Cristobal (Migration)

[2018] AATA 450

Cristobal (Migration) [2018] AATA 450 (26 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rowena Cristobal

CASE NUMBER:  1723932

DIBP REFERENCE(S):  BCC2017/3330379

MEMBER:Linda Symons

DATE:26 February 2018

PLACE OF DECISION:  Sydney

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 26 February 2018 at 10:53am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Exceptional circumstances – Seeking to marry an Australian citizen – Australian divorce not yet granted – Unable to remarry in home country without an annulment – Credible witness

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 14 September 2017 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 13 September 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 exceptional circumstances exist 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 because she was not satisfied that exceptional circumstances exist for the grant of the visa. On 6 October 2017, the visa applicant applied to the Tribunal for a review of this decision.

5. The applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. 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 visa 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:

8. In the present case, the visa applicant arrived in Australia on 12 October 2016 as the holder of a subclass 600 Visitor visa that was valid until 12 October 2017. She has remained in Australia since then. On 13 October 2017, she lodged an application for a subclass 600 Visitor visa and requested a further stay in Australia until 10 January 2018. This would result in her staying in Australia for a total period of more than 12 consecutive months. In her visa application, she stated that the reasons for the extension are getting married on 16 November 2017 and wanting to stay in Australia for Christmas.

9. During the hearing, the Tribunal discussed with the applicant whether there are exceptional circumstances for the grant of the visa. She stated that she was unable to get married on 12 October 2017 because her divorce from her husband was not finalised in time. She stated that she applied for a divorce in Australia on 12 October 2017 and her application for divorce had to be adjourned because she was unable to serve the documents on her husband, who lives in the Philippines, on time. She has provided to the Tribunal a document which indicates that she appeared before the Federal Circuit Court at Parramatta in relation to her application for divorce on 24 January 2018 and her application was adjourned for hearing to 19 April 2018. She stated that her husband’s address was not known at the time but has now been obtained and provided for service of the documents on him.

10. The applicant gave evidence that she is unable to apply for a divorce in the Philippines as the law does not permit it. She stated that she will have to apply for an annulment of her marriage in the Philippines. She stated that, even if she is divorced in Australia, she cannot get re-married in the Philippines without an annulment of her marriage. She stated that, as her marriage to her Australian fiancé could not proceed on 12 October 2017, it has now been postponed to 15 June 2018. She provided the Tribunal with a letter dated 19 February 2018 from the Registry of Births, Deaths and Marriages confirming that her marriage is to take place on 15 June 2018.

11. In considering whether the visa applicant’s circumstances are exceptional, the Tribunal has had regard to the policy guidelines in PAM GenGuide H – Visitor visas as the Act does not define exceptional circumstances.  It states that 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 and

    ◦       is beyond the visa applicant’s control and

    ◦       where not granting a visa would cause significant hardship to an Australian   resident or citizen.

12. The applicant’s evidence is that she came to Australia on a Visitor visa to visit her family. She stated that she then met her fiancé, formed a relationship with him and they decided to get married. She stated that this was unplanned, unexpected and beyond her control.

13. The Tribunal finds that the applicant is a credible witness. The Tribunal accepts that she came to Australia to visit her family and had no intention of meeting and marrying an Australian citizen or resident at that time. The Tribunal accepts that this change in her circumstances could not have been anticipated at the time her Visitor visa was granted. The Tribunal accepts that her inability to obtain a divorce in the Philippines and the necessity to apply for an annulment in the Philippines (even if she is granted a divorce in Australia) before she is able to re-marry in the Philippines are all matters beyond her control. The Tribunal is satisfied that not granting the visa would cause significant hardship to her fiancé who is an Australian resident.

14. For the above reasons the Tribunal is satisfied that exceptional circumstances exist for the grant of the visa and finds that the requirements of cl.600.215 are met.

    DECISION

15. 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.

    Linda Symons
    Member