Hudecova (Migration)

[2021] AATA 191

Hudecova (Migration) [2021] AATA 191 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Denisa Hudecova

CASE NUMBER:  1935657

HOME AFFAIRS REFERENCE(S):          BCC2019/6060637

MEMBER:Irene O’Connell

DATE: 22 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 January 2021 at 12:32pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – applicant previously held one or more visitor visas – exceptional circumstances for grant of visa – COVID-19 more widespread in home country than in Australia – applicant not in vulnerable category – 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 28 November 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). She applied for a Visitor visa on 19 November 2019.

2. The applicant first arrived in Australia on 28 January 2015 as the holder of a Student visa. On 6 December 2018 she was granted a Work and Holiday visa which ceased on 6 December 2019. On 19 November 2019 she applied for a further Visitor visa. This was refused and is the subject of this review. The applicant is currently the holder of a Bridging visa pending the outcome of the review.

3. The delegate refused the grant of the visa on the basis that the visa applicant did not meet cl.600.215. Clause 600.215 requires the visa applicant to satisfy the Minister that if the visa 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.

   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.

4. The legislation does not define exceptional circumstances, but Department policy does give examples of exceptional circumstances which may warrant the granting of a temporary stay which is longer than 12 consecutive months. These examples include serious illness or death of a close family member in Australia where the visa applicant is required to provide support, where not granting the visa would cause significant hardship to an Australian citizen or resident.

5. The applicant through her representative provided a written submission to the Tribunal dated 5 November 2020. In this submission the applicant advises that she initially applied for a further Visitor visa in order to undertake tourism in parts of Australia she had not yet seen. However with the onset of the COVID-19 pandemic she states it is not safe for her to return home to Slovakia. The applicant provided statistical details indicating that the COVID-19 pandemic is more widespread and less controlled in Slovakia than in Australia. As such her risk of infection should she return home is higher than if she remained in Australia.

6. The applicant appeared before the Tribunal via telephone link on 17 December 2020 to give evidence and present arguments. The applicant’s representative  was present at the hearing. The applicant reiterated her desire to remain in Australia because of the COVID-19 pandemic.

7. As discussed with the applicant at the hearing the Tribunal is not satisfied that there are exceptional circumstances for granting her a further Visitor visa. The COVID-19 pandemic is a worldwide phenomenon. The Tribunal accepts the statistical analysis provided by the applicant indicating that the pandemic has played out differently in different countries. However the applicant is a young woman; she has not suggested that she is vulnerable or in poor health or prevented from returning to Slovakia. As such the Tribunal does not accept that there are exceptional circumstances for the grant of a further Visitor visa.

8. Accordingly the Tribunal is not satisfied that there are exceptional circumstances for the granting of the visa. As such, the applicant does not meet the requirements of cl.600.215.

   DECISION

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

   Irene O’Connell
   Senior Member