Zaidan (Migration)

[2018] AATA 812

Zaidan (Migration) [2018] AATA 812 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Moussa Zaidan

CASE NUMBER:  1711509

DIBP REFERENCE(S):  BCC2017/1669139

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 2:20pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Seeking a visa extension – Family tragedy – Wishes to spend more time with daughter and grandchildren – No significant hardship to an Australian resident

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 11 May 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 10 May 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 visa 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 visa applicant did not meet cl.600.215 because she was not satisfied that exceptional circumstances exist for the grant of the visa. On 1 June 2017, the visa 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. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) 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 visa 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 visa applicant arrived in Australia on 12 May 2016 as the holder of a subclass 600 Visitor visa that was valid until 12 June 2016. He then applied for and was granted another subclass 600 Visitor visa on 9 June 2016 which was valid until 22 February 2017. On 22 February 2017, he was granted a third subclass 600 Visitor visa that was valid until 10 May 2017. On 10 May 2017, he applied for this visa and was granted a Bridging visa on 11 May 2017. He resided in Australia continuously from the time of his arrival here on 12 May 2016 until 30 June 2017.

9. The visa applicant applied for this subclass 600 Visitor visa on 10 May 2017 and requested a further stay in Australia until 10 September 2017. This would result in his staying in Australia for a total period of more than 12 consecutive months. In his visa application, he stated that the reason for the extension is that he wants to “spend extra time with my daughter family and siblings. Son [died].” 

10. During the hearing, the Tribunal discussed with the visa applicant whether there are exceptional circumstances for the grant of the visa. He stated that he had two sons who lived in Lebanon and a daughter who lived in Australia. He stated that his eldest son worked in [a certain industry] and died on [date]. He stated that he suffered depression as a result of his son’s death and could not attend his funeral. He stated that he has other health problems including [health problems deleted]. He has not provided the Tribunal with any medical or psychological evidence in relation to his health.  

11. The applicant gave evidence that his wife and second son are in Lebanon. He stated that he and his wife came to Australia to visit their daughter after she had a baby. He stated that he became ill and was depressed and could not return to Lebanon when his wife did. He stated that he wanted to stay here and help his daughter. The Tribunal noted that he sought an extension of his Visitor visa to stay here until 10 September 2017 and that date has now expired. When asked why he wants to stay here longer, he responded that he wants to be near his daughter and to help her. He stated that her children are attached to him. He stated that he would like to stay here for another 6 months and clear his head.

12. In considering whether the visa 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.

13. In this case, the visa applicant’s son died in [Lebanon]. His wife and second son are living in Lebanon. When the Tribunal asked him whether it would not assist him to be with his wife in Lebanon as she was also likely to be grieving the loss of their son, he responded that her family is supporting her. He stated that he speaks to her every day. The Tribunal accepts that he and his daughter may have provided each other with support following the death of his son. The Tribunal accepts that he became ill after the death of his son. However, there is no medical or psychological evidence before the Tribunal in relation to his current state of health.

14. The Tribunal accepts that the visa applicant would like to stay in Australia longer and to support his daughter. The Tribunal accepts that his daughter’s children are attached to him. However, there is no evidence before the Tribunal to indicate that, not granting the visa, would cause significant hardship to an Australian resident or citizen.

15. Having considered all the evidence, the Tribunal is not satisfied that there are exceptional circumstances for the grant of this visa. Whilst the Tribunal is sympathetic towards the applicant and the grief he must feel for the loss of his son, it is not satisfied that he satisfies the requirements for this visa. Therefore, the Tribunal finds that the requirements of cl.600.215 are not met.

    DECISION

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

    Linda Symons
    Member