2214722 (Migration)

Case [2023] AATA 1956

2214722 (Migration) [2023] AATA 1956 (14 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Josephine Sataro-Webb

CASE NUMBER:  2214722

MEMBER:Mireya Hyland

DATE:14 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the following criteria for a Subclass 590 visa are met:

·the first named applicant meets cl.590.213 of Schedule 2 to the Regulations; and

·the second named applicant meets cl.590.312 of Schedule 2 to the Regulations.

Statement made on 14 April 2023 at 5:35pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 580 (Student Guardian) –first applicant mother of school-aged children and second applicant child under 6 – compelling and compassionate reasons for grant of visa – second applicant born in Australia – long residence and sibling’s education supported by father in home country – mother sole carer with regular visits by father – previous visas granted when siblings under 6 – ‘compelling’ and ‘compassionate’ not legislatively defined and need to take into account applicants’ circumstances – departmental policy more restrictive than legislation allows – department’s decision referred to ‘exceptional’ circumstances – consistency and stability for older siblings and genuine focus on education – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 590.213, 590.312

CASES
Anani v MIMAC [2013] FCCA 1140
Bi v MIBP [2017] FCCA 2652
Kandel v MIBP [2015] FCCA 2093
Kaur v MIBP [2018] FCCA 1614
McNamara v MIMIA [2004] FCA 1096
Sharma v MIBP [2015] FCCA 2669
Singh v MIBP [2016] FCA 156

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 Home Affairs to refuse to grant the applicants, [the first applicant] and her son, [the second applicant], Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

  2. [The first applicant] applied for the visas on 1 February 2022. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). [The first applicant] applied for the visa to be the guardian of her children, nominating students [Child 1] and [Child 2]. [The second applicant] applied for the visa as a member of [the first applicant]’s family unit who is under the age of six. Neither claim to meet the criteria for a Subclass 500 (Student) visa. The criteria for a Subclass 590 (Student Guardian) visa are set out in Part 590 of Schedule 2 to the Migration Regulations1994 (the Regulations). The delegate refused to grant the visas on 16 September 2022 on the basis that cl.590.213 was not met because [the second applicant] had not turned six years of age and [the first applicant] had…

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Details
AGLC
2214722 (Migration) [2023] AATA 1956
Case
[2023] AATA 1956
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the first applicant, the mother of school-aged children, and the second applicant, her child under six, against a decision concerning their Student (Temporary) (Class TU) visa applications, specifically for a Subclass 580 (Student Guardian) visa. The core of the dispute revolved around whether compelling and compassionate reasons existed for the grant of the visas, considering the family's circumstances, including the second applicant's birth in Australia, the older siblings' education in Australia supported by the father's business in their home country, and the mother's role as the sole carer. The case was heard by Mireya Hyland.

The legal issues before the court were whether the circumstances presented constituted "compelling" and "compassionate" reasons for the grant of the visa, and whether the decision-making process adequately considered these factors. The court was required to determine if the departmental policy, which appeared to impose a more restrictive interpretation than the legislation allowed, had unduly influenced the decision. Furthermore, the court considered whether the decision had been made without a full hearing of the necessary evidence and arguments.

The court reasoned that the terms "compelling" and "compassionate" are not legislatively defined and must be assessed in light of the applicants' specific circumstances. It found that the departmental policy, which referred to "exceptional" circumstances, might be more restrictive than the legislation permits. The court noted the importance of consistency and stability for the older siblings' education and the genuine focus on their schooling. Crucially, the court concluded that the decision had been made without a necessary hearing. Consequently, the court remitted the applications for reconsideration by the Minister, directing that certain criteria for the Subclass 590 visa were met.

Orders

Orders of the court

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Background

Background to the litigation

[The first applicant] was born on [Date] and is [Age] years of age. She is a citizen of [Country 1]. [In] 2001, she married [Mr A], born [Date], who is a citizen of [Country 2]. Their usual place of residence is [Country 1] where [Mr A] runs the family’s business, [Business name]. There are four children of the marriage: [Child 3] born [Date], [Child 1] born [Date], [Child 2] born [Date], and [the second applicant] born [Date]. [The first applicant] is their primary carer and [Mr A] is the sole financial support for the family.Background Although members of the family travelled to Australia for short periods before 2012 (in particularly [Mr A], sometimes with the infant [Child 1]), [Mr A and the first applicant], together with their then [Age] year old and [Age] year old sons, first arrived in Australia together [in] June 2012 as the holders of Tourist (Class TR) Subclass 676 visas. They departed [in] July 2012 and then made short visits to Australia as a family in October 2012, over Christmas that year, and between [Date] and [Date] February 2013. On 28 February 2013, [Child 3] was granted a Student (Temporary) (Class TU) Subclass 571 Schools Sector visa to attend elementary school in Australia. [The first applicant] and [Child 1] were granted Student (Temporary) (Class TU) Subclass 580 Student Guardian visas as [Child 3]’s guardian and a member of her family unit who was under the age of six. [The first applicant] and the boys arrived in Australia on [date] March 2013, followed by [Mr A] as the holder of a Tourist visa on [date] March 2013, and the family settled in Cairns, Queensland. [Mr A] departed Australia on [date] March 2013 then visited often for short periods throughout 2013 and 2014, either on his Tourist visa or, from October 2013, a Visitor (Class FA) Subclass 600 visa. The average flight time between Cairns to [Country 1] is [time] and it is clear from the Department’s records that he was engaging in regular travel between his work in [Country 1] and the family in Australia. [The first applicant] travelled overseas with [Child 3] and [Child 1] at intervals that appear to correspond with school holidays, except for 10 days in July 2014 when she travelled alone in the middle of one of [Mr A]’s visits. In 2015 the family’s travel patterns changed. [The first applicant] and the children regularly travelled outside Australia for short periods, sometimes only a few days or a weekend, while [Mr A] did not enter Australia between [September] 2014 and [October] 2015. It appears the family was required to reverse its routine for some reason and meet outside Australia instead. [In] October 2015, when [the first applicant] was [deleted] [Mr A] returned to Australia with the family and only spent 10 days at a time outside Australia until [Child 2] was born on [Date]. [The first applicant] and the children remained in Australia until [March] 2016, possibly while their visa status was being settled. On [Date], [Child 1] turned six years old although he remained on the Subclass 580 Student Guardian visa which was not due to cease until 11 January 2016. On 10 December 2015, the family made further Student (Temporary) (Class TU) applications and were granted Bridging A (Class WA) Subclass 010 visas (BVA) that came into effect when their substantive visas ceased. [Child 2] was granted a BVA when she was born on [Date] although her mother still held a Subclass 580 until 11 January 2016. On 10 March 2016, [Child 3] and [Child 1] were granted Subclass 571 Schools Sector visas to study in Australia. [The first applicant] was granted a further Subclass 580 visa as their guardian, as was [Child 2] as a member of her family unit under the age of six. They travelled outside Australia during what appears to be school holidays, while [Mr A] returned to visiting the family in Australia at least once a month from 2016 until 2020 and the Covid-19 pandemic.

Evidence

Evidence Before The Court

The issue in this case is whether there are compelling and compassionate reasons for the grant of the visas. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE [The first applicant] was born on [Date] and is [Age] years of age. She is a citizen of [Country 1]. [In] 2001, she married [Mr A], born [Date], who is a citizen of [Country 2]. Their usual place of residence is [Country 1] where [Mr A] runs the family’s business, [Business name]. There are four children of the marriage: [Child 3] born [Date], [Child 1] born [Date], [Child 2] born [Date], and [the second applicant] born [Date]. [The first applicant] is their primary carer and [Mr A] is the sole financial support for the family.Background Although members of the family travelled to Australia for short periods before 2012 (in particularly [Mr A], sometimes with the infant [Child 1]), [Mr A and the first applicant], together with their then [Age] year old and [Age] year old sons, first arrived in Australia together [in] June 2012 as the holders of Tourist (Class TR) Subclass 676 visas. They departed [in] July 2012 and then made short visits to Australia as a family in October 2012, over Christmas that year, and between [Date] and [Date] February 2013. On 28 February 2013, [Child 3] was granted a Student (Temporary) (Class TU) Subclass 571 Schools Sector visa to attend elementary school in Australia. [The first applicant] and [Child 1] were granted Student (Temporary) (Class TU) Subclass 580 Student Guardian visas as [Child 3]’s guardian and a member of her family unit who was under the age of six. [The first applicant] and the boys arrived in Australia on [date] March 2013, followed by [Mr A] as the holder of a Tourist visa on [date] March 2013, and the family settled in Cairns, Queensland. [Mr A] departed Australia on [date] March 2013 then visited often for short periods throughout 2013 and 2014, either on his Tourist visa or, from October 2013, a Visitor (Class FA) Subclass 600 visa. The average flight time between Cairns to [Country 1] is [time] and it is clear from the Department’s records that he was engaging in regular travel between his work in [Country 1] and the family in Australia. [The first applicant] travelled overseas with [Child 3] and [Child 1] at intervals that appear to correspond with school holidays, except for 10 days in July 2014 when she travelled alone in the middle of one of [Mr A]’s visits. In 2015 the family’s travel patterns changed. [The first applicant] and the children regularly travelled outside Australia for short periods, sometimes only a few days or a weekend, while [Mr A] did not enter Australia between [September] 2014 and [October] 2015. It appears the family was required to reverse its routine for some reason and meet outside Australia instead. [In] October 2015, when [the first applicant] was [deleted] [Mr A] returned to Australia with the family and only spent 10 days at a time outside Australia until [Child 2] was born on [Date]. [The first applicant] and the children remained in Australia until [March] 2016, possibly while their visa status was being settled.

Decision

Reasons for decision

Given the above findings, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for Subclass 590 (Student Guardian) visas.DECISION The Tribunal remits the applications for reconsideration, with the direction that the following criteria for a Subclass 590 visa are met:·the first named applicant meets cl.590.213 of Schedule 2 to the Regulations; and·the second named applicant meets cl.590.312 of Schedule 2 to the Regulations.Mireya HylandMember

Ratio Decidendi

Legal Principle Established

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