Agius (Migration)

[2021] AATA 4424

Agius (Migration) [2021] AATA 4424 (15 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anthea AGIUS

CASE NUMBER:  1935093

HOME AFFAIRS REFERENCE(S):          BCC2019/5792388

MEMBER:Nathan Goetz

DATE:15 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·cl.600.215 of Schedule 2 to the Regulations

Statement made on 15 November 2021 at 3:17pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – grant of visa would result in stay for total period more than 12 months – exceptional circumstances beyond applicant’s control – COVID-19 public health orders and travel restrictions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(1)
Migration Regulations 1994 (Cth), Schedule 2, 600.215

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 visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in the review application from 29 October 2021 by registered migration agent 1577048 Ms Maryanne Issa.

   BACKGROUND

3. The applicant identifies as 25-year-old female citizen of Malta. She arrived in Australia on 18 November 2019 holding a working holiday visa. This visa ceased on 18 November 2019.

4. On 15 November 2019 the applicant applied for the visitor visa that is the subject of this decision record. On 22 November 2019 the delegate refused to grant the visitor visa on the basis that the applicant did not satisfy cl.600.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). On 12 December 2019 the applicant applied to the Tribunal for review of the decision to refuse to grant the visitor visa.

5. On 28 October 2021 the Tribunal wrote to the applicant for two reasons.

6. The first reason to was invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing scheduled to commence at 1:30pm (Sydney time) on 15 November 2021. The Tribunal was satisfied that a telephone hearing was appropriate given the applicant resided in Victoria and the Tribunal Member was located in New South Wales. The Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relation to the issues arising in relation to the decision under review because the Tribunal had considered the material it had and as unable to decide the review in the applicant’s favour.

7. The second reason was to invite the applicant under s.359(2) of the Act to provide the Tribunal with information. The Tribunal requested information to demonstrate that the applicant satisfied cl.602.215 of the Regulations.

8. On 29 October 2021 Tribunal received a change of representative form, appointing her current migration agent, as well as a request for the Tribunal hearing to be postponed for 30 days to prepare time to review the applicant and prepare submissions. As there was no request for an extension of time for the request for information under s.359(2) of the Act, the Tribunal did not agree to postpone the Tribunal hearing, as a failure to provide the information requested under s.359(2) would result in the Tribunal hearing being cancelled: ss.360(3) and 363A of the Act.

9. On 8 November 2021 the Tribunal received a ‘Response to hearing invitation form’ indicating that the applicant would appear at the Tribunal hearing. The response indicated that written submissions would be submitted by 11 November 2021, which was the due date for the request for information under s.359(2) of the Act.

10. On 11 November 2021 the Tribunal received the information in response to the s.359(2) request. The information is detailed later in this decision record.

11. On 15 November 2021 the applicant appeared at the Tribunal hearing by telephone. The applicant’s de facto spouse was also present and spoke to the Tribunal. The applicant’s migration agent also attended the Tribunal hearing.

    CRITERIA FOR THE VISITOR VISA

    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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Visitor visa application form

12. The visa application form was completed with the assistance of the applicant’s previous migration agent.

13. The applicant indicated she was not currently outside Australia. She requested a further stay of up to 6 months. The requested end date was 14 April 2020. The form noted that ‘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. Please provide details.’ The applicant wrote ‘currently on shore.’

14. The applicant indicated she was born in Pieta, Malta and that her relationship status was de facto and this person was Karl Gatt. She declared that she has previously travelled to Australia and previously applied for a visa to Australia. She will not undertake a course of study and indicated that she was ‘currently travelling Australia while looking for work.’ Her stay in Australia will be self-funded and she directed the reader to a bank statement she claimed demonstrated she had sufficient funds until her visa is processed. She declared that she currently held a working holiday visa and understood that the visitor visa if granted would not permit her to work in Australia.

    Information provided to the Tribunal in response to request under s.359(2) of the Act

15. The information was provided by written submission from the migration agent. It was submitted that the applicant satisfies cl.602.215 because of the following:

16. After arriving in Australia, Ms Agius’s intention was to seek employment to earn additional funds, and then to travel throughout Australia with her partner. While she did this to a limited extent, she believed she would be able to extend her stay in Australia as a tourist and see more of the country before returning home to Malta.

17. To that extent, Ms Agius lodged an application for a Visitor visa on 15 November 2019, just under 12 months after she first arrived.

18. Greatly disappointed by the decision to refuse her visa application due to being assessed as a non-genuine visitor, Ms Agius applied to the Tribunal for a review of the delegate’s decision. Soon after lodging her review application, however, the COVID-19 pandemic was declared and Ms Agius’s time in Australia since then has been dominated by the pandemic and the consequent restrictions imposed by both Commonwealth and State governments, particularly in terms of intra- and interstate travel.

19. These restrictions have resulted in Ms Agius and her partner seeing and experiencing far less of Australia than they hoped for when they initially planned their time in Australia.

20. While she values the additional length of stay in Australia waiting for her review hearing, she has spent that time working to support herself as she had no alternative due to travel and other restrictions, including the extensive periods of lockdown imposed on residents of metropolitan Melbourne.

21. Ms Agius is seeking to remain in Australia for a period of six weeks from the date of the Tribunal hearing on 16 November 2021. Her reason for seeking a short period of additional time in Australia is to undertake some travel within Victoria and elsewhere now that most travel restrictions have been lifted.

22. She and her partner also require a short period of time to finalise their personal circumstances in Australia before departing. This includes catching up with friends they have made during their time in Australia and selling as many of their personal items as possible that they have acquired during their stay.

23. Ms Agius currently has just over $13k in savings (as at 10 November 2021), which constitutes sufficient funds to cover the period she is requesting. She is aware that working while holding a Visitor visa is prohibited.

24. Ms Agius has a positive immigration history and will readily comply with any and all conditions that may be imposed on her visa if granted.

25. In closing, we note that the COVID-19 pandemic has caused great upheaval throughout Australia. In the context of that upheaval, Ms Agius simply requests a short period of additional time in Australia to mitigate, in a small way, the adverse impact the pandemic has had on her Australian dream.

    DISCUSSION AT TRIBUNAL HEARING

26. The applicant told the Tribunal that she was not expecting that the visitor visa application would be refused. She was unaware that she had to satisfy cl.600.215 of the Regulations. The previous migration agent did not advise her of this requirement. Had she known this, she would have departed Australia permanently or would have departed Australia temporarily during the currency of her working holiday visa and returned to lodge the visitor visa so she could have more time to visit Australia. She gave the Tribunal the impression that the previous migration agent had done very little work preparing the visitor visa application.

27. In terms of future plans in Australia, the Tribunal was told that the applicant and her de facto spouse wished to be granted the visitor visa until 31 January 2021. They planned to book flights and depart Australia prior to this. This would allow them time to travel to New South Wales for New Year’s Eve celebrations, and to visit Queensland shortly thereafter. This would allow them time to see family and the friends they had made during their time in Australia, terminate their month-to-month lease on their residence, and dispose of any personal property.

28. The Tribunal was told that while exceptional circumstances may not have existed at the time the applicant applied for the visitor visa in November 2019, exceptional circumstances were now present because the COVID-19 pandemic had meant that the applicant had been unable to travel around Australia and undertake the type of things a visitor visa is designed to allow a person to do during a stay in Australia as a visitor.

    FINDINGS AND REASONS

29. The issue in the present case is whether exceptional circumstances exist for the grant of the visa because if the applicant was granted the visitor visa as of today’s date, she would have been in Australia for almost two years: cl.602.215 of the Regulations.

30. The issue is not whether the applicant genuinely intends to stay temporarily in Australia. In so far as the claim made in the written submissions that the applicant was refused the visa on that basis, that is plainly wrong. As noted in the delegate decision, the reason for the refusal was due to the applicant not satisfying cl.602.215 of the Regulations, clearly because the only detail addressing this clause provided by the applicant was ‘currently on shore’ which is not exceptional.

31. Having considered the written material, and the discussion at the Tribunal hearing, the Tribunal is satisfied that there are exceptional circumstances for the grant of the visitor visa.

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

33. According to department policy VM- 3190 issued reissued on 10 September 2016, the tourist stream of a visitor visa is designed for persons intending to visit Australia for the purpose of tourism or other recreational activities such as: 

    ·     holidays or sightseeing

    ·     social or recreational reasons

    ·     visiting relatives or friends

    ·     studying for less than three months

    ·     other short-term, non-work purposes. 

34. That same policy details exceptional circumstances may include:

    ·the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support

    ·a change in the applicant’s circumstances (or the circumstances of an Australian resident) that could not have been anticipated at the time their visitor visa was granted is beyond the visa applicant’s control and where not granting a visa would cause significant hardship to an Australian resident or citizen. 

35. The Tribunal notes that tourism brings many economic benefits to Australia as people on visitor visas contribute to the Australian economy without engaging in paid work depriving Australian citizens of employment opportunities. It is obvious that the tourism sector in Australia has faced, and continues to face, significant challenges due to the COVID-19 pandemic.

36. While it may be that exceptional circumstances did not exist at the time the applicant applied for the visitor visa in November 2019, the Tribunal is satisfied that it is general public knowledge that restrictions through multiple public health orders started to be put in place from around March 2020 and are only starting to cease now. It is also general public knowledge that domestic and international flights are not as readily available as they were prior to the pandemic.

37. In the present circumstances, the applicant has been deprived of the opportunity to engage in the sort of activity that it would be reasonable to expect a tourist to engage in. The Tribunal accept that the applicant would have abided by the relevant state heath orders which prohibited intra and inter state travel, as well as prohibiting her leaving her ordinary place of residence in Victoria. This can be contrasted with a person who does not undertake the usual activities of a tourist because they did not have the funds or interest in doing so.

38. The various public health orders that have been imposed to address the COVID-19 pandemic were a necessary restriction of individual liberty, and clearly created the type of exceptional circumstances that cl.602.215 of the Regulations was created to address. Given what has occurred due to the COVID-19 pandemic, the Tribunal is satisfied that exceptional circumstances exist for the grant of the visa which would result in the applicant being authorised to stay in Australia as the holder of one or more visas for a total period of more than 12 consecutive months.

    CONCLUSION

39. Given the above, the applicant satisfies cl.602.215 of Schedule 2 of the Regulations.

    DECISION

40. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·cl.600.215 of Schedule 2 to the Regulations

    Nathan Goetz
    Member