Sharma (Migration)

[2019] AATA 5389

Sharma (Migration) [2019] AATA 5389 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pawan Sharma

CASE NUMBER:  1815267

DIBP REFERENCE(S):  BCC2018/1952529

MEMBER:Ian Garnham

DATE:29 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The tribunal affirms the decision under review.

Statement made on 29 August 2019 at 12:09pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – onshore for more than 12 consecutive months – combination of visitor and bridging visas – exceptional circumstances – passing of the review applicant’s son – 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 7 May 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 May 2018. The Departmental (DOHA) delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215.

3. The review applicant, who is also the visa applicant, appeared before the tribunal on 5 August 2019, to give evidence and present arguments.  The review applicant’s daughter-in-law, Kulwinder Kaur also provided evidence to the tribunal.

4. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The review applicant was represented in relation to the review and the representative attended the tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The primary issue is whether exceptional circumstances apply in this case whereby it is appropriate to grant the subclass 600 Visitor visa, even though the visa applicant, has held specific visas for a period of more than 12 consecutive months.

8. More than one year ago, the delegate was not satisfied that exceptional circumstances existed whereby the visa should be granted.

9. Clause 600.215 applies to these circumstances.  It states;

   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) Subclass 417 - Working Holiday visa;

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

   (d)  a bridging visa. 

10. It is not in dispute that the visa applicant last came to Australia on 26/09/2016 on a subclass 600 Tourist visa that ceased to have effect on 26/03/2017.  She was granted a further subclass 600 Tourist visa on 27/04/2017 that ceased to have effect on 24/08/2017.  On 24/08/2017 she was granted a further subclass 600 Tourist visa that ceased to have effect on 28/02/2018.  Finally, on 05/03/2018 the review applicant was granted a further subclass 600 Tourist visa that ceased to have effect on 05/05/2018.  The review applicant left Australia on 10/02/2019 and returned on 15/02/2019 while on a subclass 020 Bridging B visa.

11. In the intervening periods, and since the 4^th and final Visitor visa (described above) ceased to have effect, the review applicant has been on Bridging visas.  This means that since 26/09/2016 the review applicant has been authorised to stay in Australia on either a visitor visa or a bridging visa.  This is a period, now in excess of 47 months, which is clearly in excess of the 12 month period provided for by subclause 600.215(2).        

12. Therefore, it is necessary for the tribunal to consider the claimed exceptional circumstances of the parties and determine whether those circumstances justify the granting of a further subclass 600 visitor visa to the review applicant.

    Putative exceptional circumstances affecting the parties:

13. At the hearing the review applicant’s daughter-in-law said that she married the review applicant’s son in August 2000 and that she came to Australia as a student with the review applicant’s son as her spouse in 2008.  They have two children now 18 and 13 years old.  Both children grew up in India and came to Australia in July 2014 on visitor visas.  All three are now on subclass 186 Employer Nomination Scheme permanent resident visas.  I have noted that the review applicant was first granted a visitor visa in December 2010 and prior to the history set out above; she came to Australia four times for varying periods on 3 different visitor visas, in the period; December 2010 to March 2016, prior to the history set out in paragraph 10 above.   

14. With the original application, lodged in May 2018, that is the subject of this review, the review applicant said:

    My son passed away & it was very traumatising to me and my daughter in law and grandchildren.  My daughter in law needs to work full time to support herself n (sic) her children, hence I wish to stay with them at this stage for some more time & take care of my grandchildren when daughter in law is at work.

15. I note that, due to the backlog of applications before this tribunal, the review applicant has been authorised to stay in Australia for a further 15 months since the application was lodged.  I also acknowledge the passing of the review applicant’s son in July 2017[1].  I also acknowledge the provision with the visa application of submissions from a Youth and Family Worker[2] and a Psychologist[3].  The submissions request, respectively, further time for the family to adjust following the review applicant’s son’s death and, for the review applicant to undergo treatment and counselling for depression due to her son’s death.  I note that significant time has now passed since these submissions were made.    

    [1] At F: 14 (DOHA)

    [2] At F: 13 and dated 03/05/2018 (DOHA)

    [3] At F: 15 and dated 22/02/2018 (DOHA)

16. At the hearing the review applicant provided extensive medical information dating back to August 2016.[4]  The most recent summary of her medical conditions is given by her Cardiologist and states that her diagnoses are hypertension, diabetes, hyperlipidaemia and coronary artery disease[5].

    [4] At FF: 16-72 (AAT)

    [5] At F: 52&53 and dated 5 July 2019 (AAT)

17. While the review applicant submitted that her daughter-in-law and grandchildren still require her assistance, it seems that her welfare needs have now become the primary issue in her seeking to remain in Australia.  The review applicant said that she needs to remain in Australia for her medical treatment and that she has no-one and nowhere to go if she is required to return to India.  When I inquired about the review applicant’s overseas travel for approximately 5 weeks in January of this year, she said she travelled to India to conduct rituals associated with her son’s death.  The review applicant also said that people came to talk to her and that she slept at friend’s places.  The review applicant also said that if her son was still alive he would have made arrangements for her to live in India but as she now has no family there she cannot do so.

18. It is evident that the exceptional circumstances on which the review applicant seeks to rely are now more associated with her welfare rather than that of her permanent resident daughter-in-law and grandchildren.  In any event, by the review applicant’s actions and direct evidence to the tribunal she no longer seeks temporary residence in Australia.  In her own words, the review applicant; …wants to stay with her grandchildren and now wants to stay in Australia forever.

19. While I am sympathetic to the claimed exceptional circumstances of the review applicant I note that she has been authorised to stay in Australia on temporary visas for almost 4 years and it is over 2 years since the passing of her son.  As such I am not satisfied that the review applicant’s putative exceptional circumstances justify the granting of a 5^th and further subclass 600 visitor visa.   

    Further matters for consideration:

20. At the hearing, the review applicant’s representative submitted that if the review applicant is required to leave Australia the review applicant’s daughter-in-law and grandchildren will suffer.  He further stated that it is not possible for the review applicant to apply for a remaining relative visa or any other visa category.  This being the case the review applicant could protract this matter by appealing this or other decisions to prevent the review applicant from being required to leave Australia.  He claimed he runs an ethical practice and would not recommend this course of action to the review applicant. 

21. Therefore the representative requested that the tribunal recommend that the Minister substitute a more favourable decision for the review applicant in this case, pursuant to section 351 of the Act. 

22. In my consideration of whether the tribunal should make a recommendation that the Minister consider intervention in this case, I have noted that all of the information presented to the tribunal, for this review relates solely to the welfare of the review applicant and her claimed circumstances.  No current independent information has been provided with respect to the welfare of her daughter-in-law and grandchildren.

23. It remains open to the review applicant to independently apply to the Minister for intervention, upon the presentation of appropriate, current and relevant information.    

    DECISION

24. The tribunal affirms the decision under review.

    Ian Garnham
    Member