Musheer (Migration)

[2017] AATA 623

Musheer (Migration) [2017] AATA 623 (24 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Humaira Musheer

CASE NUMBER:  1703224

DIBP REFERENCE(S):  BCC2017/440729

MEMBER:Margie Bourke

DATE:24 April 2017

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 24 April 2017 at 12:40pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor)(Class FA) – Tourist stream – Exceptional circumstances – Stay in Australia exceeding 12 consecutive months – Age and widowed status – Culturally not acceptable to live alone – Commitment to family – Son expecting permanent residency

LEGISLATION

Migration Act 1958

, s 65

Migration Regulations 1994

, Schedule 2, cl 600.215(1)

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 8 February 2017 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 2 February 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(1), which requires that if subclause (2) applies, exceptional circumstances must exist for the grant of the visa; and (2) applies where the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of (a) one or more visitor visas, for a total period of more than twelve consecutive months.

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 there were exceptional circumstances for the visitor visa to be granted.

5. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.  The tribunal is satisfied that the applicant is applying for a visitor visa and an extended stay until 12 February 2018 which would result in the applicant being authorised to remain in Australia beyond twelve consecutive months. 

8. The tribunal accepts the applicant’s husband is deceased, and she resided with her son in Karachi Pakistan, and never resided on her own. The tribunal accepts the applicant has three children.  One daughter is married and lives in America.  Her second daughter who is married and is an Australian citizen and lives in Canberra, Australia.  Her son lives in Australia and is married with one child, and this son is expecting to be granted permanent residency in Australia in September or October 2017.

9. Based on the evidence before it, the tribunal accepts that the applicant intends in the future to apply for a subclass 143 visa to reside in Australia with her son. The tribunal accepts the applicant understands she will not meet the criteria until her son is granted Australian permanent resident status. The tribunal accepts the applicant is aware that there will be delays in processing and there is no entitlement to the visa. The tribunal is satisfied that the applicant accepts she will have to return to Karachi or America before that application and process is completed.

10. The tribunal has considered the evidence before it.  The tribunal accepts the applicant has rented out her home in Karachi. The tribunal accepts when the applicant returns to Karachi she will reside with her sister and then her brother for about a month, and then live in a guest house. The tribunal is satisfied the applicant is frightened to live alone.   The applicant submitted in writing and in the hearing that in Karachi she is particularly frightened on her own because of the law and order situation. She states it is “impossible” for her to live alone. The tribunal is satisfied the applicant is frightened to live alone partly because she has always resided with her husband or her son, and partly because culturally it is difficult for a single woman in Pakistan society to reside alone; combined these two facts are overwhelming for the applicant.

11. The tribunal accepts the applicant resided with her daughter in America for as long as possible. The tribunal accepts the applicant took her daughter’s advice “not to be a burden” to her son, who at that time had migrated to Australia. The tribunal accepts the applicant’s son has lived in Australia with his wife and child for more than one year. The tribunal also accepts the evidence of the applicant’s son that he will support his mother and she will stay with him if the extension to the visa is granted.

12. The tribunal has considered the evidence and is satisfied that when considered collectively, the applicant’s fear of living alone, her commitment to her family, and her family’s commitment to her and the age and widowed status of the applicant amount to exceptional circumstances for the grant of the visa.

13. The tribunal is satisfied that the grant of the visa would result in the applicant being authorised to remain in Australia as the holder of one or more visitor visas for a total period of more than 12 consecutive months.  The tribunal is satisfied that exceptional circumstances exist for the grant of the visa, and therefore the applicant meets the requirements of cl.600.215.

14. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

15. 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.

    Margie Bourke
    Member