2019, at 12.00pm (Vic time).  The hearing invitation noted that if the applicant did not attend the scheduled hearing, a decision may be made on the review without taking any further action to allow or enable her to appear before the Tribunal. 

6. The hearing invitation also listed information that the applicant might provide to the Tribunal to enable make its decision, as it had considered the material before it but was unable to make a favourable decision on this information alone.  The information was to have been provided to the Tribunal by 9 September 2019.  The Tribunal also notified the applicant that the request for an adjournment would be considered if she had very good reasons for being granted an adjournment.

7. On 11 September 2019 the applicant wrote to the Tribunal to provide a hearing response which indicated that the applicant would not be attending and that no one would be giving evidence.  To put the matter beyond doubt the Tribunal wrote to the applicant’s migration agent on 11 September 2019, stating, “I write in relation to Tribunal refs.: 1812510 and 1812513. I refer to the hearing responses submitted on 11 September 2019, in which you advised that your clients would not be attending the Tribunal hearings. Please advise if the applicants wish for the Member to proceed to make a decision on the papers, if they wish to withdraw their applications for review, or if they wish to attend a hearing”.

8. On 12 September 2019 the applicant’s migration agent confirmed that they required the Tribunal to make its decision in relation to the applicant and her daughter (case: 1812513) on the papers. 

9. The Tribunal acknowledges that the ability to proceed to decision is only a discretionary one, and that thought should be given to the use of such discretion fairly.  The Tribunal considers, however, that it is not for the Tribunal to make the applicant’s case for her.  In these circumstances, and pursuant to s.362 of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it, as it considers that it has taken all reasonable steps to engage with the applicant.  This is particularly so as the applicant was represented in relation to the review by her registered migration agent and has submitted a copy of the Departmental decision for the purposes of the review.

10. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    cl.600.215

11. Cl.600.215 requires that if the visa holder has held one or more Visitor visas then exceptional circumstances must exist for the grant of a further visa.

12. The applicant last entered Australia on 25 May 2017 on a FA600 visa valid for 12 months until 25 May 2018.  The applicant then requested a further stay until 9 April 2019 which would have resulted in the applicant staying in Australia for a total period exceeding 12 consecutive months.  As such the applicant was required to demonstrate that there were exceptional circumstances for the grant of this additional Visitor visa. 

13. At the time of application, the applicant argued she wanted to continue her stay in Australia until May 2019, as she wished to be with her son who had migrated to Australia in 2017. She also stated that she would love to “spend some good quality time” with her son and his family.  The Department considered that such circumstances were not exceptional and refused the visa.

14. On 24 August 2018 the applicant’s migration agent wrote to the Tribunal submitting:

    ….

    
    The Applicant is a widow and a citizen of Pakistan.  The applicant has three children, out of which;

    ·Mateen Imtiaz (‘The Son’) is a permanent resident of Australia (the sponsor)

    ·Saima Imtiaz (‘The Daughter’) is a citizen of Pakistan.

    The Daughter suffers from Down syndrome and is intellectually disabled.  The Applicant is the full time care giver for her Daughter.  Both the Applicant and the Daughter are currently in Australia visiting the Son.  The Daughter has lodged a separate application with the AAT seeking a review of her visa refusal….

    The Son migrated to Australia in January 2017.  The Son’s family (wife and children), the Applicant and the Daughter, all arrived in Australia on the 25^th May 2017.  The wife and the children on permanent visas, and the Applicant and the daughter on visit visas.  The intention of the Applicant was to help the Son to settle in Australia.  The applicant and the Son have always resided in the same residence even after the marriage of the Son.
    
    Once the Applicant arrived in Australia, the Son and his wife enrolled in university/college courses.  The Son is enrolled in a Masters’ Degree program at the University of Melbourne, and the wife is enrolled in a Diploma of Early Education and Care at Optimistic Futures College.

    The applicant’s and the Daughter’s initial visa ended on the 24^th May 2018, however, both the Applicant and the Son strongly feel that the Applicant’s presence has a positive effect on the Son’s children who are 10, 7 and 3 years old respectively.  The children are very attached to their grandmother and the applicant’s contribution in the household immensely helps the Son and his wife to complete their studies.  Especially the wife who’s intension (sic) is to get in to the Australian workforce.  The Son has also purchased a visitor visa health cover for both the Applicant and the Daughter. The Applicant and the Daughter do not intend to stay in Australia permanently and will depart Australia as per the visa conditions imposed on them.  The Applicant has also travelled in Europe and the Middle East, and has always complied with all visa conditions and regulations.

    The Son has also given a statutory declaration, in which he undertakes to ensure that the Applicant and the Daughter will comply with the visa conditions and will depart Australia before the expiry of their respective visas.

15. The Tribunal has carefully considered the reasons as to why the applicant and her daughter wish to remain in Australia beyond their initial 12 month stay on a Visitor visa but has difficulty from the information ascertaining what the exceptional circumstances for the grant of an additional Visitor visa are.

16. The applicant has stated that she wanted to spend quality time with her son and his family in Australia.  It appears from the migration agent’s submission that the applicant has wanted to stay in Australia to assist her son and his family settle in Australia, to support them in terms of studies and to generally assist the household.  It is also argued that the applicant’s presence also has a beneficial effect on her grandchildren as they have a close bond.  The sponsor has also been used to living with his mother even after he was married.

17. None of the intentions expressed by the applicant are inconsistent with the purpose of a Visitor visa.  Nonetheless, the Tribunal does note that the applicant has now already had the opportunity to assist her son’s family settle in, and that any further stay in Australia would seem redundant as by virtue of the length of the review process, the applicant has now stayed well beyond April 2019, and has in fact had the benefit of being in Australia (if the applicant is still in Australia), an additional 16 months.  The Tribunal notes that this is a particularly lengthy period and that the grant of a Visitor visa is predicated on a genuine intention by the applicant to stay temporarily in Australia for the purpose for which the visa is granted.  Such a lengthy stay, in the applicant’s circumstances, are not consistent with a genuine temporary stay. 

18. More relevantly, the issues put forward by the applicant and the migration agent, do not strike as ‘exceptional’ by any means.  Many applicants visit relatives in Australia and have an abiding desire to spend quality time with them but are required to return to their home country on cessation of their visitor visas, unless of course exceptional circumstances exist. 

19. On the basis of the evidence before it the Tribunal is not satisfied that the applicant meets the relevant criteria in cl.600.215 in Schedule 2 of the Migration Regulations as exceptional circumstances for the grant of the visa have not been made out by the applicant.

    DECISION

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

    Rosa Gagliardi
    Member