MOHAMMED (MIGRATION) - [2024] ARTA 243

MOHAMMED (MIGRATION) [2024] ARTA 243 (11 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ibrahim Mohammed
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2401412

Tribunal:General Member M. Moustafine
Place:Sydney
Date: 11 December 2024
Decision:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 11 December 2024 at 4:58pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – total stay for more than 12 months – two visas held already, totalling of 27 months – exceptional circumstances – supporting daughter during pregnancy – not a purpose of visitor visa – child now born – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.215
CASES
Hatcher v Cohn (2004) 139 FCR 425
Huang v MICMSMA [2020] FCCA 409
Shashidhar v MIBP [2017] FCA 253
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 January 2024 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant, a 48-year-old citizen of India, applied for the visa on 25 November 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 the visa applicant to satisfy the Minister that exceptional circumstances exist for the grant of the visa if the grant of the visa would result in her being authorised to stay in Australia as the holder of one or more Visitor visas for a total period of more than 12 consecutive months.
The delegate refused to grant the visa because he was not satisfied that the applicant met cl.600.215 as he was not satisfied that exceptional circumstances existed for the grant of the visa. Based on the significant amount of time the visa applicant had spent onshore, the delegate found it likely that the applicant was attempting to circumvent proper migration channels and use the visitor visa program to maintain ongoing residence in Australia.
On 29 January 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision, providing a copy for the purposes of the review. The applicant was represented in relation to the review.
On 14 October 2024, the AAT became the Administrative Review Tribunal (ART) (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the…

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: MOHAMMED (MIGRATION) [2024] ARTA 243
Case: [2024] ARTA 243
Decision Date: 11 December 2024

CaseChat Overview and Summary

The applicant, who had previously held two Visitor (Class FA) visas and had been in Australia for a total of 27 months, sought a further 12-month visa to support his daughter, an Australian citizen, during her fourth pregnancy. The Tribunal upheld the decision to deny the visa application, affirming the decision of the Department. The primary legal issue was whether the applicant met the criteria in clause 600.215 of the Migration Regulations, which requires the Tribunal to be satisfied that exceptional circumstances exist for the grant of the visa if the applicant would be authorised to stay in Australia for a total period of more than 12 consecutive months.

The Tribunal found that the term ‘exceptional’ should be given its ordinary meaning, which is unusual, atypical or out of the ordinary. The Tribunal noted that the applicant’s reasons for extending his stay were not considered to be exceptional. The Tribunal concluded that the applicant’s need to support his daughter during her pregnancy was not an exceptional circumstance as it was not unusual or atypical for a parent to support their child during pregnancy. Additionally, the Tribunal found that the applicant’s daughter already had other family members in Australia who could provide support. Therefore, the Tribunal found that the requirements of clause 600.215 were not met.

The Tribunal affirmed the decision to deny the visa application. The Tribunal found that the applicant did not meet the criteria for the grant of the visa, and that there were no exceptional circumstances that warranted a departure from the usual policy. The Tribunal did not accept that the applicant’s need to support his daughter during her pregnancy constituted an exceptional circumstance, as it was not unusual or atypical for a parent to support their child during pregnancy.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether cl 600.215 is met. Clause 600.215 requires the Tribunal to be satisfied that exceptional circumstances exist for the grant of the visa if the grant of the visa would result in the visa 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: one or more Visitor visas, a subclass 417 (Working Holiday) visa, a subclass 462 (Work and Holiday) visa, a Bridging visa. The term ‘exceptional circumstances’ is not defined in the migration legislation and therefore the word ‘exceptional’ should be given its ordinary meaning, which is unusual, atypical or out of the ordinary.[1][1] 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 states that exceptional circumstances 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.[2] [2] 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). The applicant last arrived in Australia on 8 August 2022 on a subclass 600 Visitor visa and on 25 November 2022 was granted another Visitor visa onshore valid until 25 November 2023. He has remained in Australia continuously since his arrival. On 25 November 2023, the visa applicant applied onshore for the Visitor visa currently under review and was granted an associated bridging visa. He sought a further stay of up to 12 months until 25 November 2024. The reason given for his further stay was to support his daughter, an Australia citizen, for her fourth pregnancy. He indicated that his stay in Australia would be self-funded, with additional support from his son-in-law. Documents submitted to the Department in support of the visa application included copies of the biodata and stamped pages of the visa applicant’s Indian passport and his national identity card; a balance confirmation of his account from the State Bank of India; bank statements for his daughter and son-in-law and two of his payslips. A letter from his daughter’s doctor dated 18 November 2023 was also provided stating that she was 15 weeks pregnant with an estimated delivery date of 11 May 2024; and that her early pregnancy-related issues would benefit from the support of her parents, who were in Australia providing care to her and her three young children as she had no other family in Australia.

Decision

Reasons for decision

Accordingly, the Tribunal finds that the requirements of clause 600.215 are not met and that the applicant does not meet the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa. Date of hearing: 5 December 2024Representative for the Applicant: Mr Shamim Ahmed (MARN: 0956076)

Ratio Decidendi

Legal Principle Established

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