2214722 (Migration)

[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 not established compelling and compassionate reasons for the grant of the visas. [The first applicant] applied for review of the decision on 6 October 2022 and the matter was constituted to the Tribunal on 11 April 2023. The delegate’s decision was given to the Tribunal by [the first applicant] with her review application.

3. In reaching its decision, pursuant to s.360(2)(a) of the Act, the Tribunal did not consider a hearing to be necessary as it was able to find in [the first applicant]’s favour on the basis of the material before it.

4. 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

5. [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

6. 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.

7. [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.

8. 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.

9. 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.

10. [In] January 2020, the family arrived back in Australia after their usual Christmas travel. [Mr A] travelled from [February] until [March] 2020 re-entering Australia on his Subclass 600 Visitor visa valid until 10 June 2020. Clearly, he then got caught in Australia by border lock downs associated with Covid-19 pandemic. On 29 May 2020, he was granted a BVA and he departed Australia [in] July 2020. He did not return to Australia until [March] 2023 when he arrived as the holder of a Visitor visa granted on 16 March 2023. He is currently onshore.

11. On [Date], [the second applicant] was born and he was granted a Subclass 580 in effect until 15 March 2022. On [Date], [Child 2] turned six years old, however she remained on her Subclass 580 Student Guardian visa until it ceased on 15 March 2022. On 1 February 2022, [the first applicant] lodged this application for a third Subclass 580 visa listing [Child 1] and [Child 2] as nominating students, both of whom made Student (Temporary) (Class TU) Subclass 500 (Student) visa applications to study in Australia. [Child 2] started primary school at [School 1] and [Child 1], who was just short of his [age] birthday, continued his junior secondary education at [High School 2]. Like [Child 1] and [Child 2] previously, [the second applicant] is included in [the first applicant]’s application as a member of her family under the age of six. On 2 February 2022, [the first applicant] and [the second applicant] were granted BVAs in relation to the application. They came into effect when the Subclass 580 ceased on 15 March 2022. [Child 1] and [Child 2] were granted BVAs on 7 February 2022 in relation to their student visa applications. They came into effect when their substantive visas ceased on 15 March 2022.

12. [Child 3] completed Year [grade] at [High School 2] in 2021 at age [age]. Originally, he was also included in [the first applicant]’s application as a nominating student, but he could not decide what he wanted to do after high school and, so, did not lodge a further student visa application before his Student visa ceased on 15 March 2022. Therefore, on 16 March 2022 he became an unlawful non-citizen. [Child 3] decided to obtain a Diploma in [Subject] from [Academy]. He lodged a Subclass 500 Student visa application on 3 May 2022 and was granted a Bridging Visa E (Class WE) Subclass 050 visa on 4 July 2022. He turned [age] years old on [Date] and departed Australia [in] July 2022. On 16 December 2022, [Child 3] was granted a Subclass 500 Student visa and returned to Australia [in] December 2022. He remains onshore. His Student visa is valid until 20 August 2024. Although [Child 3] has turned [age], he continues to live with his mother in Cairns and is supported by his father’s work for the family business in [Country 1].

13. Although [Mr A] did not return to Australia between 2020 and 2023, on 9 July 2022 [the first applicant] and the children were granted Bridging Visa B (Class WB) Subclass 020 visas (BVB) that allowed them to re-enter Australia and they travelled overseas in July, during a weekend in September, and for the family’s usual Christmas trip. The [A] family all returned to Australia [in] January 2023 and remain onshore as the holders of BVBs.

    Compelling and Compassionate Reasons

14. [The first applicant]’s visa application was made on 1 February 2022, despite the various references in the Department’s file to it being made anywhere from 2 February to 4 February 2022. In the application, the nominating students are [Child 1], who is currently [age] years old, and [Child 2], who is currently [age] years old. [Child 3] turned [age] on [Date], so, is no longer relevant to this visa application. [The second applicant] is the secondary applicant.

15. On 12 December 2021, both [Mr A and the first applicant] signed a Consent to Grant an Australia Visa to a child under the age of 18 years Form 1229 for all their children. They also signed Student Guardianship Arrangements 157N Form for both [Child 1] and [Child 2] nominating [the first applicant] as their student guardian.

16. All the criteria for the grant of a Subclass 590 (Student Guardian) visa must be met at the time of the decision. Clause 590.213 provides:

    590.213

    If any member of the family unit of the applicant has not turned 6:

    (a)  the applicant has established compelling and compassionate reasons for the grant of the visa; or

    (b)  the applicant satisfies the requirements of subclause 590.211(4).

    At the time of the delegate’s decision [the second applicant] was [Number] months old. The other [A] children were [age], [age], and [age] years of age, respectively.

17. In the application, [the first applicant] states she is a mother of four children from [Country 1] who has lived lawfully in Cairns for 10 years. She and the children are entirely supported by their family business, [Business name], run by [Mr A], who is a permanent resident of [Country 1]. The Tribunal notes that the business has successfully supported the family and the children’s Australia education since 2013. The application further states that [the first applicant and Mr A] want all their children to receive a quality education and that has been their only intention for moving her and the children to Australia. [The first applicant] included evidence that all her children appear to be doing extremely well in school.

18. On 21 April 2022, in response to a Department letter dated 25 March 2022 informing her that ‘exceptional reasons must exist’ to grant her the visa because [the second applicant] was under six, [the first applicant] explained that [the second applicant] is listed as an accompanying member of her family because he was only born on [Date]. At just [Number] months old it might, obviously, have been drawn from that submission that [the second applicant] was too young to be separated from his mother. She continued that she is the primary carer of her children, all of whom were under 18 years old. She reiterated that the sole reason she and her husband had decided that she should move to Australia with the children was to pursuit a quality education for the children. And that, after all, is the purpose of Australia’s student visa program. [The first applicant] had twice previous been granted Subclass 590 visas for her under six children. Presumably the submissions made in those cases were similar to those made in this application, so it is not unreasonable that she would have believed that she had provided sufficient information for the compelling and compassionate nature of the situation to be apparent.

19. The delegate found that there was ‘no evidence’ of compelling or compassionate reasons provided by [the first applicant] and so she was not satisfied that [the first applicant] had demonstrated compelling and compassionate reasons for the grant of a visa. Respectfully, the Tribunal disagrees. The application form does not contain explicit submissions in the relevant box, but it does have sufficient information, together with the Department’s own records, to make the [A] family’s circumstances clear. Further, despite what is implied in the delegate’s decision, on 21 April 2022 [the first applicant] did respond to the Department’s letter telling her ‘exceptional reasons must exist’ in which she clarified that at the time all her children were under 18 and she was their sole custodian while [Mr A] worked fulltime in [Country 1] at the family business that supported them all. (Although if the state of the file provided to the Tribunal is any indication, it is not surprising if the delegate missed the submission.)

20. Relevantly, the sole basis for the decision (which includes reference to a child ‘under six’ who is unrelated to [the first applicant] and born in [Year]) is the Department’s cl.590.213(a) policy:

    4.5.2. Family composition

    Dependent children under 6 years old

    Student Guardian visa applicants who have family unit members under 6 years old cannot satisfy clause 590.213 unless:

    ·it is a ‘bilateral benefit’ case (refer to Bilateral benefit cases - Student Guardian eligibility or

    ·the applicant demonstrates compelling and compassionate reasons for grant of the visa.

    Compelling and compassionate reasons

    Officers may accept that compassionate and compelling reasons exist if the primary Student Guardian visa applicant:

    ·usually provides support for the nominating student in relation to a medical condition; or

    ·is the sole parent (or custodian) of the nominating student, and

    ·is also required to care in Australia for their child/children under 6 years old

    Officers must carefully consider under GTE provisions, the intentions of a parent who plans to leave a child under 6 years old in their home country and accompany an older sibling to Australia. Officers should be satisfied that there are appropriate welfare arrangements in place for that other child in their home country – refer to Welfare arrangements for non-accompanying dependent children.

    Officers may seek evidence of the compelling and compassionate reasons in the form of custody documents, documentation of alternative welfare arrangements, medical certificates or letters from a medical practitioner.

    Officers considering other circumstances should first email the Student Visa Help Desk for advice.[1]

    It is the Tribunal’s considered opinion that the policy is considerably more constricting than the legislation allows. Even if it is not the intention to restrict the options to only the two circumstances listed, the authorities relating to ‘compelling’ and ‘compassionate’ make clear the considerations might be infinite depending on the whole of the applicant’s situation and are, in fact, entirely subjective.

    [1] Department of Home Affairs’ Procedural Instructions: [Sch2Visa590] Visa 590 - Student Guardian, Section 4.5 Other requirements (all cases).

21. Compelling and compassionate are not defined in the Act or Regulations. Generally, having regard to the ordinary meaning, compassionate means ‘having or showing compassion’, and compassion is ‘a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy’.[2] Whereas the dictionary defines compelling as ‘demanding attention or interest; convincing’[3] and may include ‘to urge irresistibly’ and to ‘bring about moral necessity’. For instance, in Singh v MIBP,[4] the Court commented that ‘compelling circumstances’ are limited to those which have a special or strong persuasive force.[5] Relying on earlier authorities, the Court held ‘compelling’ refers to circumstances ‘evoking interest, attention … in a powerfully irresistible way’, that ‘must be so powerful’,[6] or force or drive the Tribunal ‘irresistibly’ to be satisfied.[7] These authorities relate to other instances where compelling and compassionate are found in the Act and Regulations, but appear to apply equally to the reason for granting a visa. A common principle to be found is that the determination of whether something is compelling and/or compassionate is essentially one of subjective judgement[8] which takes into account all of the circumstances of the case.[9]

    [2] Macquarie Dictionary. Considered in Kaur v MIBP [2018] FCCA 1614 at [24].

    [3] Macquarie Dictionary.

    [4] [2016] FCA 156.

    [5] Singh v MIBP [2016] FCA 156 at [20].

    [6] Singh v MIBP [2016] FCA 156 at [21]-[22], citing Babicci v MIMIA [2004] FCA 1645 and Babicci v MIMIA (2005) 141 FCR 285.

    [7] Singh v MIBP [2016] FCA 156 at [23]-[24], citing Plaintiff M64/2015 v MIBP [2015] HCA 50.

    [8] Kandel v MIBP [2015] FCCA 2093 at [32]. cf.Sharma v MIBP [2015] FCCA 2669 at [47]: a subjective judgment may be explained simply by a bald statement of conclusion but engaging in an active intellectual process of considering evidence and giving reasons is required to avoid acting unreasonably. See also MIAC v SZLSP [2010] FCAFC 108 at [91]. Bi v MIBP [2017] FCCA 2652 at [37] distinguished Sharma v MIBP [2015] FCCA 2669 but did not consider if it was wrongly decided.

    [9] Anani v MIMAC [2013] FCCA 1140 at [34]. See McNamara v MIMIA [2004] FCA 1096 per Whitlam J at [10].

22. Setting aside that the Department granted the visas in the exact same circumstances twice previously, not to mention the Tribunal’s serious concerns that the wrong question was asked since their letter refers to ‘exceptional’ reasons being required when compelling and compassionate do not require any such thing, the compelling and compassionate reasons for granting the visas in this case are self-evident. They are clear in the material held by the Department, what was provided in the visa applications, and the family’s correspondence found on the file. In any event, [the first applicant]’s circumstances fit neatly into option two of the Department’s own policy in that she is the sole custodian of the nominating students and required to care in Australia for the child under six years old.

1. At the time of this decision [the second applicant] is [age] years of age. [The first applicant] is, and always has been, his only fulltime carer. The [A] household has a highly traditional composition with [Mr A] the sole breadwinner and [the first applicant] a stay-at-home mother. It would be inappropriate, and not in the best interests of the child, for [the second applicant] to be left in the sole care of his father in [Country 1] while his mother stayed in Australia as the student guardian of her other two minor children. Even the Department’s policy identifies as unsuitable and suspicious ‘the intentions of a parent who plans to leave a child under 6 years old in their home country and accompany an older sibling to Australia’. [Child 1], at [age], has only ever had schooling in Australia and is in the final preparations for his high school years. Stability in his living and educational situation will be essential to his wellbeing and success going forward. [Child 2] is just starting school and, at [age], is too young to be without her mother. The benefits of consistency in early education is uncontroversial so remaining in Australia with [the first applicant] is clearly in her best interests.

2. Both [Child 1] and [Child 2] clearly cannot be cared for by their father, who is employed fulltime in [Country 1] running a business that supports the family, and equally obviously are at ages and developmental stages where, for consistency and stability, they require their mother, who, as their stay-at-home mother, has always been their only fulltime custodian. Nothing before the Tribunal indicates that there are any reasons why they would not meet the requirements to study in Australia, where the [A] s claim the school sector is of higher quality and better repute than in [Country 1]. They have invested significant time and expense in their children’s education to give them the best opportunities in life. The Tribunal has real compassion for the lengths to which the family has observably had to go for the children to be able to live in Cairns for study and still have regular contact with their father who is required to work in [Country 1] so the family’s company can continue to support their education.

3. This family has functioned remarkably successfully in difficult circumstances for 10 years. From the school records provided with the applications it is evident there has been a genuine focus on the children’s education as is fitting for the holders of Class TU visas. The Tribunal is strongly persuaded, in fact feels a moral necessity, to give this family, who have done everything right, the opportunity to continue to provide [Child 1] and [Child 2] with a quality fundamental education in a safe, caring environment while not removing [the second applicant] from his mother as his primary carer.

4. The Tribunal finds that the [A] family’s circumstances raise both compelling and compassionate reasons for [the first applicant] and [the second applicant] to be granted Subclass 590 (Student Guardian) visas.

5. As a member of [the first applicant]’s family unit has not turned six, and she has established compelling and compassionate reasons for the grant of the visa, the Tribunal finds that [the first applicant] satisfies cl.590.213 of the Regulations.

6. The Tribunal also finds that [the second applicant] is a member of [the first applicant]’s family unit as defined in the Regulations for the purposes of cl.590.311 and has not turned six. He, therefore, meets cl.590.312 of the Regulations.

7. 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

8. 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 Hyland
   Member