2309589 (Migration)

[2024] AATA 3877

2309589 (Migration) [2024] AATA 3877 (21 August 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Mr Mohit Thakur (MARN: 2217979)

CASE NUMBER:  2309589

MEMBER:  Margie Bourke

DATE:  21 August 2024

PLACE OF DECISION:  Melbourne

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.600.215 of Schedule 2 to the Regulations.

Statement made on 21 August 2024 at 12:16pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant to provide support for grandchild – provides emotional and practical support for all members of the family – support the applicant provides amounts to exceptional circumstances – exceptional circumstances exist – decision under review remitted

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 Home Affairs on 15 June 2023 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 27 April 2023. 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). Relevantly to this case, they include cl.600.215, which requires that exceptional circumstances exist for the grant of the visa if the grant of the visa would result in the applicant being authorised to stay in Australia for a total period of more than 12 consecutive months, in circumstances where the visa applicant is the holder of one or more visitor visas, a Subclass 417 or Subclass 462 visa or abridging visa.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 because the applicant applied for the further 12 months stay of her visitor visa on the basis of ‘family circumstances’ and did not demonstrate exceptional circumstances exist for the grant of the visa.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The Tribunal had regard to the circumstances of the review applicant and the nature of the review. The Tribunal had regard to the fact the review applicant resided in Western Australia and the review was constituted to a member in the Melbourne registry. The Tribunal was of the view that the conduct of the hearing by video would allow the applicant to give evidence present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The review did not involve an extensive amount of documents to be put to the applicant during the course of the hearing. For all these reasons the Tribunal determined this was an appropriate matter to be conducted by way of video hearing.

6. The applicant appeared before the Tribunal on 21 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, who attended the hearing by video with the applicant. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages. The interpreter attended the hearing by video.

7. The applicant was represented in relation to the review. The representative did not attend the hearing.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the requirements of cl.600.215. Cl.600.215(1) requires that if subclause (2) applies, exceptional circumstances must exist for the grant of the visa. Cl.600.215(2) states 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 (Temporary) visa; (d) abridging visa.

2. The applicant provided the Tribunal with a copy of the Department’s decision record dated 15 June 2023. Based on the information provided in submissions provided by the applicant’s representative, and information provided by the applicant with the application for the visa and the application for review of the Department’s decision, all of which is consistent with information in the Department’s decision record dated 15 June 2023, I am satisfied that the applicant arrived in Australia on [date] March 2020 as the holder of a visitor visa and has remained in Australia lawfully either as the holder of subclass 600 visitor visas or bridging visas since that date.

3. I am satisfied that the applicant applied for the visitor visa which is the subject of this review on 27 April 2023. The application was lodged online and requested a further stay of up to 12 months until 27 April 2024. The applicant recorded the reason for further stay as family circumstances.

4. The applicant and her son are aware that if this matter is remitted back to the Department, the grant of a visitor visa for a further stay of 12 months from the time of application may have expired before the current time.

5. I am satisfied that the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of a visitor visa for a total period of more than 12 consecutive months. I am therefore satisfied that cl.600.215(2) applies in the circumstances of this review.

6. The applicant provided the Tribunal with a collection of medical reports and assessments in relation to her grandson obtained over a period of years, the most recent of which is dated 14 August 2024. The applicant provided a statement from her son, in relation to the support provided by his mother, the applicant. The applicant’s son also gave evidence in the hearing.

7. I am satisfied that the review applicant has been in Australia residing with her son and his wife to provide support for their child who was born in [year] and has been diagnosed with [Medical condition 1] and was also diagnosed with [Medical condition 2] in 2017. I am satisfied that the child has been clinically assessed and has treatment and supervision from paediatricians, clinical psychologists and speech pathologists to assist with his development, social skills and behaviour, and other health professionals to assist with his medical needs. I am satisfied the child has a clinical history of [the condition] and increasing distress. I am satisfied that in 2024 his demeanour and behaviour is impacted [severely], to the extent that he has self harmed and become aggressive to family and staff. I am satisfied that he has had recent hospital admissions and medical investigations.

8. I am satisfied that the review applicant’s son and his wife have a second child born in [year], and the two children cannot be in close proximity to each other for their own safety. I am satisfied that the presence of the applicant in the family gives the children’s mother the opportunity to have a break, provides consistent and loving support to her older grandchild, and provides emotional and practical support for all members of the family. I am satisfied

that the support the applicant provides to her son, her daughter-in-law and her two grandsons, particularly her grandson born in [year], amounts to exceptional circumstances.

1. I am satisfied that exceptional circumstances exist for the grant of the visa, and the applicant meets the requirements of cl.600.215(1).

2. For the above reasons I am therefore satisfied that the applicant meets the requirements of cl.600.215.

DECISION

1. 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.

   Margie Bourke Senior Member