Anand (Migration) - [2025] ARTA 295

ANAND (MIGRATION) [2025] ARTA 295 (19 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Meena Anand
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2310145

Tribunal:Senior Member L. Symons
Place:Sydney
Date: 19 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order that the applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl 600.215 of Schedule 2 to the Regulations.

Senior Member L Symons
Statement made on 19 February 2025 at 011:25am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – grant of visa would result in applicant being authorised to stay for a total of more than 12 months – exceptional circumstances – change in circumstances – grandchild born shortly before last visitor visa granted – developmental condition and therapy – care for child and support for parents – no medical evidence for grandson provided – joint hearing with husband’s review – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.215
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 26 June 2023 to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied to the Department of Immigration and Multicultural Affairs (the Department) for the visa on 2 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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.215, which requires the applicant to satisfy the Minister that exceptional circumstances exist for the grant of the visa.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215. This is because the delegate was not satisfied that exceptional circumstances exist for the grant of the visa. On 11 July 2023, the applicant applied to the Tribunal for a review of this decision.
The applicant appeared before the Tribunal via video on 4 October 2024 to give evidence and present arguments. This hearing was conducted as a joint hearing of an application for review by the applicant’s wife, Mr Ramesh Anand, with their consent. They each indicated that they were giving evidence in relation to their respective applications and as witnesses in the other’s case. The Tribunal also received oral evidence from Mr Ramesh Anand and the applicant’s son, Mr Rubal Anand. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by Mr Rubal Anand who attended the hearing via video and was granted leave to be a witness in the case.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for purposes of the proceeding after the 14 October 2024. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal (item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether cl.600.215 is met, which requires the Tribunal to be satisfied 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 as the holder of one or more Visitor visas or subclass 417 (Working Holiday) visas or subclass 462 (Work and Holiday) visas or a Bridging visa for a total period of more than 12 consecutive months.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 26 June 2023. It indicates that he last arrived in Australia on 9 August 2019 as the holder of a Subclass 600 Visitor visa that was valid until 9 August 2020. On 2 May 2023, he applied for another Subclass 600 Visitor visa requesting a further stay until 1 November 2023. This would result in him staying in Australia for a total period of more than 12 consecutive months. In his visa application, he stated that the reason for the extension is that he wanted to stay with his children and was returning (to India) in October 2023.
In considering whether exceptional circumstances exist for the grant of the Visitor visa, the Tribunal has had regard to the policy guidelines in PAM GenGuide H – Visitor visas. It states that the principles of the Visitor Program are that visitors to Australia must genuinely intend only to visit Australia temporarily, not work unlawfully, not engage in studies or training for more than 3 months, have, or have access to, adequate means to support themselves during the period of the visit so that they do not need to access Australia’s social welfare system and leave Australia on or before the date their visa ceases unless they make a valid application to stay for a longer period to the benefit of Australia.
As the Act does not define exceptional circumstances, the Tribunal has considered the policy guidelines in PAM GenGuide H – Visitor visas in relation to exceptional circumstances which it states 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 and
◦       is beyond the visa applicant’s control and
◦       where not granting a visa would cause significant hardship to an Australian   resident or citizen.
During the hearing, the applicant gave evidence that she does home duties and was not in paid employment in India. She and her husband are joint owners of a house in India. They have no other assets. She has no family in India. She has two sons, two daughters-in-law and two grandchildren in Australia. Her son Rubal is an Australian permanent resident. He has a son who is 3 ½ years old and Hitesh has a daughter who is 2 weeks old. Rubal’s wife will be returning to work in 2 to 3 months and Hitesh’s wife will be returning to work in 5 to 6 months. She and her husband babysit their grandchildren.
Ms Meena Anand stated that her health is alright. She has diabetes. She is not on medication and just does yoga. Her husband has arthritis and it is bad in winter. Sometimes he is bedridden for 2 to 3 months. There have been no changes in her circumstances since she was granted her last Visitor visa on 4 November 2022.
The Tribunal referred Ms Meena Anand to her statement in her visa application that she wanted to stay with her son and his family and return to India in October 2023, noted that this date had expired and asked her why she had not returned to India. She responded that they had arranged for (airline) tickets. Her husband cannot travel long distances so her son was going to travel with them. Rubal’s son was recently diagnosed (with autism) and they have to look after him. That is why they have not returned to India. When asked whether it is her intention to remain in Australia permanently to look after Rubal’s son, she responded that if they get a visa they will stay. The child gets “hyper” and they are doing it for the child. Otherwise, they have no intention of staying here. They would like a visa for 5 to 6 months and will then return to India.
The Tribunal informed Ms Meena Anand that one of the requirements for the grant of this Visitor visa was that there are exceptional circumstances for the grant of the visa. When asked whether there are exceptional circumstances for the grant of the visa, she responded that the child’s health is not good. He is going for therapy sessions. That is the only reason. She had nothing further to add.
The applicant’s husband, Mr Ramesh Anand, gave evidence that he is not in paid employment and last worked in India in 2003. He has not worked in Australia and his children pay for his expenses. He has no family in India. He has two children and both live in Australia. His son Rubal is also married and has a son who is 3 ½ years old. Rubal works full time and financially supports him and his wife. His wife will be returning to work in 2 to 3 months. He and his wife babysit Rubal’s child. His son Hitesh is here on a Student visa. He also works part time as a restaurant manager. He is married and has a daughter who is 2 weeks old. His wife and daughter also live in Australia. His wife was working part time and will return to work in 5 to 6 months.
Mr Ramesh Anand gave evidence that his health is not good. He suffers from arthritis and consults a doctor. He is on medication for this condition. He does not have any other health problems. His wife is in good health. There have been no changes in his, his wife’s or his son Rubal’s circumstances since he filed his visa application on 4 November 2022. The Tribunal referred to his statement in his visa application that he wanted to return to India in October 2023, noted that this date had expired and asked him why he had not returned to India. He responded that his health was not good and Rubal’s son’s health was not good. He has been diagnosed with autism and gets “hyper” sometimes. Rubal is at work so they look after him.
The Tribunal informed Mr Ramesh Anand that one of the requirements for the grant of this Visitor visa was that there are exceptional circumstances for the grant of the visa. When asked whether there are exceptional circumstances for the grant of the visa, he responded that it was the issue with Rubal’s son. He subsequently stated that his son Hitesh’s daughter is young and they would like to spend some time with her. It is not his intention to stay in Australia permanently. He would like a visa for 5 to 6 months.
The applicant’s son, Mr Rubal Anand, gave evidence that he works as a courier and also runs a business selling first aid kits. He works full time as an owner operator driver. He earns $2,000.00 per week. It is not taxable as he works in his own company. His wife works part time as a disability worker and also studies. She is expected to finish her studies in 3 to 4 months. They are struggling with therapy for their son. He sees a speech therapist and a chiropractor. He is hyperactive, does not speak and gets aggressive. He cannot sit alone for 10 minutes. His wife is primarily responsible for taking him to appointments.
Mr Rubal Anand gave evidence that he and his wife own a house, which is subject to a mortgage of $400,000.00, and two cars. They have savings of between $15,000.00 and $20,000.00. He is able to continue to provide his parents with accommodation and pay for their financial expenses in Australia if they are granted the visas. When asked why his parents needed the visas, he responded so they can help him. If he and his wife are alone, they sometimes get depressed. They do not understand what to do. Sometimes their child gives them a hard time. He can speak a few words but cannot say what he wants. He hits them. Understanding is a big problem for him. It is difficult for them and they get tired. They have applied for NDIS and are not sure when they will get it. Their son is having surgery next month for tonsilitis. They keep trying to follow the doctor’s instructions.
The Tribunal discussed exceptional circumstances with Mr Rubal Anand. He responded that his father cannot travel alone. They applied for the visas to travel with him. When the visas were refused, he was in so much pain that he could not travel. He sees a specialist every 2 to 3 months. In India, they were saying a different story from what they are saying here. He wants to make sure he is better. He is slowly getting better. His son is hyperactive and he and his wife are under stress. It is hard for his wife to cope. They wake up in the middle of the night. They need his parents’ help. That is the reason.
The Tribunal raised a number of issues with the applicant. The Tribunal noted that she had been living in Australia continuously since 9 August 2019 and she and her husband applied for the visas to be able to continue to be with their children. The Tribunal noted that the evidence may lead it to the conclusion that she and her husband want to remain in Australia to take care of their grandchildren to help their sons and enable their daughters-in-law to return to work. The Tribunal noted that this is not why Visitor visas are granted. The applicant responded that after they arrive in Australia Covid happened and they had to remain here. Her daughter-in-law gave birth to their grandson. They had to stay in Australia because of their grandson.
The Tribunal noted that wanting to support her children is normal for parents and wanting to be with her grandchildren is normal for grandparents. The Tribunal noted that there are permanent visas she could apply for. The Tribunal noted that it may not be satisfied that there are exceptional circumstances for the grant of these visas. The applicant responded that her grandson is hyperactive. He sometimes bangs his head on the wall. Her son and daughter-in-law cannot cope and are depressed. They need her help and her husband’s help.
The Tribunal raised as an issue with the applicant the fact that she had not filed any evidence with the Tribunal to support her claims that her grandson has medical problems and he needs extra assistance because of that. The applicant responded that her son Rubal could tell the Tribunal about it.
Mr Rubal Anand gave evidence that the visa applications were lodged by a migration agent and he did not ask him about evidence. He did not know he had to provide evidence. He has reports from doctors for his father. His migration agent is still representing his parents. He is currently in India. He requested and was granted further time to file additional evidence.
Following the hearing, the Tribunal received a number of supporting documents including an undated letter from Dr Mike Poulsen, Chiropractor, in relation to the applicant’s grandson. It indicates that his grandson has been under the care of Dr Poulsen since 29 July 2024 and “after a thorough neurological and developmental assessment it is evident that Samar demonstrates a significant level autonomic dysregulation”. It indicates that the practice does “not treat or diagnose any condition but clinically assess evidence of underlying neurological inefficiencies that may impact an individual’s ability to engage, connect and learn in their environment efficiently”.
The Tribunal also received letters dated 5 April 2024 and 2 August 2024 from Dr Suman Murthy in relation to Mr Ramesh Anand. These letters refer to his diagnoses of rheumatoid arthritis, osteoarthritis in the right hip and right gluteus medius tear. The Tribunal also received a Patient Health Summary dated 12 October 2024, the first page of a letter dated 20 April 2023 from ChestCare, a letter dated 45 March 2024 from Dr Dion Grosser and a letter dated 12 September 2024 from Dr Sandy Craig in relation to Mr Ramesh Anand.
Having considered all the evidence, the Tribunal finds that the applicant and her witnesses are credible witnesses. The Tribunal accepts that the applicant’s son Rubal is an Australian permanent resident. The Tribunal accepts that her grandson, Samar, was born shortly prior to the grant of her last Visitor visa on 4 November 2022. The Tribunal accepts that, at that time, her grandson’s neurological difficulties had not been identified, diagnosed or treated. Mr Rubal Anand gave evidence that his son has recently been diagnosed with autism. The only evidence provided to the Tribunal in relation to his son is an undated letter from a Chiropractor. The Tribunal has no medical evidence in relation to the level of care Samar requires or his long term prognosis.
Nevertheless, the Tribunal accepts that Samar is unable to verbalise his needs and that his parents are unable to manage his hyperactivity and aggressive behaviours and care for him without the assistance of the applicant and his wife. The Tribunal accepts that since Samar’s diagnosis he has been receiving treatment from a chiropractor and a speech therapist. The Tribunal accepts that his parents have applied for assistance through NDIS and are awaiting assessment. The Tribunal accepts that Mr Rubal Anand works full time and financially supports his family including the applicant and her husband.
The Tribunal accepts that Mr Rubal Anand’s wife was due to return to her work 2 months after the hearing. The Tribunal accepts that she is primarily responsible to take Samar to and from his various appointments, that she is under considerable stress caring for Samar whilst studying and will be returning to work.
The Tribunal accepts that this has been a change in the applicant’s circumstances as well as a change in the circumstances of Mr Rubal Anand and his wife, who are Australian residents. The Tribunal accepts that this could not have been anticipated at the time her last Visitor visa was granted. The Tribunal accepts that these circumstances are beyond the applicant’s control. The Tribunal considers that once Samar is assessed by NDIS and supports are put in place through NDIS circumstances will improve for Mr Rubal Anand and his wife. The Tribunal is satisfied that not granting the visa would cause significant hardship to an Australian resident or citizen.
In view of the above, the Tribunal finds that the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of a subclass 600 Visitor visa for a total period of more than 12 consecutive months. The Tribunal finds that exceptional circumstances exist for the grant of the visa. Therefore, the applicant meets the requirements of cl.600.215 of the Act.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order that the applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl 600.215 of Schedule 2 to the Regulations.
Date of hearing: 4 October 2024
Representative for the Applicant: Mr Rubal Anand