Cleary (Migration)

[2020] AATA 3950

Cleary (Migration) [2020] AATA 3950 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Joseph Cleary

CASE NUMBER:  1932745

HOME AFFAIRS REFERENCE:               BCC2019/5370371

MEMBER:Rosa Gagliardi

DATE:20 July 2020

PLACE OF DECISION:  Australian Capital Territory

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

·cl.600.215 of Schedule 2 to the Regulations.

Statement made on 20 July 2020 at 12:39pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream –in Australia for more than 12 consecutive months – COVID-19 and travel restrictions – medical conditions – credible witnesses – significant hardships – exceptional circumstances exist –decision under review remitted

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 Immigration on 30 October 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 October 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 (the Regulations). Relevantly to this case, they include cl.600.215, which requires the visa applicant to satisfy the Minister that if the applicant has previously held one or more Visitor visas or is on a Bridging visa, there are exceptional circumstances 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.

5. The applicant, Mr Thomas Joseph Cleary, appeared before the Tribunal on 20 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, Ms Susan Mary Cleary Gray and her husband, Dr Jonathan Patrick Gray.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. The applicant is an 85-year-old national of the Republic of Ireland.  In reviewing his movement records the Tribunal notes that he has been granted numerous Visitor visas to Australia to enable him to spend time with his daughter and her family in Australia.  The Tribunal notes that the applicant’s migration history shows that the applicant has always been in Australia lawfully and has not breached his visa conditions.  There has never been an issue as to the genuine intent of the applicant’s visits to Australia.

9. The applicant now finds himself in a complex set of circumstances which require him to continue to be in Australia for the foreseeable future until he is able to return to the United Kingdom safely and accompanied by his daughter, Ms Gray.

10. At issue in this case is cl.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.

11. The applicant is currently on a Bridging visa 010 granted on 25 October 2019, in association with this application.  Immediately prior to that the applicant held a subclass 600 Visitor visa, valid from 28 December 2018 to 26 October 2019.  The applicant has been in Australia as the applicant had been the holder of the above visas for a total period of more than 12 consecutive months as the applicant had initially entered Australia on 26 October 2018.

12. The applicant is therefore subject to the requirement that he demonstrate exceptional circumstances for the grant of a visa to enable him to continue to remain in Australia.

    Exceptional circumstances

13. It was explained at hearing that at the time of application little medical/other evidence was submitted to support the contention that the applicant faced exceptional circumstances that warranted the grant of a further Visitor visa.  The applicant’s daughter, and her husband, provided several sound and credible reasons why the application was dealt with in manner than was less than thorough at the time.  These reasons centred on the family’s extenuating circumstances which meant that they were unable to focus on the application to provide detailed information to satisfy the delegate that there were exceptional circumstances for the grant of the visa.  They were also unrepresented at the time of application and were unable to obtain advice about the options open to them in terms of the applicant’s migration status in Australia.

14. It was argued at hearing, and the Tribunal is convinced by the migration agent’s statements, that once COVID-19 and travel restrictions came in to play the Department was taking a more flexible approach to persons in the applicant’s situation.  The applicant is 85 years of age and the medical evidence submitted demonstrates that he is vulnerable in terms of contraction of the COVID illness.  Apart from his age, the applicant has a heart pace maker and is showing signs of cognitive decline.  Further, it was posited at hearing that given his medical conditions, the applicant’s daughter had always intended to accompany her father to his home country and care for him there.  Her personal circumstances have, however, prevented this to date and these circumstances are over and above the difficulties relating to COVID 19.

15. The applicant’s daughter has serious health issues which have impacted her ability to travel in the immediate future.  In the words of the applicant’s daughter, “During September and October 2019 my physical and mental health completely overwhelmed me”.  Apart from the fact that the Tribunal found the applicant, his daughter and her husband powerfully credible witnesses, they have now provided significant medical evidence that supports their claims.  The Tribunal accepts that the applicant is not in a position currently to accompany her father overseas in the immediate future given her own health conditions.

16. Apart from her own struggles with her health, her conditions are exacerbated by her own son’s medical conditions which prevent her from departing Australia at this time.  Medical evidence has been submitted which refers to the applicant’s daughter’s son suffering from schizophrenia and whose condition and conduct is difficult to manage.  The applicant’s son’s illness is intractable and has created for a difficult family dynamic in which he is prone to cause harm.  The applicant’s daughter sees herself as an integral part of the management of the family.  She also supervises her son’s legal requirement in terms of his medication being administered regularly.

17. The Tribunal accepts that the applicant’s daughter is unable to travel overseas with the elderly applicant at this time and that she considers that to send him to his home country on his own would create further significant hardships for herself and her family, and would place the applicant at risk health-wise.

18. Having had regard to the applicant’s circumstances together with those of the family he lives with, individually and cumulatively, the Tribunal is satisfied that there are exceptional circumstances for the grant of the visa.

19. As such, the applicant meets the requirements of cl.600.215.

    DECISION

20. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.215 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member