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 AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal by MS Teams videoconference on 5 December 2024 to give evidence and present arguments. The Tribunal also received evidence from the visa applicant’s son-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
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.
At the hearing, the Tribunal explained to the visa applicant that in order to be granted a Visitor visa which would result in him being authorised to stay in Australia for a total period of more than 12 consecutive months, there had to be exceptional circumstances for the visa grant, as stipulated in clause 600.215. The reason the Department had refused his application for a Visitor visa was that they were not satisfied of this.
The visa applicant confirmed his visa history as set out above, including that since arriving in Australia on 8 August 2022 he has remained here continuously for a total period of more than 27 consecutive months. The Tribunal discussed with the applicant that, as the grant of the visa currently under review would result in his being authorised to stay in Australia for more than 12 consecutive months, the Tribunal must be satisfied that exceptional circumstances existed for the grant of the visa.
Noting that the reason he gave for seeking the Visitor visa under review was to assist his daughter and her family during the early stages of her fourth pregnancy, the Tribunal asked if the baby had been born. The applicant said the child was now 6 months old. Asked why he now needed to remain in Australia and when he was planning to return to India, the applicant said he was ready to go home at any time. He said the reason he had remained in Australia was that he did not want a visa rejection which might create problems for him when applying for another visa to visit his family. The Tribunal pointed out that he could have continued with his visa review from India by teleconference and this would have demonstrated that he was not utilising the visitor visa program to maintain ongoing residence in Australia, which was one of the Department’s concerns. The applicant said his representative had not made him aware of this.
The applicant added that he received his visa refusal a few months before the delivery of his daughter’s fourth child. As there were complications with the delivery of her third child, he wanted to be here to look after the other three children in the event of any similar issues. The Tribunal explained that the purpose of a Visitor visa was to enable people to travel to Australia temporarily to undertake tourism, not to provide ongoing childcare or to maintain ongoing residence in Australia through sequential visitor visas. The Tribunal noted that it was not an exceptional circumstance for children to need care and his daughter needed to make arrangements for this from services available in Australia. If he wished to live in Australia to assist her, he might consider other visa options such as a contributory parent visa. The applicant said he understood.
Having considered the visa applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that there are exceptional circumstances for the grant of a further Visitor visa to the applicant.
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 2024
Representative for the Applicant: Mr Shamim Ahmed (MARN: 0956076)