Cabrino (Migration)

[2018] AATA 4799

Cabrino (Migration) [2018] AATA 4799 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Maria Jose CABRINO

CASE NUMBER:  1800791

DIBP REFERENCE(S):  BCC2018/38698

MEMBER:Adrienne Millbank

DATE:15 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

Statement made on 15 October 2018 at 5:05pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – stay exceeding 12 months – spend time with family – no exceptional circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration on 8 January 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 3 January 2018. The Delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215.

3. Cl.600.215 states that:

   (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 407 (Working Holiday) visa;

   (c)     a Subclass 462 (Work and Holiday) visa;

   (d)     a bridging visa.

4. The Delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 because the grant of the visa would have resulted in the applicant staying in Australia for a total period exceeding 12 consecutive months. The applicant arrived in Australia on 24 January 2017 as the holder of a Visitor (Subclass 600) visa granted on 3 January 2017. She requested a further stay until 2 July 2018.

5. The applicant gave as her reasons for further stay to ‘Spend more time with my family and travel around more cities in Australia’. No further reasons were provided, and the Delegate was not satisfied that exceptional circumstances existed for the grant of the visa.  

6. The applicant did not attend the joint hearing scheduled for her and her mother on 9 October 2018. The Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A and that attempts were made to send SMS reminders prior to the hearing. No reason for the non-appearance was given.

7. Pursuant to s.362B of the Act, the Tribunal has proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether 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 and if so, whether there are exceptional circumstances for the grant of the visa.

10. A stated purpose of the applicant for visiting Australia was to accompany her mother who was 81 years old when granted a Visitor visa on 3 January 2017 and is 82 at the time of review. The applicant originally stated that she and her mother intended to spend time with their niece/granddaughter who is an Australian resident, and to visit tourist destinations in Australia. The applicant’s stated purpose in applying for the Visitor (Subclass 600) visa subject to this review was to continue accompanying her mother while they spent more time with their niece/granddaughter and her family, and visited more of Australia’s tourist attractions.

11. As noted above, the applicant requested a further stay of six months, until 2 July 2018. In a letter to the Department signed on 3 January 2018, she stated ‘we also do not intend to extend our stay for more than 6 months at all’.

12. The grant of a further Visitor (Subclass 600) visa would have resulted in the applicant staying in Australia for a total period exceeding 12 consecutive months. As noted, no evidence was provided regarding exceptional circumstances for the grant of the visa. The Tribunal nevertheless considered the circumstances of the applicant. While noting that the applicant’s mother is 82 years old, and that the applicant wanted to continue accompanying her mother while they spent more time with their niece/granddaughter and her family in Australia, the Tribunal does not find this an exceptional circumstance such as to warrant the grant of the visa.

13. The Tribunal therefore finds that the applicant does not meet cl.600.215.

14. The Tribunal notes that the applicant’s movement details show that she and her mother left Australia on 28 September 2018.

    DECISION

15. The Tribunal affirms the decision to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

    Adrienne Millbank
    Member