2310893 (Migration)

[2023] AATA 3816

2310893 (Migration) [2023] AATA 3816 (16 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2310893

MEMBER:Margie Bourke

DATE:16 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 16 October 2023 at 2:51pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – combined stay in Australia for over 12 months – exceptional circumstances – impact of the COVID19 pandemic – Australian citizen child – political and economic developments in Sri Lanka – stepson’s education – applicant family seeking permanent residence – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 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 5 July 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 7 May 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 if the grant of the visa would result in the applicant being authorised to stay in Australia is the holder of one or more visitor visas, a subclass 417 or 462 visa or a bridging visa, for a total period of more than 12 consecutive months, that exceptional circumstances exist for the grant of the visa.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 because the delegate was not satisfied that the circumstances the applicant stated for their reasons for the application for further stay, amounted to exceptional circumstances for the grant of the visa.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant, and the nature of the review. The Tribunal considered the conduct of the hearing by video would allow the applicant to give evidence and 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 paperwork to be put to the applicants during the course of the hearing. For the above reasons, the Tribunal considered it was appropriate that the hearing in this review be conducted by way of video connection.

6. The applicant’s son, [named], had also applied for a subclass 600 visitor visa on 3 June 2023, and this application had been refused in a decision record dated 5 July 2023 on the grounds the applicant did not meet the criteria in cl.600.211. This applicant had also applied for review of the Department refusal decision. This applicant was born in [specified year], and it was appropriate due to his age that he be represented in the hearing by his guardians or parents.  Based on the submissions provided to the Tribunal, it appeared that although the Department’s decision record had refused the application on the basis this applicant did not meet a different subclause, the issues to be discussed in the review was similar. The Tribunal invited the applicant in the review which is the subject of this decision record, and the parent or guardian in relation to the applicant’s son’s review to advise if they consented to the matters proceeding by way of a combined hearing.

7. The Tribunal received written consent for the two matters to proceed by way of combined hearing.

8. The review was initially scheduled for hearing on 21 September 2023. This hearing was cancelled by the Tribunal due to circumstances beyond its control. The hearing was rescheduled to be heard on 16 October 2023.

9. The applicant appeared before the Tribunal on by video on 16 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [named] who attended the hearing by video on the same device with the applicant.

10. The applicant’s wife was listed as a witness in both hearings, but had nominated herself as a representative in relation to the applicant’s review. After a brief discussion in relation to the alternative roles of a witness and a representative, the applicant’s wife advised she wished to attend as a witness and give evidence in relation to both hearings.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether cl.600.215 is met. Cl.600.215(1) requires that if subclause (2) applies - exceptional circumstances 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) any or more visitor visas; (b) a subclass 417 Working Holiday visa; (c) a subclass 462 Work and Holiday visa; (d) a bridging visa.

13. I am satisfied based on the evidence of the applicant and his wife that he arrived in Australia [in] February 2020 as the holder of a three month visitor visa which ceased [in] May 2020. I am satisfied that the applicant has remained in Australia since his arrival [in] February 2020. I accept that the applicant has been lawful at all times, and the holder of a visitor or bridging visa whilst in Australia since [February] 2020.

14. I accept that after the applicant’s arrival in Australia [in] February 2020, the applicant remained in Australia due to the global pandemic, and applied for a further visitor visa. The Tribunal is satisfied the applicant was the holder of a bridging visa, while the application was processed and a second visitor visa for a period of six months was granted on 19 January 2022.

15. I am satisfied that the applicant applied for third visitor visa, and was the holder of a bridging visa from July 2022, until the third visitor visa was granted on 18 November 2022. I am satisfied based on the evidence before me, that in 2022 the applicant applied for the visitor visa which is the subject of this review online on 7 May 2023. The applicant has been the holder of a bridging visa since the third visitor visa expired, and the Department’s decision record refusing the application for that visitor visa is dated 5 July 2023.

16. I am satisfied that the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more visitor visas or bridging visas for a total period of more than 12 consecutive months. Therefore subclause 600.215(2) applies. To meet the requirements of cl.600.215(1) the Tribunal must be satisfied that exceptional circumstances exist for the grant of the visa.

    Consideration of exceptional circumstances

17. I am satisfied that the applicant’s wife’s first husband [had died] in Australia in 2014. I note that this matter is accepted by the Department, and the Tribunal (differently constituted) in a decision in relation to the applicant’s wife. The applicant was advised that I had considered this decision, and the applicant had referred to this decision, and the subsequent application by his wife for ministerial intervention, in his submissions to the Tribunal prior to the hearing.

18. I am satisfied that the applicant’s wife and her first husband (now deceased) have an Australian born child, born in [year] and an Australian citizen.

19. I am satisfied that the applicant’s wife and her son returned to Sri Lanka in 2016. The applicant’s wife met the applicant, they married in Sri Lanka, and had a child together born in [year].

20. I am satisfied based on the evidence before me, that the applicant came to Australia [in] February 2020 with his wife, stepson (born in [year]) and son (who was born in [year]). The applicant submits in written and oral evidence that his stepson had become distressed at school, because he had no knowledge of the country where he was born. I accept the applicant and his family planned a visit to Australia to enable his stepson to spend time in Australia.

21. I am satisfied that the applicant and his wife and children came to Australia at the beginning of the outbreak of the global pandemic. I accept his evidence that he and his wife decided it was safer to stay in Australia then return to Sri Lanka. I am satisfied there were global restrictions on travel. I accept the applicant’s evidence that he and his wife wished to remain in Australia until such time as they had been vaccinated and felt safe to return to Sri Lanka. I am satisfied that in 2022 there were difficulties in Sri Lanka, which caused a lack of fuel, food and transport, and there was fighting and violence in the country. I accept the applicant’s evidence that he and his wife wished to remain in Australia until such time as it would be safe for them to return to Sri Lanka. I am satisfied the applicant has provided credible evidence in relation to why he lodged the two previous visitor visa applications. I am satisfied that the two previous onshore visitor visa applications were granted in January 2022 and November 2022.

22. The applicant states the exceptional circumstances that exist for the grant of the visa include that his older stepson would find it difficult to return to Sri Lanka now. He states his older stepson had to go to an international school in Sri Lanka because of his lack of familiarity with the local language. I note that the applicant’s older stepson was approximately [age] years old when he returned to Sri Lanka in 2016, and would not have commenced school until some years after his return. I accept that the applicant’s wife chose to enrol her son in an international school.  I accept the child was upset after being asked at school to describe the country of his birth and not being able to do so. The applicant stated that his stepson was not a good student when they left Sri Lanka in February 2020. I note that the applicant’s stepson was aged [age] years when he left Sri Lanka in February 2020, and it would be difficult to assess such a young child’s ability as a student.

23. I accept that the applicant’s stepson is an engaged and happy student in Australia. I accept that the applicant’s stepson has been studying in Australia since his arrival in 2020. I accept that international schools are available in Sri Lanka if that is the choice of a child’s parents. I accept that English-speaking schools are available in Sri Lanka, if there is any concern about the linguistic ability of the child and the local language, and that is the choice of the child’s parents.

24. This review is in relation to exceptional circumstances for the grant of a visitor visa, which is a temporary visa. The visitor visa could not be granted for the entire period of the applicant’s stepson’s time at school. The evidence that the applicant and his wife do not wish the applicant’s [age] year old stepson to have to change schools, to a school in Sri Lanka for the balance of his educational schooling years are not exceptional circumstances for the grant of a temporary visitor visa. Furthermore, I am not satisfied that the impact of changing the applicant’s stepson’s school, even in changing his school from one in Australia to one in Sri Lanka, amounts to exceptional circumstances for the grant of the visa.

25. I accept based on the applicant’s evidence that the family have been vaccinated against the coronavirus, and the fear of contracting covid or becoming seriously ill because of the pandemic has been substantially reduced. I accept based on the applicant’s evidence that he does not claim the existence of the pandemic to be an exceptional circumstance for the grant of the visa. I accept based on the applicant’s evidence that the shortages and violence in Sri Lanka that occurred in 2022 are not current circumstances preventing their safe return to Sri Lanka. Based on the applicant’s evidence I do not accept the previous placed claims in relation to the basis for previous visitor visa applications, of either the pandemic or the issues in Sri Lanka in 2022, are exceptional circumstances for the grant of the visa.

26. The applicant stated that his wife had also applied for a visitor visa, which had been refused but after which she had applied for ministerial intervention to provide her with a favourable decision. The applicant and his wife both stated that the application for ministerial intervention had been after the Tribunal’s (differently constituted) review of the Department’s decision dated 7 July 2022 to refuse the applicant’s wife a further visitor visa. The Tribunal affirmed the decision of the Department in a decision dated 15 March 2023, but made a recommendation for ministerial intervention in relation to consideration of the family unit and consideration of the rights of the applicant’s wife’s Australian citizen child.

27. The applicant states he requests that the visitor visa to be granted to enable him to remain in Australia to support his wife and two children, while his wife awaits her application for ministerial intervention to be decided. The applicant states that he intends to remain legally in Australia and would not remain in Australia without a visa. The applicant states that his first priority is that the family remain together.

28. The applicant and his wife submitted that the applicant’s wife had not asked for ministerial intervention for the Minister to substitute a decision favourable to the applicant’s wife in granting her a visitor visa. The applicant and his wife submitted the application for ministerial intervention was a request that the Minister grant the applicant’s wife a permanent visa. The applicant and his wife stated that they had not made any application for a permanent visa.

29. I discussed with the applicant and his wife whether they had sought any legal advice in relation to their situation. I accept their evidence, that they had sought legal advice from migration agents, but could not afford the cost of the legal representation. I discussed with the applicant and his wife that they may be entitled to free legal advice, and could apply for free legal advice from certain legal resource groups. I accept their evidence that they had received legal advice from Legal Aid, which had been that the applicant’s wife should apply for student visa onshore. I accept the evidence that they did not wish to follow this advice. I am satisfied that the applicant and his wife have had reasonable and appropriate access to legal advice in relation to their situation.

30. The applicant’s wife stated that in her application for ministerial intervention she has requested the Minister to consider allowing her to apply for a contributory parent visa onshore. She stated she was advised otherwise the requirement is that this visa application had to be made offshore.

31. I have considered the evidence of the applicant that he wishes to support his wife while she waits for the outcome of her application for Ministerial Intervention. I am satisfied that the applicant and his wife wish to remain together with their children, and the applicant wishes to remain in Australia to support his wife and children. I accept his evidence that if the visa was granted, and after the visitor visa had expired and if the ministerial intervention decision had still not been made, that the applicant would enquire about further legal advice in relation to his situation.

32. I accept the clear evidence stated by the applicant and his wife that if they could find any legal pathway to remain permanently in Australia, they would seek to remain in Australia as permanent residents. I accept the applicant and his wife are hoping the application for ministerial intervention is successful in granting the applicant’s wife a permanent visa to reside in Australia on a permanent basis. I am asked to consider whether there are exceptional circumstances that exist for the grant of the visitor visa, which is a temporary visa. I am not satisfied that the circumstances of waiting in Australia for the applicant’s wife to await the outcome of her application for ministerial intervention in relation to a visitor visa, in the hope that she is granted a permanent visa, amounts to exceptional circumstances for the grant of a visitor visa.

33. The applicant, his wife and his son have all been refused further visitor visas which were lodged onshore. The applicant’s stepson is an Australian citizen. The applicant’s stepson is a child aged [age] years, who resided with his mother (and the applicant after they married) in Sri Lanka for four years from 2016 to 2020.

34. I have considered Australia’s international obligations in relation to both the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. I have considered the best interests of the child and stepchild of the applicant, and I have considered the rights of a family to remain together. I note that the applicant’s wife met the applicant when she was living in Sri Lanka with her child, and the younger child was conceived and born in Sri Lanka. While I accept that the Australian-born child, when aged [age] years expressed some distress about not knowing about Australia, there is no other evidence before me that the family unit experienced any hardship or difficulty residing together in Sri Lanka. I accept the evidence of the applicant that remaining in Australia to support his family has involved sacrifice, and that he has previously wished to return to Sri Lanka when it has been safe to do so. I accept that there has recently been shortage of essential supplies and violence in Sri Lanka, but I accept the evidence of the applicant that this is not a current concern, and the family unit would not experience any hardship or difficulty residing together in Sri Lanka as a result of the situation that arose in 2022. I have considered Australia’s international obligations, and the circumstances of this review, and in particular that this review involves the consideration of exceptional circumstances for the grant of a visitor visa which is a temporary visa. I am not satisfied that there is any indication that Australia’s international obligations would be breached, if the applicant was not granted the visitor visa. I am not satisfied that consideration of Australia’s international obligations amount to exceptional circumstances for the grant of the visa in this review.

35. I accept that the applicant’s wife’s first husband was killed in tragic circumstances in Australia, and that her older child is impacted by these circumstances. However, I do not consider that they amount to exceptional circumstances that exist for the grant of the applicant’s visitor visa.

36. I have considered the applicant’s wife’s written submissions and oral submissions that she wishes her children to grow up with the educational and other opportunities available in Australia. I am considering exceptional circumstances for the grant of a visitor visa, which is a temporary visa. I do not consider the applicant’s and his wife’s wishes that their children remain in Australia on a permanent basis are exceptional circumstances for the grant of the visa.

37. I have carefully considered whether the circumstances of the applicant and his family amount to a situation that exceptional circumstances exist for the grant of the visa. I have considered all the matters put before me, I am satisfied that the applicant and his wife wish to remain permanently in Australia. I have considered that this review relates to circumstances applicable to the grant of a visitor visa.

1. I am satisfied that the applicant has applied for his fourth visitor visa, after arriving in Australia on his first visitor visa of the series [in] February 2020. I have considered all the information and evidence before me, and as set out above, I am not satisfied that exceptional circumstances exist for the grant of the visa.

2. Therefore, the Tribunal finds that the applicant does not meet the requirements of cl.600.215(1).

3. For the above reasons the Tribunal finds that the requirements of cl 600.215 are not met.

   DECISION

4. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Margie Bourke
   Member