Devi (Migration)

[2021] AATA 4022

Devi (Migration) [2021] AATA 4022 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Seema Devi

CASE NUMBER:  1909119

HOME AFFAIRS REFERENCE(S):          BCC2019/1686392

MEMBER:Stephen Conwell

DATE:29 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 29 September 2021 at 11:51am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – parties plan to apply for a Partner visa – applicant has already been granted four consecutive Visitor visas whilst onshore – not satisfied that visa applicant genuinely intends to stay temporarily in Australia – 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 9 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 visa applicant (applicant) applied for the visa on 4 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 there to be exceptional circumstances for granting the visa where granting the visa would result in the applicant being authorised to stay in Australia as the holder of certain visas for a total period of more than 12 consecutive months.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215 because the circumstances given by the applicant did not amount to exceptional circumstances for granting the visa.

5. The applicant  provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.

7. The parties participated in the hearing by telephone on 28 September 2021 to give evidence and present arguments. The Tribunal received oral evidence from the sponsor and from the applicant who are both onshore. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The applicant was represented in relation to the review by her registered migration agent who did not attend the hearing.

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

   Background

10. Based upon the evidence before it, including the decision record and the parties’ testimony at hearing, the parties’ migration and personal history is summarised below.

11. The applicant is a citizen of India. As is customary in traditional Indian culture, she lives with her in-laws in the village of Possi in the State of Punjab.

12. Her husband came to Australia on a Student visa and acquired Australian citizenship in approximately 2015. The couple married in India in 2013.

13. The applicant last arrived in Australia on 28 July 2017, on a FA 600 Visitor visa (Tourist stream) together with the parties’ young son, born in 2015. Whilst onshore the applicant was granted a further four consecutive FA 600 Visitor visas (Tourist stream), with the last one expiring on 12 April 2019. The applicant has remained continuously onshore since her last arrival on 28 July 2017.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that there are exceptional circumstances for the grant of the visa where that visa would result in the applicant being authorised to stay in Australia as the holder of certain visas for a total period of more than 12 consecutive months.

15. The Tribunal notes from the delegate’s decision that the applicant last arrived in Australia on 28 July 2017 as the holder of a Visitor visa and remained continuously onshore by being granted four consecutive Visitor visas. Before expiry of her last Visitor visa, she lodged the present visa application on 4 April 2019, requesting a 12 month stay until 3 April 2020.  The grant of the visa would therefore result in the applicant being authorised to stay in Australia for more than 12 consecutive months. This was not disputed by the applicant.

16. The Tribunal finds that cl.600.215(2) applies, and therefore cl.600.215(1) must be satisfied. Clause 600.215(1) provides that, if cl.600.215(2) applies, exceptional circumstances must exist for the grant of the visa.

17. The term “exceptional” is not defined in the legislation and is given its ordinary English meaning. The Macquarie Dictionary refers to “exceptional” as “forming an exception or unusual instance; unusual; extraordinary”.

18. Whilst there has been no judicial consideration of the meaning of “exceptional circumstances” in the context of cl.600.215, it has been judicially considered in the context of other visa classes. In An v Minister for Immigration and Citizenship [2007] FCAFC 97, relating to an Employer Nomination (Residence) visa, the majority of the Full Federal Court held that “exceptional circumstances” is a simple, non-technical phrase and should be understood as meaning ‘unusual’ or ‘atypical’. It has also been considered in the context of s.137L of the Act in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918, where the Magistrate referred with approval to the following comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548:

    Exceptional" circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances...The words "exceptional circumstances" may apply to a variety of circumstances and no definition which limits their application should be adopted, unless their application appears from the relevant statutory provision.

19. The Department’s Procedures Advice Manual (PAM 3) gives the following examples of exceptional circumstances for authorising a stay longer than 12 consecutive months, including:

    ·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:

    o  could not have been anticipated at the time their visitor visa was granted, and

    o  is beyond the visa applicant's control, and

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

20. In the application form the reason the applicant gave for wanting to stay longer in Australia was because she wanted to celebrate her children’s birthdays, as well as Christmas and New Year, in Australia. Furthermore her two children are very young (at the time of application her son was at kindergarten and her daughter was 10 months old.)

21. At the hearing the applicant said the parties intend to apply for a Partner visa, however when they first considered doing so, the sponsor (the applicant’s husband) did not yet have a full-time job. Later, the birth of their second child – a daughter born in Australia – placed a further financial burden on the parties, since she was born during the 12 month waiting period for obstetrics insurance cover. The parties therefore had to personally meet the full hospital and maternity costs of the birth. The applicant’s husband told the Tribunal he is now in full-time work and they are saving towards the cost of a Partner visa application.

22. The applicant wants the Visitor visa so they can stay together until they have saved enough money to apply for a Partner visa. The applicant told the Tribunal that her children are still young and require her care since her husband works full-time and there is no one else in Australia to care for them.  The Tribunal put to the applicant that should her review be unsuccessful, surely she would return to India with both children.  She responded that she does not want to have to return to India and be apart from her husband. Additionally the applicant said she is worried about COVID-19 situation in India and the disruption and delays the pandemic continues to cause to international travel.

23. The applicant’s husband requested that the applicant be granted a further Visitor visa whilst the parties save for the cost of a Partner visa application.

24. The Tribunal accepts the applicant’s evidence about why she wishes to stay in Australia and maintain her current circumstances.  The Tribunal accepts that the parties plan to apply for a Partner visa once they can afford to do so.  Further, the Tribunal accepts she and her husband may find it difficult emotionally being separated.  However the Tribunal does not consider this is an exceptional circumstance to support the grant of a further temporary visa.  Her wish to reside with her partner is not something out of the ordinary course, or unusual.  Although it is clearly the applicant and her partner’s preference that they stay together whilst they save the money to apply for a Partner visa, this does not mean that exceptional circumstances exist for the grant of the visa.

25. Moreover the Tribunal notes that the applicant’s husband returned to Australia alone on more than one occasion following his marriage and then the birth of his son in India. It seems that the parties were content at that time for the applicant, firstly, and then with the parties’ son, to live apart from her husband and to visit him in Australia on temporary Visitor visas.

26. The applicant and her husband have stated that they want to reside together as a family, however, the Tribunal does not consider this is an exceptional circumstance which exists to support the grant of a further temporary visa. The Tribunal considers this evidence against the background that the applicant has already been granted four consecutive Visitor visas whilst onshore; it finds that her wish that she and the children remain onshore with her husband is a natural and expected desire – it is not something unusual, exceptional or singular.

27. Furthermore the applicant and her husband have given evidence that their intention is that the applicant will remain indefinitely onshore or at least until they can afford the application fees for lodging a Partner visa application.

28. The Tribunal has considered the applicant’s other concern – advanced at hearing - about having to return to India during a time of a global pandemic. Whilst COVID-19 is a worldwide phenomenon, the Tribunal accepts the pandemic has played out differently in different countries and the situation is worse in India than in Australia.  Moreover, the applicant is a 34-year-old woman who has not suggested that she or the children are particularly vulnerable or in poor health or are prevented for some other reason from returning to India. 

29. As discussed with the applicant, the Department has provided advice on its website for those applicants who may have difficulties in returning to their country of origin and has indicated it will take those matters into consideration in any visa application (including Bridging visas).

30. Taking into account the applicant’s particular circumstances, the Tribunal is not satisfied the public health situation in India is an exceptional circumstance to support the grant of a further visa.

31. Accordingly, based on the evidence before it and after having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are exceptional circumstances for the grant of the visa. The applicant does not meet the requirements of cl.600.215.

    DECISION

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

    Stephen Conwell
    Member