Bonilla Jimenez (Migration)

[2021] AATA 2476

Bonilla Jimenez (Migration) [2021] AATA 2476 (22 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leonel Bonilla Jimenez

CASE NUMBER:  1909476

HOME AFFAIRS REFERENCE(S):          BCC2019/1736699

MEMBER:Stavros Georgiadis

DATE:22 April 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 22 April 2021 at 4:27pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant had stayed in Australia for a total period of more than 12 consecutive months – exceptional circumstances don’t exist –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 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 on 13 April 2019 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 applicant applied for the visa on 8 April 2019. 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 the visa applicant to satisfy the requirement that exceptional circumstances exist for the grant of the visa where the visa applicant has stayed in Australia on one or more visitor visas (or a bridging visa) for a total period of greater than 12 consecutive months.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet the requirements for the visa as the delegate concluded that for the purposes of cl.600.215, exceptional circumstances did not exist for the grant of the visa in circumstances where the visa applicant had stayed in Australia for a total period of more than 12 consecutive months.

5. The applicant appeared before the Tribunal on 22 April 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.215 is met by demonstrating that exceptional circumstances exist in circumstances where the visa applicant has stayed in Australia for a total period of more than 12 consecutive months: cl.600.215 (1) and (2).

8. Clause 600.215 provides that if the grant of the visa would result in authorising a stay of more than 12 consecutive months as the holder of a visitor, working holiday, work and holiday visa or, for applications made from 21 November 2015,[1] a bridging visa, there must be exceptional circumstances for the grant of the visa. This criterion is only engaged where visas of the specified kinds are held consecutively, and not where there is an intervening visa of a different kind, such as a work visa.

   [1] Migration Legislation Amendment (2015 Measures No 3) Regulation 2015 (Cth) (SLI 2015, No 184) substituted cl 600.215 for visa applications made from 21 November 2015.

9. The applicant’s oral evidence was consistent with his migration history set out in the Department’s Movement details.  These record that the applicant was granted a Class TU 570 Student visa on 19 February 2013 valid from 7 March 2013 for 2 years.  The Tribunal accepts that the applicant arrived in Australia on 7 March 2013.  He was also granted a Class TU 572 Student visa from 18 November 2014 to 15 March 2017. Thereafter. he stayed on a Bridging WA-010 visa until he was granted a Class FA 600 Visitor visa on 21 March 2019 to 18 April 2019.  On 8 April 2019 the applicant was granted a further WA-010 Bridging visa.  These visa grants were consecutive of that period.

10. The Tribunal finds that in the present case, the visa applicant has stayed in Australia continuously since he last arrived on 7 March 2013. The Tribunal accepts that he remained on the Class FA-600 (Visitor) visa granted on 21 March 2019 until 8 April 2019 when the applicant was granted the further WA-010 Bridging visa. The Tribunal finds that for the purposes of cl.600.215, the applicant has stayed in Australia on one or more Visitor visas (or a Bridging visa) for a total period of more than 12 consecutive months and therefore, cl.600.215(2) applies. The applicant therefore, must demonstrate that exception circumstances exist for the grant of the visa in order to meet cl.600.215 of Schedule 2 of the Regulations as follows:

    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.

    Do exceptional circumstances exist for the grant of the visa?

11. Departmental policy suggests that where there has been a cumulative (but not consecutive) recent stay in Australia of more than 12 months, decision-makers should carefully consider whether the applicant continues to meet the genuine temporary stay requirement.[2]  In this particular case, the Tribunal has found that there has been a stay of more than 12 consecutive months on a material visa.

    [2] POLICY – MIGRATION REGULATIONS – OTHER – GenGuideH – Visitor visas – Visa application and related procedures – ‘If total stay will exceed 12 months’ (re-issue date 10/9/16).

12. The policy also gives examples of exceptional circumstances for authorising a stay longer than 12 consecutive months.  Adopting an ordinary meaning, examples include: death or serious illness of a close family member in Australia; where the visa applicant is required to provide assistance or support or an unexpected change in circumstances beyond the applicant’s control; where not granting the visa would cause significant hardship to an Australian resident or citizen.[3]

    [3] POLICY – MIGRATION REGULATIONS – OTHER – GenGuideH – Visitor visas – Visa application and related procedures – ‘If total stay will exceed 12 months’ (re-issue date 10/9/16).

13. At the hearing the Tribunal asked the applicant what, if any, exceptional circumstances exist in his case for the grant of the visa and pointed to the (not exhaustive) examples raised above in the Departmental policy.  In response, the applicant conveyed to the Tribunal that there were no such circumstances relating to him, either of providing assistance or support, or an unexpected change in circumstances beyond his control, or where not granting the visa would cause significant hardship to an Australian resident or citizen. The applicant explained that he has been residing with his sister and her husband (both of whom were present at the hearing) for the past 6 years and that they have been supporting him by way of assistance with day-to-day living / food expenses, the accommodation in their home in Como, WA and other financial support.  In return, the applicant helps out by tending the garden, caring for the chickens and other household chores.

14. When asked about any employment undertaken to sustain himself, the applicant denied working in Australia and referred to funds received in the order of US$30,000 following the sale of real property held by him in Colombia.  There is documentary evidence in support of this before the Tribunal in the form of a Notarised settlement statement dated 1 February 2019 and some bank statements.

15. When asked further about any exceptional circumstances in his case, the applicant told the Tribunal that his reason for wanting the further stay was to ‘travel around with some caravans’ and to ‘take the caravans to the south [of Western Australia] to Perth and Esperance’.  The Tribunal raised whether this amounted to exception circumstances and the applicant submitted ‘travel is my passion’ and that all he wanted was ‘to finish my trip’.  When asked how much longer his trip would have (at that time) taken, the applicant’s response was that he expected it to be a further 2 or 3 months beyond the end of his Tourist visa that lapsed in April 2019.  The applicant’s oral evidence on this point is generally consistent with the date of 7 July 2019 noted in the delegate’s decision relating to the timeframe for the applicant’s further stay.  The Tribunal raised with the applicant that this date has now well passed yet he remains in Australia, noting that the timeframe above predates any COVID-19 travel restrictions subsequently imposed. 

16. The applicant responded that a further reason for not leaving Australia at that time was that he was ‘waiting for a cheaper ticket’ to return to Colombia which he claimed had then cost about $4,000.  The Tribunal put to the applicant that he was at that time already in receipt of substantial funds of $US30,000 on his own accepted oral evidence, which he received in early 2019. The Tribunal put to the applicant that he had financial resources that he could have accessed to meet the return travel costs to depart Australia.  He reiterated in response, that travel is his passion and that he just wanted to finish his trip.  On further questioning, the applicant admitted to the Tribunal that he had now finished his trip in Australia.  When asked about his intentions regarding his stay in Australia, the applicant stated that he now wants ‘to go back to Colombia to see my parents’ (aged 72 and 78 years) as he has not seen them since 2014/15 when they were last in Australia for approximately 3 months.

17. The Tribunal has carefully considered all the evidence before it discussed and all the applicant’s circumstances. The Tribunal is not satisfied that in the particular circumstances of this case, exceptional circumstances exist for the grant of the visa.

18. For the above reasons the Tribunal is not satisfied that for the purposes of cl.600.215 where the grant of the visa would result in authorising a stay of more than 12 consecutive months as the holder of a Visitor, or for applications made from 21 November 2015,[4] a Bridging visa, there exist exceptional circumstances for the grant of the visa: cl.600.215(1) and (2).  

    [4] Migration Legislation Amendment (2015 Measures No 3) Regulation 2015 (Cth) (SLI 2015, No 184) substituted cl 600.215 for visa applications made from 21 November 2015.

19. Accordingly, the requirements of cl.600.215 are not met.

    DECISION

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

    Stavros Georgiadis
    Member