2206309 (Migration) - [2023] AATA 530

2206309 (Migration) [2023] AATA 530 (11 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2206309
MEMBER:Peter Papadopoulos
DATE:11 January 2023
PLACE OF DECISION: Sydney
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 600.211 of Schedule 2 to the Regulations; and
·cl 600.215 of Schedule 2 to the Regulations.

Statement made on 11 January 2023 at 10:23am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – the visa applicant genuinely intends to stay temporarily in Australia – positive migration history –stay in Australia for more than 12 consecutive months – exceptional circumstances –medical conditions –applicant satisfies public interest criterion 4001 – police clearance documents provided – strong incentives to depart Australia – interest and commitment towards supporting her grandchildren – decision under review remitted

LEGISLATION
Migration Act 1958, ss 56, 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.213, 600.215

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Hatcher v Cohn [2004] FCA 1548
Oreb v Wilcox (2004) FCA 1520
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918
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
INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 April 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 11 September 2020. 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.
The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Clause 600.213
The criteria include cl 600.213(1):
600.213
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4020 and 4021.
Clause 600.211
The criteria also include cl 600.211:
600.211
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and
(c)  any other relevant matter.
Clause 600.215
Relevantly to this case, the criteria also include cl 600.215:
600.215

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2206309 (Migration)

Details

AGLC: 2206309 (Migration) [2023] AATA 530
Case: [2023] AATA 530
Decision Date: 11 January 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a Visitor (Class FA) visa, subclass 600 (Tourist stream). The applicant had previously been granted a visa, but a subsequent delegate refused to grant a further visa on the basis that the applicant did not genuinely intend to stay temporarily in Australia. The applicant sought review of this decision by the Tribunal, which had previously remitted the application with a direction that the applicant met public interest criterion 4001. This was the second occasion the Tribunal considered the applicant's case.

The Tribunal was required to determine two key issues. Firstly, whether the grant of the visa would result in the applicant being authorised to remain in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances existed to justify such a grant. Secondly, the Tribunal had to assess whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was sought, as required by clause 600.211 of the Regulations.

In relation to the first issue, the Tribunal found that the applicant had been in Australia for more than 12 consecutive months, having arrived in October 2019 and not departed since, holding a subclass 600 visa and a bridging visa. Therefore, the grant of the current visa would indeed result in a total period of stay exceeding 12 consecutive months. The Tribunal then considered whether exceptional circumstances existed, noting the applicant's positive migration history, strong incentives to depart Australia, and her interest in supporting her grandchildren. The Tribunal also considered the applicant's medical conditions.

The Tribunal ultimately remitted the application for reconsideration, directing that the applicant met public interest criterion 4001. The decision indicates that the Tribunal was satisfied that the applicant genuinely intended to stay temporarily in Australia, despite the extended period of stay, and that exceptional circumstances existed for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 15 April 2022, the First Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:·PIC 4001(a) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations. Second delegate’s decision No further evidence was submitted to the Department and on 20 April 2022, a delegate refused to grant the visa on the basis that the applicant did not meet cl 600.211 because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia.Application for review On 29 April 2022, the applicant applied to the Tribunal for review of the second delegate’s decision to refuse to grant the visitor visa. This is the second occasion upon which the Tribunal has been requested to consider this applicant’s case. The applicant was invited to appear before the Tribunal on 10 January 2023 to give evidence and present arguments. On 21 December 2022, the Tribunal also wrote to the applicant about the relevance of cl 600.215 to their application. In particular, the Tribunal outlined the applicant’s migration history and provided guidance as to the meaning of exceptional circumstances in the context of the regulation. The applicant appeared before the Tribunal on 10 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son-in-law, [Mr B] . The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The issues to be determined in this case are twofold:· whether cl 600.215 is met, which requires the Tribunal to determine whether the grant of the visitor visa will result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances exist for the grant of the visa. · whether cl 600.211 is met, which requires the Tribunal to determine whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Each of these issues are addressed below.Clause 600.215Would the grant of the visa result in the applicant being authorised to stay in Australia as the holder of one or more prescribed visas for a total period of more than 12 consecutive months? Department records indicate that the applicant most recently arrived in Australia on [date] October 2019 and has not left since. She has therefore been in Australia for more than 12 consecutive months. Since arriving in Australia she has held a subclass 600 visa and a bridging visa. Both of these visas are prescribed in cl 600.215. The Tribunal finds that the grant of the subclass 600 visa to the applicant would result in the applicant being authorised to stay in Australia as the holder of one or more of the visas prescribed in cl 600.215 for a total period of more than 12 consecutive months.Do exceptional circumstances exist for the grant of the visa?

Ratio Decidendi

Legal Principle Established

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