Mani (Migration) - [2024] AATA 3648

Mani (Migration) [2024] AATA 3648 (4 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Damayanti Mani
CASE NUMBER:  2309486
HOME AFFAIRS REFERENCE:               BCC2023/2546810
MEMBER:Nicole Burns
DATE:4 October 2024
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 04 October 2024 at 10:15am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – authorising stay of more than 12 consecutive months – exceptional circumstances – Australian citizen family medical issues – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.215
CASES
Hatcher v Cohn (2004) 139 FCR 425 439
Huang v MICMSMA [2020] FCCA 409
Shashidhar v MIBP [2017] FCA 253
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 27 April 2023. 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.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.215. The delegate found the circumstances given by the applicant for the further stay did not amount to exceptional circumstances for granting the visa.
The applicant appeared before the Tribunal via video link on 3 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her daughter, Mrs Kristina Power. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CLAIMS AND EVIDENCE
The issue in the present case is whether cl 600.215 is met, which requires the Tribunal to be satisfied 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mani (Migration) [2024] AATA 3648
Case: [2024] AATA 3648
Decision Date: 4 October 2024

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, brought by an applicant who had been in Australia since May 2019. The applicant sought a further 12-month stay, which would result in her being authorised to remain in Australia for more than 12 consecutive months. The delegate refused the visa application, finding that the circumstances presented did not constitute exceptional circumstances as required by clause 600.215 of the *Migration Regulations 1994* (Cth). The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria under clause 600.215 of Schedule 2 to the Regulations. Specifically, the Tribunal was required to determine if there were exceptional circumstances justifying the grant of the visa, given that the grant would authorise the applicant to stay in Australia for a total period exceeding 12 consecutive months. The Tribunal considered the reasons provided by the applicant in her visa application, which initially related to social events, and contrasted these with further information provided to the Tribunal concerning her daughter's significant health issues and fertility treatment.

The Tribunal reasoned that while the initial stated reasons for the visa application were not exceptional, the subsequent information regarding the daughter's ongoing IVF treatment and the applicant's crucial role in providing support constituted exceptional circumstances. The Tribunal noted the daughter's medical conditions, including bilateral lower back pain, chronic osteoarthritis, and fertility issues, and the intensive nature of the IVF process. The Tribunal was satisfied that the applicant's presence was essential for her daughter's well-being and to assist her through the physically and emotionally demanding procedures. Accordingly, the Tribunal found that the requirements of clause 600.215 were met.

The Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria under clause 600.215 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CLAIMS AND EVIDENCE The issue in the present case is whether cl 600.215 is met, which requires the Tribunal to be satisfied 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. The Tribunal notes from the decision of the delegate[1] (and Departmental records, confirmed by the applicant at hearing) the applicant last arrived in Australia on 25 May 2019 holding a visitor visa. She has remained onshore and lodged another visitor visa application (the subject of this review) on 27 April 2023 requesting a further 12 month stay until 27 April 2024. The grant of the visa would therefore result in the applicant being authorised to stay in Australia for more than 12 consecutive months. Accordingly the Tribunal finds that cl 600.215(2) applies in this case, and therefore cl 600.215(1) must be satisfied. Clause 600215(1) provides that, if cl 600.215(2) applies, exceptional circumstances must exist for the grant of the visa. [1] A copy of which was provided to the Tribunal on review. In the visa application form the reason the applicant gave to stay in Australia for a further period was to spend Christmas and New Year here, as well as her daughter’s birthday in January 2024. The delegate accepted that was the case but was not satisfied these events constituted exceptional circumstances. The visitor visa application was refused on 15 June 2023. In an undated letter signed by the applicant and her daughter provided to the Tribunal on review it is stated, among other things, that the applicant’s daughter has several health issues and wanted her mother’s continued support. This included bilateral lower back pain, chronic osteoarthritis of back with canal stenosis, fibroids, and related fertility issues. It is stated the applicant had scheduled appointments with a gynaecologist to discuss possible surgery and with a fertility specialist to discuss IVF options. Several documents were provided to the Tribunal as evidence of Mrs Power’s medical history, current conditions, and various medical appointments. At hearing the applicant said she wants to stay in Australia for a further period of time, primarily to support her daughter who has begun the process of trying to conceive via IVF. She said she did not indicate as such in the visa application form because it was completed by her then agent. Mrs Power told the Tribunal this year she has undergone several tests and ancillary treatment in preparation for IVF to be able to conceive a child. This came about in the context of fertility issues due to having fibroids. Presently she has started hormone injections in preparation for egg collection and other procedures through an IVF clinic in Werribee. This will be her focus over the next twelve months, and she would like her mother to stay with her in Australia to continue to support her, noting it can be hectic, and the various procedures required at times physically overwhelming.

Decision

Reasons for decision

For these reasons, the Tribunal is satisfied there are exceptional circumstances for the grant of the visa in this case. It finds that the requirement of cl 600.215 are met. 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.Nicole BurnsSenior Member

Ratio Decidendi

Legal Principle Established

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