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 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.
Mrs Power said she also has been diagnosed with chronic back pain which resulted in recurrent disc prolapses. She has improved since she gave up physical work (in warehouses) and exercises more, although chronic pain remains.
Mrs Power confirmed her mother lives with her along with her husband, and brother in a house she owns in Melbourne. She moved to Australia in 2003 based on her marriage to her first husband. She is now an Australian citizen.
The applicant said after she spends some further time in Australia supporting her daughter through IVF, she plans to return to her home in Fiji. Although she is a widow and her two children reside in Australia, she has some relatives in Fiji including a brother and two sisters.
FINDINGS
The Tribunal has considered if, in the applicant’s case, 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 term ‘exceptional circumstances’ is not defined in the migration legislation and therefore it should be given its ordinary meaning, which is unusual, atypical or out of the ordinary.[2]
[2] Huang v MICMSMA [2020] FCCA 409, where the Court found that the Tribunal gave proper sense and meaning to the expression ‘exceptional circumstances’ in accordance with the relevant legal authorities, including Hatcher v Cohn (2004) 139 FCR 425 439 at [49] – [50] and Shashidhar v MIBP [2017] FCA 253 at [22] – [27], by stating that the word ‘exceptional’ meant unusual, atypical or out of the ordinary (at [18] and [23]).
Departmental policy gives some indication about what may constitute exceptional circumstances in such cases. This may include an unanticipated change in an applicant’s circumstances (or the circumstances of an Australian citizen or permanent resident) that are beyond the applicant’s control and are extraordinary; or if an applicant is required to stay in Australia to provide assistance or support due to the death, serious illness or serious medical condition of a close family member in Australia.[3] Court authority indicates however, that there is no limitation on what may constitute ‘exceptional circumstances’ and that term may apply to a variety of circumstances.[4]
[3] POLICY – MIGRATION REGULATIONS – SCHEDULES – [Sch2Visa600] Subclass 600 (Visitor) visa - If total stay will exceed 12 consecutive months – clause 600.215 (re-issue date 27/01/23).
[4] Hatcher v Cohn [2004] FCA 1548 (at [50]), Shashidhar v MIBP [2017] FCA 253 at [27].
The Tribunal accepts the applicant wishes to remain in Australia to help support her daughter who is attempting to have a child via IVF. Based on the medical evidence provided it accepts her daughter has had issues with fertility due to the presence of fibroids and related health problems. The Tribunal also accepts the applicant’s daughter has chronic back pain due to osteoarthritis which although improved (due to ceasing physical work and exercises) persists. The Tribunal accepts the applicant provides emotional and at times physical support to the applicant as she prepares for and embarks on IVF and would like to continue to do so for around another year. Mrs Power acknowledged at hearing that it is difficult to indicate how long she may undergo IVF, and that it may not be successful: nonetheless her mother’s support either way is crucial during this period.
The Tribunal is satisfied such circumstances can be considered exceptional. If the applicant had to leave Australia shortly, whilst her daughter is in the process of trying to have a child through IVF in the context of chronic health and fertility issues, this may cause significant hardship to the applicant’s daughter, who is an Australian citizen.
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 Burns
Senior Member