Echereodo (Migration)

[2022] AATA 250

Echereodo (Migration) [2022] AATA 250 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Patience Uzoamaka Echereodo

REPRESENTATIVE:  Mrs Gloria Ozougwu (MARN: 1387546)

CASE NUMBER:  2003176

HOME AFFAIRS REFERENCE(S):          BCC2020/33100

MEMBER:Mark Bishop

DATE:1 February 2022

PLACE OF DECISION:  Melbourne

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 01 February 2022 at 10:22am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant staying in Australia over 12 months – exceptional circumstances – visa applicant assisting daughter after childbirth – visa applicant overstayed her last visit due to exceptional circumstances in pandemic – return to Nigeria for family funeral – demands on health care workers – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 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 15 February 2020 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 applied for the visa on 6 February 2020. 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 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.215 she did not satisfy the exceptional circumstances criteria.

5. The applicant appeared before the Tribunal on 1 February 2022 to give evidence and present arguments. The applicant’s solicitor also made submissions to the Tribunal.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.215 is met. It is set out immediately below:

   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.

9. The delegate made the following findings:

   My decision is based on the following factors

   “The applicant last arrived in Australia on 06 March 2019 as the holder of a FA-600 (Visitor-Tourist) visa, which remains in effect until 06 March 2020. The applicant has remained in Australia continuously since their last arrival on 06 March 2019. On 06 February 2020 the applicant lodged an application for a FA600 Visitor- Tourist Stream visa via the internet. The applicant has requested a further stay until 13 January 2021, which would result in the applicant staying in Australia for a total period exceeding 12 consecutive months. To satisfy the requirements for the grant of a visitor visa, the applicant is required to demonstrate that exceptional circumstances exist for grant of the visa. The applicant has stated their reasons for further stay are “I need my mother to assist me in looking after my 4weeks old baby while I continue my studies”. No further reasons were provided.

   I have considered the applicant’s claims and I am not satisfied that exceptional circumstances exist for the grant of the visa.

   As such, I am not satisfied the applicant meets clause 600.215.

   Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.215in Schedule 2 of the Migration Regulations.”

10. The applicant made a written submission to the Tribunal. This submission addressed exceptional circumstances and as stated in the submission “the exceptional circumstances as presented by the applicant was that the applicant wanted to assist her daughter in looking after her children including her 4 weeks old baby while she completes her study.”

11. The submission went onto address the following:

    ·The applicant overstayed her last visit due to exceptional circumstances beyond her control.

    ·Applicant currently resides in Nigeria (her home country) as has been living in that country since December 2020.

    ·Applicant remained in Australia because she had an unfinalized application in the AAT but left in December 2020 to attend the funeral of her mother in Nigeria.

    ·Applicant sought to extend her visa in order to look after her 3 grandchildren, especially one who was only 4 months old at the time.

    ·The applicant’s daughter (an Australian citizen) was unable to look after her Australian born children. Coupled with work, health and study this amounted to physical and psychological stress for the applicant’s daughter.

    ·It was very difficult curing the period of lockdown. Childcare was not available and there were no international flights.

    ·Pandemic has been unprecedented.

12. The applicant made reference to the ICCPR and the CROC.

13. The applicant provided a copy of a letter from Mill Park Super Clinic dated 24 June 2021 that stated a Mrs Chinonso Anosike was being investigated  for tiredness and muscle pain.

14. In evidence the applicant advised as follows:

    ·She was born in 1961 and has 7 children and 12 grandchildren. She is now a widow. She is retired from work. She helps look after 3 of her children in Nigeria and 12 grandchildren.

    ·She has visited Australia on numerous occasions since 2012 and always adhered to relevant visa conditions. An examination of the relevant movement records confirmed this submission.

    ·A most recent overstay was caused by Covid-19 and unavailability of flights to Nigeria for a lengthy period of time. During that time the applicant held the relevant bridging visa and her stay was lawful.

    ·The applicant has been visiting Australia since 2012 to assist in the child raising of her 5 grandchildren in Melbourne.

    ·In this review application the applicant’s daughter is married and both her and her husband are employed. The presence of the applicant will assist to relieve family pressures, particularly those around childcare as the applicant’s 3 grand children are only young (9, 7 and 2 years of age).

    ·During her stay the applicant will (naturally) live with her daughter and daughter’s family and assist in household duties and child dare. This is to be expected and the Tribunal does not draw any adverse finding.

    ·The applicant’s daughter is a health care worker at the Royal Melbourne Hospital and in the period of lockdown and Covid-19 was working lengthy hours and carrying out a lot of overtime at the request of her employer because of serious unavailability of alternate labour. Because of demands of her employer the applicant’s daughter put the health and welfare of others as a priority. In those circumstances it is to be expected there would be an unusual and arguably unrelenting set of demands on the time of the applicant’s daughter

15. The applicant through her solicitor argues that the combination of circumstances that arose out of Covid-19 (known of course to all but amounting to travel prohibitions, inordinate demands on the time and support of health care and associated serviced industry workers, continuing disruption to normal family life not caused by the immediate members of the family unit and the increased and continuing demands of community sacrifice on the part of critical health care workers) caused  a need for assistance not normally encountered in families with both partners working. Because of demands of her employer the applicant’s daughter put the health and welfare of others as a priority. The applicant’s daughter could only assist others in the community (though the time allocation of her healthcare and nursing skills to her employer) because she had onsite assistance from her mother in the family home. In those circumstances it is to be expected there would be an unusual and arguably unrelenting set of demands on the time of the applicant’s daughter.  The direct consequence of highly unusual time and work demands on the part of the applicant’s daughters employer leads to the necessity to consider “exceptional circumstances”. These circumstances are rare. The mere existence of Covid-19 or lockdown or cessation of international flights or high levels of demand by an employer as an individual factor does not amount to an exceptional circumstance. It is the aggregation of all or the totality of the situation that amounts to “exceptional circumstances”.

16. The Tribunal is satisfied the combination of circumstances as outlined in this decision (and in particular this paragraph) amounts to exceptional circumstances within the meaning of cl.600.215.

17. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.215 are met.

    DECISION

18. 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.

    Mark Bishop
    Member