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

1. 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).

2. 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.

3. 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

4. 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

5. 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

6. Relevantly to this case, the criteria also include cl 600.215:

   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) a Subclass 417 (Working Holiday) visa;
   (c) a Subclass 462 (Work and Holiday) visa;
   (d) a bridging visa.

   BACKGROUND

7. The applicant is a [age] year old female from Algeria. Department records indicate she first arrived in Australia on [date] December 2017 as the holder of a subclass 600 visa. She was granted a bridging visa on 17 April 2018 and a second subclass 600 visa on 11 May 2018. She departed Australia on [date] December 2018. The applicant returned to Australia on [date] October 2019 as the holder of a subclass 600 visa which ceased on 7 October 2020.

8. She applied for the subclass 600 visa under review on 11 September 2020 seeking to remain in Australia until 10 September 2021.

9. In a section of the visa application form entitled “Further stay”, the applicant was provided with the following guidance:

   If the request for further stay will result in the applicant being authorised to stay in Australia for more than 12 months on certain visitor, working holiday and bridging visas, they must demonstrate that they have exceptional reasons for the further stay. Provide all details.

10. Beneath that guidance note, the applicant provided the following details in relation to their reason for further stay in Australia:

    Unable to travel on October due to COVID19. [The applicant] also helps her Daughter [Ms A] with the two children and help around the house.

11. Documents submitted in support of the application included a copy of the bio data page of the applicant’s Algerian passport (reference [deleted]) issued [in] 2015 and set to expire on [date] 2025.

12. The Department wrote to the applicant on 24 September 2020, 20 November 2020, 18 January 2021, 21 May 2021, 9 August 2021, 18 August 2021 and 15 November 2021, pursuant to s.56 of the Act requesting that she provide the Department with a National Police Certificate issued by the Australian Federal Police and a Police Clearance Certificate from each country where she has lived for a total of 12 months or more in the last 10 years within 28 days. She did not provide the Department with the requested Certificates or any evidence that she had attempted to obtain the Certificates.

    First delegate’s decision and Tribunal decision

13. On 21 December 2021, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.213(1) because she did not meet the requirements of Public Interest Criterion (PIC) 4001.

14. The applicant lodged an application for review of the first delegate’s decision with the Tribunal, differently constituted and referred to as the First Tribunal, on 22 December 2021.

15. The applicant provided the First Tribunal with copies of a National Police Certificate [dated] 17 January 2022 issued by the Australian Federal Police and a Penal Record, dated 23 March 2022, from the Judge in charge of the Penal Record Office, Ministry of Justice, Algeria.  On this basis, the First Tribunal found that the requirements in PIC 4001(a) were met.

16. 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

17. 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

18. 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.

19. The applicant was invited to appear before the Tribunal on 10 January 2023 to give evidence and present arguments.

20. 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. 

21. 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.

22. 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.  

23. Each of these issues are addressed below.

    Clause 600.215

    Would 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?

24. 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?

25. The legislation does not define exceptional circumstances. The Tribunal is not aware of any specific relevant court authority on the meaning of “exceptional circumstances” in the context of cl 600.215. However, the meaning of exceptional circumstances has been considered in the context of other visa criteria.

26. In An v Minister for Immigration and Citizenship [2007] FCAFC 97 the majority of the Full Federal Court (per Emmett and Lindgren JJ) held that the word “exceptional” in the context of cl 856.213 in Part 856 of Schedule 2 to the Regulations is a simple, non-technical phrase and should be understood as meaning unusual or atypical.

27. The meaning of “exceptional circumstances” in the context of section 137L of the Act was considered by Walters FM in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918. In particular, the court referred with approval to the following comments of Jacobson J in Oreb v Wilcox (2004) FCA 1520:

    The terms "exceptional circumstances" or "special circumstances" are gateways to the exercise of a discretion and are to be found in many statutes. They have been said to be elastic instructions and that all that is contemplated is for there to be something unusual or different to take the matter out of the ordinary (see Boscolo v Secretary, Department of Social Security[1999] FCA 106; (1999) 90 FCR 531 at 535-6).

28. Walters FM also referred to the following statements of Kiefel J in Hatcher v Cohn [2004] FCA 1548:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances……The words “exceptional circumstances” may apply to a variety of circumstances, and no definition which limits their application, should be adopted, unless the limitation appears from the relevant statutory provision.

29. Department policy guides decision-makers to recognise exceptional circumstances according to their ordinary dictionary meaning which may include:

    ·     an unanticipated change in an applicant's circumstances (or the circumstances of an Australian citizen or permanent resident) that are beyond the applicant's control and are extraordinary; or

    ·     if an applicant is required to stay in Australia to provide assistance or support due to the death, serious illness or serious medical condition of a member of the applicant's close family in Australia.

30. The online Macquarie Dictionary[1] specifies the following definition for the word “exceptional”:

    adjective 1.  forming an exception or unusual instance; unusual; extraordinary.

    2.  extraordinarily good, as of a performance or product.

    3.  extraordinarily skilled, talented, or clever.

    –exceptionally, adverb
    

    [1] Macquarie Dictionary (online) – (accessed 29 November 2022)

    –exceptionalness, noun

31. Department policy also provides the following guidance in relation to expectations concerning the requirement for, and nature of, evidence to demonstrate exceptional circumstances in any given case: 

    Applicants are to provide supporting evidence of exceptional circumstances, for example documentary evidence from a medical practitioner outlining details of the family member's serious medical condition as well as the circumstances requiring the applicant to provide assistance.

32. At hearing, the Tribunal explained relevant aspects of the legislative framework and how the Tribunal was required to assess whether exceptional circumstances existed.  The applicant and [Mr B] gave credible and compelling evidence in relation to the applicant’s circumstances that resulted in her having to remain in Australia. 

33. The applicant and [Mr B] gave evidence that she first came to Australia to visit her daughter, [Ms A], who had experienced difficulties conceiving a child after having had two miscarriages.  She arrived in Australia on [date] December 2017 and, after being granted a further subclass 600 visa, was authorised to stay until [date] December 2018.  During that first stay in Australia, [Ms A]’s first child, [Miss C], was born on [date].  The applicant assisted with the care and support of [Miss C] before she departed on Australia on [date] December 2018. During that first visit, the applicant also undertook tourist activities, including visits to the Blue Mountains, Sydney Harbour sites and Brisbane where she met members of her son-in-law’s family who lived there. The Tribunal notes that the applicant did not stay beyond the period of stay authorised.

34. The applicant and [Mr B] also gave evidence that she returned to Australia on [date] October 2019 to again visit her daughter, [Ms A].  During that visit, [Ms A] became pregnant with her second child.  The child, [Master D], was born on [date].  During this second visit, the onset of the COVID-19 pandemic affected the applicant’s ability to return to Algeria and she therefore sought to remain for a further period whilst also assisting her daughter with the care of the two children, [Miss C] and [Master D].

35. While it was accepted by the applicant at hearing that the pandemic no longer affected her ability or willingness to return to Algeria, she did insist that she had to remain in Australia to assist with the care and support of her daughter’s Australian children, particularly since the birth of her daughter’s third child, [Miss E].  The Tribunal pressed the applicant and [Mr B] further in relation to the nature and extent of the care and support provided by the applicant in this regard, particularly since no information had been provided to the Department or the Tribunal about [Miss E]’s existence.

36. [Mr B] stated that his daughter [Miss E] was born on [date]. Further oral evidence at hearing made it readily apparent to the Tribunal that [Miss E] has experienced difficulties with her health soon after her birth and these have had a significant impact upon [Miss E] and her immediate family, particularly the applicant’s daughter and son-in-law who have relied heavily upon the applicant to assist.

37. At hearing, the Tribunal was provided with a copy of a medical report from Dr [F] following a consultation with [Miss E] on 27 May 2022 ([Dr F]’s report).  [Dr F]’s report reads in part as follows:

    [Miss E] was seen for a review in the Spinal Cord Injury and Disease Clinic today only a few days after her discharge from a very long admission to our hospital and in follow up from our inpatient involvement. Today's visit was also an opportunity to be introduced to the therapists of the Paediatric Spinal Outreach Service (PSOS), our community multidisciplinary team. For the purposes of our file, I will summarise [Miss E]’s past medical history.

    [Miss E] was a healthy [age] girl when she was admitted acutely on 3 June 2021 to our hospital with symptoms suggestive of acute bronchiolitis. She required to be admitted for escalation in respiratory support and was found to have RSV (respiratory syncytial virus) and adenovirus bronchiolitis. However, a chest x-ray done at the time also showed an changes suspective of large posterior mediastinal mass which subsequently led to a diagnosis of neuroblastoma associated with spinal cord compression. To manage her bronchiolitis and her respiratory distress, she required to be intubated and mechanically ventilated from 6 July 2021 and, in view of her prolonged respiratory support needs, she progressed to a tracheostomy on 13 August 2021. She was gradually weaned off of the ventilator, progressed to BiPAP and decannulated on 12 April 2022. She subsequently was discharged on CPAP (10 cmH2O) during sleep but could be taken off when awake.

    With regards to her mediastinal mass, which was found to be a stage 4 intermediate risk non-MYCN amplified neuroblastoma, she required chemotherapy and neurosurgical intervention. She received six cycles of chemotherapy as per the ANBL0531 protocol with her last cycle in November 2021. She received debulking of the epidural tumour via a T1-T7 decompressive laminectomy on 6 July 2021. On progress MRI scanning of her spinal cord has she been found to have spinal cord atrophy with myelomalacia extending from the T2 to T6 levels without ongoing mechanical compression following her neurosurgical intervention. Resultant from her spinal cord injury, she developed significant lower limb weakness (flaccid paraplegia).

    Following her extensive laminectomy, she was also found to be at risk of progressive kyphoscoliosis over the levels of T2-T6 for which she was managed with a CTLSO (cervical thoracolumbosacral orthosis/Visar) spinal brace.

    During [Miss E]’s prolonged admission, she was already reviewed in our [clinic] jointly with Dr  [Dr G], Spinal Orthopaedic Surgeon, in follow up from her inpatient review in November 2021 in the context of her kyphoscoliosis. As [Miss E] continued to slowly develop more upper and lower limbs skills, it was found to be safe at that time to not be in her CTLSO Visar brace when asleep at night or during the day or during well-controlled other activities, such as hydrotherapy and mealtimes, in a well-supported chair and position. At the time, we had explained to her family that in children with acquired spinal cord injuries, recovery of the spinal cord tissues can still take place two to three years after initial treatment (decompressive surgery) and that recovery of function may still occur throughout growth and development. As such, over that period, it would be very important to protect her spinal cord and the nerves and, as such, a well-supportive brace to prevent kyphosis and stretch on the spinal cord and nerves in an erect position would be important. Obviously, throughout her growth and development with sequential x-rays every six months and joint reviews with Dr [Dr G] in our clinic will we be following up on both her recovery but also the need for this quite extensive bracing.

    As mentioned, today’s review was a review with the Paediatric Spinal Outreach Service, [a] multidisciplinary team made up of a physiotherapist, occupational therapist, clinical nurse consultant, and social worker who support families of children and young people with acquired or traumatic spinal cord injuries in the community in collaboration with the medical teams in the hospital that [Miss E] is linked in with. [Miss E] had only just been discharged to home on 23 May 2022 (four days prior to our review in the clinic) and it was good to hear that her family were managing her cares well, including her feeding difficulties. Her feeding difficulties are mostly related to her oral aversion and something that is not uncommon for children who have had a prolonged stay in the ICU on a mechanical ventilator. Last night on Thursday, 26 May 2022, however, [Miss E] became slightly congested and vomited and, as such, her family had reduced the volumes of her bolus feeds from 200 mL to 150 mL but they had not increased the frequency to compensate for the loss in total daily volume. They will liaise with the dietitian in regards to this, however. She also is practising oral feeding using a straw. It was good to hear that she did not have a fever but she was a little bit grunty. She was also slightly fighting her CPAP tolerating 4 cmH20 okay, rather than the 10 cmH20 that she is meant to be managed on. Her family already had liaised with the clinical nurse consultant in the Respiratory [Team].

    [Miss E]’s two older siblings were very excited that their younger sibling was finally home. They are currently at daycare. With regards to the cares at home with three young children and [Mr B] often away for work, it was good to hear that [Ms A] still has her mother staying in Australia on a bridging visa. Being from a different cultural background, [Miss E]’s grandmother has been very keen to massage [Miss E]’s lower limbs and we explained to [Mr B] that in view of [Miss E]’s very likely loss of protective sensation, there may be some risks involved when being massaged, especially if it is for prolonged periods of time. She could either develop some skin breakdowns but she may also be at risk of non-pathological fractures due to bone fragility. Some of the stiffness in her lower limbs is spasticity where massage may not necessarily ameliorate her abnormal tone. In view of her different, and likely reduced, circulation as a result of her paraplegia, it is also important to make sure that her legs are well covered to prevent chilblains over the winter and to avoid large temperature changes, such as when coming indoors after having been outside in a cold environment and not going directly in front of a heater.

    With regards to community therapy, [Miss E] had not been linked in with a speech and language therapist yet and her family are looking into finding Let's Eat! Feeding Therapy but they have already been linked in with [a] [Physiotherapist]. [Miss E] is on a wait list to see a dietitian in the community.

    Earlier in July 2022, [Miss E] had a number of baseline investigations as per the surveillance guidelines for children with acquired spinal cord injuries, including a baseline DEXA scan. This demonstrated low values for her lower limbs as expected with the femoral necks’ Z-scores for weight at -2.6 which obviously places her at risk for non-pathological fractures.

    A repeat renal ultrasound was also completed on 5 May 2022 which demonstrated a mild/moderately filled bladder with a volume of 34 mL (expected maximum bladder capacity for her age would be 60-90 mL) with no evidence of upper tract changes or debris to either suggest increased bladder pressures or incomplete emptying. A repeat renal ultrasound will be done in approximately one year.

    [Miss E]’s discharge from the hospital was delayed as a result of her high care needs as well as the issues related to the family housing situation and her family have been looking for alternate housing through Social Housing and private rental subsidies. The social worker with PSOS will continue to support her family in finding more appropriate accommodation where her family do not have to go upstairs to bedrooms or bathrooms with [Miss E] and all of her equipment.

    [Miss E] was not extensively examined with regards to her functional abilities today as she had only just been discharged from the hospital and she was somewhat unwell.

    CONCLUSION AND RECOMMENDATIONS

    [Miss E] is a delightful now [age] girl only recently discharged home after a nine-month period in the hospital for management of a stage 4 neuroblastoma which led to mechanical compression of her spinal cord resulting in myelomalacia from T2-T6 with flaccid paraplegia and thus far no evidence of a neurogenic bladder or bowel. Resultant from her laminectomy to manage her neuroblastoma, she also has significant kyphoscoliosis for which she is managed in a CTLSO Visar brace which she requires when upright in unsupported positions or activities.
    1. With regards to [Miss E]'s respiratory needs, she is still being weaned off of the supports and currently on CPAP (10 cmH20) when asleep.
    2. With regards to multidisciplinary therapy to help promote [Miss E]’s development in the context of an acquired spinal cord injury, she has been linked in with the multidisciplinary therapy [team].
    3. With regards to a review in the Spinal Cord Injury and Disease Clinic, we would recommend a review every three to four months to follow up on her neurological recovery and her skills attainment. Please contact the secretary [to] make this appointment.
    4. [Miss E]’s community therapists will be supported by the Multidisciplinary PSOS [team].
    5. With regards to orthopaedic spinal reviews, [Miss E] will have a review with Dr  [Dr G], Spinal Orthopaedic Surgeon, later this afternoon in view of her CTLSO fit and she will subsequently then be due to see him again in approximately six months, which we will try and coordinate with a review in our clinic.
    6. With regards to surveillance, a repeat renal ultrasound, a hip ultrasound, and a DEXA scan will be required in approximately one year.
    7. With regards to ongoing supports in regards to finding suitable housing, [name], Long-Term Ventilation Unit Coordinator, and [name], Occupational Therapist, will also be supporting [Miss E]’s family and with a home visit lined up for early-July 2022, they will see how to manage in their current situation.
    8. The Paediatric Spinal Outreach Service will also organise for a home visit to meet with the rest of her family and with [Miss E] when she is in, hopefully, better health.

1. The applicant has been heavily involved in [Miss E]’s care and rehabilitation, whilst also providing support to the  [family] in Australia by caring for her daughter, son-in-law, [Miss C] and [Master D].  At hearing, the applicant and [Mr B] explained that her care for [Miss E] includes waking the child in the morning, bathing her, feeding her, changing her nappies, massaging her legs and engaging with her in order to teach her some language and assist her with forming emotional attachments.  [Mr B] described how the applicant has been integral in motivating [Miss E] to eat and does this by entertaining her while feeding.  She has also been helpful in terms of being another person in the home that can operate [Miss E]’s CPAP machine (which supports her breathing), fit her brace (which enables her to sit with appropriate spinal support and thereby mitigate against further injury or harm) and operate [Miss E]’s cough assistance and suction machine (which supports her breathing).  The applicant has also been helpful in terms of preparing appropriate foods for [Miss E] to eat, including purees and more recently solids, as well as looking after [Miss C] and [Master D] while [Miss E]’s parents take [Miss E] to a range of numerous medical and allied health appointments.

2. Taking into account the circumstances faced by the  [family], particularly the compelling and credible evidence given by the applicant and [Mr B] at hearing along with [Dr F]’s report, the Tribunal finds that exceptional circumstances exist in this case.

3. For the above reasons the Tribunal is satisfied that exceptional circumstances exist for the grant of the visa, and finds that the requirements of cl 600.215 are met.

   Clause 600.211

4. The second issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to 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; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

5. In the present case, the visa applicant seeks the visa for the purpose of visiting her daughter, son-in-law and their children. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

6. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).  As noted above, the applicant has always remained lawfully in Australia whilst holding a substantive or bridging visa.  There is no evidence before the Tribunal which suggests that the applicant has not complied substantially with the conditions of her last substantive visa held or her subsequent bridging visa.

7. The Tribunal must also consider whether the applicant intends to comply with the conditions to which the subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are:

   ·     the following conditions which must be imposed:

   o   8101 – must not work in Australia

   o   8201 – must not engage in study or training in Australia for more than 3 months

   ·     the following conditions which may be imposed:

   o   8501 – must maintain adequate health insurance

   o   8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

   o   8558 – must not stay in Australia for more than 12 months in any period of 18 months.

8. There is no evidence that the applicant has ever worked in Australia and, given the ongoing financial and housing support provided by her daughter and son-in-law in Australia, the Tribunal finds that the applicant will comply with condition 8101.  Furthermore, given the applicant’s interest and commitment towards supporting her grandchildren, along with her age and lack of English language proficiency, the Tribunal finds that the applicant will also comply with condition 8201.  There is also no evidence to suggest that the applicant would breach any of the other discretionary conditions if imposed.

9. The Tribunal has also had regard to any other relevant matter when considering whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted (cl 600.211(c)). In considering other relevant matters, the Tribunal considered the applicant’s migration history, proposed further length of stay in Australia and personal circumstances.

10. As noted above, the applicant has previously visited Australia and, in circumstances significantly dissimilar to those she experienced during her most recent stay in Australia, she managed to depart Australia within the period of stay that had been authorised by the Department. 

11. Of relevance to this case is the fact that during the applicant’s most recent stay in Australia, matters beyond her control emerged which required her to remain in Australia longer than she had anticipated before her arrival.  While the emergence of the pandemic initially limited her ability to return to Algeria, the emerging need to remain onshore to care for [Miss E] and her family in Australia has resulted in the applicant seeking to remain onshore for a further period.  Oral and written evidence was provided to the Tribunal at hearing that in December 2022, a ticket was purchased for the applicant [to] depart Sydney on [date] February 2023 and arrive in Algeria (via Doha) on [date] April 2023.  When asked at hearing why the applicant chose to return to Algeria on this date, especially given that [Miss E]’s significant care needs appear to be ongoing, the applicant and her son-in-law stated that while she has been of great assistance to the family in Australia during her visit, it is time for her to return home as she misses her daughter [and] other grandchildren who reside in Algeria. She also has a home in Algeria which is only 100 meters down the road from her daughter[’s] residence and she seeks to return to Algeria as she has missed out on many significant family events whilst she has resided in Australia over the past few years.  In particular, the applicant’s brother and sister have died during this period and the applicant also seeks to return to Algeria in order to pay her respects at their graves and reconnect with other surviving family members.     

12. At hearing, the Tribunal queried whether the applicant might wish to return to Australia at a later point in time.  The applicant and [Mr B] indicated that this would be likely and that another visa application might be lodged at a future point in time after that applicant had spent some time back in Algeria.  [Mr B] particularly noted that the applicant might wish to visit at a future point in time to visit her daughter and grandchildren and, depending upon the circumstances which existed at that time, might once again offer support and care to [Miss E] and the family during such a visit.  [Mr B] implored the Tribunal to look favourably upon the applicant’s situation as she had simply remained in Australia beyond the period she had initially intended because she wished to support her daughter and her grandchildren given the difficult circumstances that arose in mid-2021 after [Miss E]’s birth. 

13. Having considered all the evidence, and having weighed the circumstances (including those which would encourage the applicant to return to Algeria and those which would encourage the applicant to remain in Australia), the Tribunal is satisfied that the applicant intends to stay temporarily in Australia for the purpose of the visa.  In making this finding, the Tribunal notes that the oral and documentary evidence provided at the hearing that the applicant’s proposed temporary stay is now scheduled to end on [date] February 2023 and it remains open to the delegate to permit the applicant to remain in Australia for a specific period or until a specific date (cl 600.511).

14. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are met.

    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; and

    ·cl 600.211 of Schedule 2 to the Regulations.

    Peter Papadopoulos
    Member