Lemaistre Brentot (Migration)

[2021] AATA 2842

Lemaistre Brentot (Migration) [2021] AATA 2842 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Veronique Louisette Madeleine LEMAISTRE BRENTOT

CASE NUMBER:  1901014

HOME AFFAIRS REFERENCE(S):     BCC2018/5331899

MEMBER:C. Morfuni

DATE:29 June 2021

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 29 June 2021 at 6.15 pm.

C. Morfuni

Member

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – stay in Australia for more than 12 consecutive months – exceptional circumstances – medical conditions – COVID-19 – 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 8 January 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 who is also the review applicant (referred to in this decision as the applicant,) applied for the visa on 28 November 2018. 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 applicant’s husband applied for the same visa class at the same time as the applicant. He is the subject of a separate Tribunal decision (AAT case number 1901013). Written evidence was submitted by the representative some of which is common to both cases. Where the evidence provided by the applicant and her husband (the parties) deals with the same subject matter, the evidence given in both cases and common submissions by the representative appear in their respective Tribunal decisions.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). 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 and cl. 600.215 in Schedule 2 of the Regulations which allows for the existence of exceptional circumstances for the grant of a visa.

5. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of Clause 600.215 in Schedule 2 of the Regulations, on the basis that the delegate was not satisfied that exceptional circumstances existed for the grant of the visa. This is the issue before the Tribunal.

6. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicant when she lodged the Application for Review on 16 January 2019.

7. The applicant appeared before the Tribunal on 13 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from her son, Mr. Jeremy Brentot. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

8. The applicant was represented in relation to the review by her Counsel Ms. Roz Germov (the representative).

9. The Tribunal decision is made in accordance with the President’s Direction Conducting Migration and Refugee Reviews’ made on 1 August 2018. Paragraph 8.2 of that President’s Direction states:

   As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.

10. The Tribunal had before it the Department and Tribunal Files in both this case and case 1901013 which contained evidence and documents some of which were common to both cases, the relevant legislation being the Migration Act 1958 (the Act), the Migration Regulations 1994 (the Regulations), the migration Procedures Advice Manual 3 (PAM 3), submitted documentation including the most recent response to hearing together with all information and submissions including the post hearing submission dated 1 June 2021 provided on behalf of the applicant and her husband and any oral or written evidence presented prior to the date of this decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether cl 600.215 in Schedule 2 of the Regulations is satisfied if there exist exceptional circumstances, for the grant of the visa.

    Background

13. Where the applicant and her husband are referred to together in this decision, they will be referred to as ‘the parties”. The Tribunal notes that both of the Tribunal’s separate decisions in relation to the applicant (Case no. 1901094) and her husband (Case no.1901093) essentially rely on similar claims and in some respects on identical evidence and submissions.

14. The oral evidence was that:

    ·at the date of the hearing the applicant is aged 62 and her husband is aged 64 (the parties)

    ·the parties travelled together to Australia and arrived in Australia on 10 December 2017 each on a visitor visa valid for 6 months which ceased on 10 June 2018 (the first visa)

    ·on 31 May 2018 the parties were each granted an onshore further visitor visa (the second visa). which were to cease on 30 November 2018

    ·the current visa applications were individually  lodged by the respective parties on 28 November 2018, Subclass 600 (Visitor) Tourist stream, 2 days before the expiry of the second visa and on the day that they each obtained a Bridging A Visa (BVA) on 28 November 2018 which indicated that it was a condition of the BVA that if the applicant wished to depart Australia whilst her visitor(tourist)(subclass 600) application was being processed she would need to be granted a Bridging Visa B (BVB) before she departed

    ·the parties each obtained a Bridging Visa B (BVB) on 15 March 2019.

    ·on 29 April 2019 both parties applied for a Contributory Parent Visa subclass 143 (CPV143)

15. In her final oral submissions at the hearing, the representative canvassed the current Covid 19 Concessions in relation to the CPV143 which at the date of this decision has no end date set by the Minister, which would enable the CPV143 to be granted in Australia if applied for outside Australia if all other visa criteria during the Covid 19 concession period apply (Department of Home Affairs Covid 19 Visa concessions last updated 14 May 2021. Whilst noted by the Tribunal, the concession period regarding that visa application, is not relevant to the current visitor visa under review.

16. In her application for the current short stay, the visa responses document indicates that the applicant stated that her reason to travel to Australia was for 12 months until 27 November 2019 to continue travelling in Australia and to visit and to spend Christmas 2017 with her son and the son’s partner and to travel to Fiji to visit the partner’s family in the New Year. It was clear in the documentation that if an applicant requests a further stay for a visa which results in the applicant staying in Australia for more than 12 months they must demonstrate that there are exceptional circumstances for the further stay.

17. At the date of application for the visa under review, the applicant also stated that she held a Tourist Visa issued on 31 May 2018. The documents in support of that were identity documents for her and her husband, bank financial information for the applicant and letter in support of the application and appointment (signed form 956) of her migration agent referring to both parties but which is filed in the applicant’s husband’s Tribunal file (AAT No.1901093).

18. As at the date of the delegate’s decision the parties had been in Australia for more than 12 months consecutively (10.12.2017 to 8.1.2019 inclusive).

19. As indicated above, the parties obtained a Bridging Visa A (BVA) on 28 November 2018 two days before the expiry of the second visa (visitor).

20. The representative commented at the hearing that the delegate decision was surprising in light of the fact that the parties are a retired couple have adequate funds to support themselves, come from a low-risk country insofar as overstaying and non-compliance with visa conditions, are the parents of an Australian resident child and have no other children. The Tribunal notes that the child to whom reference is made is an adult son who at the date of the hearing was almost 38 years of age and has a partner of several years standing and being the parties’ only son.

21. On 12 May 2021, a day before the hearing, the representative lodged a written submission with the Tribunal in which she indicated that the relevant information was common to both the review applicant and her husband’s concurrent applications (AAT file number 1901013). There were four attachments to the submission and all have been considered by the Tribunal. They include but are not limited to one from the Department dated 29 April 2019, an acknowledgement of the receipt of a valid application for a Contributory Parent (Migration) (Class CA)) Contributing Parent (subclass 143) visa by the parties which was lodged on 27 March 2019 and who were sponsored by their son for the visa. Other attachments included details of the purchase of a motor vehicle by the applicant’s husband on 7 March 2017, an untranslated document submitted in French with no translation (reference to which at the hearing, indicates that it is a copy of the applicant’s husband’s mother’s death certificate) and health cover insurance for overseas visitor health cover for the applicant, an outpatient Peninsula Health appointment document and receipt dated 15 October 2019 for the applicant indicating a broken left wrist and a tax invoice.

22. The representative stated that she only recently became aware of the applicant’s medical condition and could not attend to lodging the submission earlier due to the pressure of other work. The evidence before the Tribunal notes that the medical information filed on behalf of the applicant, indicates that her medical conditions dated back to 2010 and the various medical reports submitted to the Tribunal date back to late 2019.

23. The oral evidence of the Applicant and the medical evidence in relation to her, which is before the Tribunal, in summary, indicates that the applicant had a hysterectomy in 2010 and subsequently suffered a prolapse for which she had surgery in Australia in 2021, that she has had a number of medical reviews and has made a full recovery. The medical evidence further indicates that she has recovered from a broken wrist which occurred in October 2019. At one stage she presented with a post surgery lump under her arm in 2021 and was diagnosed with a possible cyst which it was assumed occurred during her hospital stay and which was referred to another medical practitioner for an opinion. There was no evidence or suggestion before the Tribunal that there is any impediment for her to travel and she advised at the hearing that she had been to France in 2021 with her husband and that they intend to continue to travel around Australia.

24. At the conclusion of the oral evidence, the representative was invited to address the Tribunal and make any concluding comments or submissions. She made the comments and submissions set out below. The representative further lodged a post hearing submission of 1 June 2021 which augmented her oral representations and submissions at the hearing and has been considered by the Tribunal.

    ·the application for the current visa under review was applied for, for the purpose of touring Australia and not for remaining permanently, the parties having now applied separately for the CPV143 and that the two are not mutually exclusive;

    ·that the parties’ intention to tour around Australia was frustrated by events beyond their control including the husband’s mother’s death (on 5 March 2021) requiring him to travel to France, the wife’s medical issues and Covid 19 issues which prevented long distance travel.

    ·Department policies indicate that parents who want to spend time with their children and have a reliable travel history should be given 12 months duration visitor visas and in the present case the parties still wished to tour and do their road trip. Policy emphasises flexibility where there are exceptional circumstances. The Tribunal treats the policy issues as part of the whole of the information and evidence before it, which it considers, but which is not binding on it;

    ·that people’s intentions change and the parties still wish to comply with the conditions and requirements of their visa applications;

    ·the representative canvassed the Covid 19 concession mentioned above, in in relation to which she addressed a number of conditions with which the parties have complied, their financial means and their desire to be with their son although

    ·that until the CPV143 application is determined they wish to travel in Australia;

    ·that a refusal of the current visitor visa application means they would have to return to France and not see Australia and may need to be in lock down;

    ·that there are exceptional circumstances why the visa should be granted

    Exceptional circumstances

25. The representative’s pre-hearing written submission dated 28 November 2018 states that parties originally came to Australia on 9 December 2017 (movement records indicate that they arrived one day later, the discrepancy having no bearing on the outcome of the Tribunal’s decision. to spend Christmas with their son and his partner. Their original visitor visas entitled them to remain in Australia for six months and they were granted a further six months visitor visa onshore on 31 May 2018 They wished to see more of Australia including Central Australia. The Tribunal notes that they were granted a Bridging Visa A (BVA) on 28 November 2018.

26. The submission sets out the requirements pursuant to subclause 600.215(1) and (2) of Schedule 2 to the regulations which require exceptional circumstances to exist for the grant of a visa where that grant would result in the applicant remaining in Australia for a total period of more than 12 consecutive months. She further cites the Department’s policy guidelines of exceptional circumstances that are described as rather traumatic in nature but states that the circumstances are not confined by the wording, to that. As previously indicated, whilst the Tribunal has considered the Department policy guidelines although it is not bound by them.

    ·that the parties wish to see more of Australia.

    ·that on their previous visits to Australia they were constrained by employment related annual leave restrictions to one-month holidays and that they have always complied with visa conditions when they have travelled. They are also in a financial position to continue their travels in Australia and wish to spend another Christmas with their son and his partner and enjoy another Australian summer.

    ·that France is a long way for the parties to have travelled to Australia.

27. At the date of this decision, applying the governing legislation, the parties have remained in Australia for more than 12 consecutive months and wish to have the further current application for a visitor visa granted. They also have a concurrent (see CPV143 application as previously indicated.

28. In her application responses the applicant states that she understands the terms and conditions of the relevant visa and understands the note that “if the request for a further stay results in the applicant being authorised to stay in Australia for more than 12 months …they must demonstrate that they have exceptional circumstances for the further stay and provide details”.

    Conclusions

    The Tribunal has concluded as follows:

    ·In relation to the applicant having travelled a long way with her husband:  

    the oral evidence indicates that the parties have been travelling to and from Australia annually and sometimes more often from France to Australia and back the latest overseas travel having been in March 2021. They have thus always been aware of the distance involved when they chose to travel to Australia having been here previously and as indicated, planning to travel there again. In addition, there has been no assurance at any stage that they would be able to stay in Australia initially for more than six months or to be granted subsequent visas.

    ·Covid 19 issues – the Tribunal notes that the parties most recent visa prior to the one under review, was to expire in December 2019 and since then have been granted bridging visas. The parties appear to have had ample time to depart Australia prior to travel restrictions if any out of Australia and the need for the applicant’s surgery having surfaced. They decided to stay.

    ·As at the date of the delegate’s decision on 8 January 2019 the parties had been in Australia for more than 12 months consecutively (10 12.2017 to 8.1.2019 inclusive).

    ·The oral evidence of the parties confirmed that they have, at the date of this decision, spent four consecutive Christmases in Australia between 2017 – 2020 inclusive. They have had at least two years and sometimes in between those dates, in which to travel within Australia without any restrictions on internal travel due to the Covid 19 pandemic.

    ·The parties have expressed a desire to see more of Australia.

    ·The applicant’s medical condition: the written medical evidence indicates that she has recovered well from her surgeries. The oral evidence indicates that she was not health impeded from travelling to Fiji and return September/October 2019 and to France in March 2021 returning to Australia the same month.

    ·The oral evidence at the hearing indicates that there is now no reason, since the applicant’s mother-in-law passed away and the parties having retired, for them to return to France and that they wish to spend their time with their only son and his partner, living in Australia. The Tribunal notes that the oral evidence at the hearing indicates that there are still relatives in France (eg. the applicant’s husband’s brother).

29. The representative submitted that people are at liberty to change their minds later which does not alter their intentions in relation to their current visitor visa application. The Tribunal has concluded that the parties appear to have planned for some years to emigrate to Australia and accepts the evidence that now the parties wish to emigrate and live permanently in Australia because there is no reason for them to live in France and they wish to spend the rest of their lives with their only son and his partner in Australia. This was submitted as an exceptional circumstance for the grant of the current visitor visa application.

    Findings

30. The issue before the Tribunal is therefore whether or not exceptional circumstances exist for the granting of the visa in relation to each of the matters raised by the parties or their representative claiming that there are exceptional circumstances (at times referred in written submissions as compelling reasons). On the basis of the whole of the evidence and information before it, the Tribunal is persuaded that there is no reason for the parties to return to France and not to be with their only son in Australia, which is his home pending the outcome of their CPV143 application. The Tribunal accepts this as an exceptional circumstance as required by clause 600.215 of Schedule 2 to the Regulations.

    DECISION

1. 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.

   C.Morfuni
   Member