Ng (Migration)

[2024] AATA 3841

Ng (Migration) [2024] AATA 3841 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pei Ying Ng

CASE NUMBER:  2309646

HOME AFFAIRS REFERENCE(S):          BCC2023/2581251

MEMBER:Stephen Witts

DATE:23 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 23 September 2024 at 10:20am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visit family members – staying in Australia for a total period exceeding 12 consecutive months – no exceptional circumstances were provided – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 19 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).

2. The visa applicant applied for the visa on 29 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.

3. 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 600.211, 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.215 because the delegate was not satisfied that the applicant demonstrated sufficient exceptional circumstances for the grant of the visa.

5. The applicant appeared before the Tribunal on 10 September 2024 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the applicant’s son Dr Shin Yap.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

11. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicant.

12. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

13. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision by the applicant dated 19 June 2023.

14. In this decision the delegate asserted that the applicant last arrived in Australia on 29 January 2020 holding a visitor visa which ceased on 29 April 2020 and has remained in Australia continuously since their last arrival. According to the delegate on 29 April 2023 the applicant lodged another application for a tourist visa via the internet requesting a further 12 months which would result in the applicant staying in Australia for a total period exceeding 12 consecutive months. According to the delegate the applicant stated that the reasons for a further stay was to spend time with her only adult child. The delegate assessed this application and made a decision that exceptional circumstances were not demonstrated for the grant of the visa.

15. The Tribunal has also considered material provided by the applicant prior to the hearing.

16. Included was a statement from the applicant received on 2 July 2023 stating that she is a genuine tourist who applied for a tourist visa to stay temporarily in Australia and that spending time with family in addition to tourist activities is an acceptable criterion for the grant of the visa, and that she intends to tour South Australia and visit the wine regions with her son for the next 12 months. She stated that the pandemic created flight restrictions and that she has a home and a husband back in Singapore to return to and that she has sufficient funds to cover her trip.

17. Also included was a statement from the applicant’s son dated 24 June 2023 stating that he invited his mother to come over to Australia to tour South Australia with him and that he is capable of supporting her stay financially and that she has an incentive to return to her home country of Singapore with his father residing there. He stated that he did not wish for this visa refusal to jeopardise her potential future visa applications.

18. Include also was a bank statement in the applicant’s son’s name for an account with a balance of approximately hundred $60,000 as of 26 April 2023.

19. Include also was a tax invoice for the costs associated with apartment management in the name of the applicant for an apartment in Singapore dated 1 April 2023.

20. The Tribunal notes a further submission was provided on 30 August 2024 including letters of support and other material. Included with it was a further submission from the applicant stating that the decision was incorrect and that she is a genuine tourist and that she intends to visit South Australia and its wine regions, that she has a husband in Singapore and that she does not want to jeopardise future applications and trips to Australia. Also included was another submission from the applicant’s son stating that she is a genuine tourist and that he remains capable of supporting her stay financially including providing accommodation. Also included was another submission from the applicant’s son stating that she was stranded in Australia because of the pandemic and international flight restrictions and now that the pandemic is over, he would like to take her on a proper holiday to South Australia.

21. At the hearing the Tribunal had a discussion with the applicant and her son regarding the application.

22. The applicant confirmed that she has made a dozen or so visits to Australia since her son arrived here as a student in 2009. She stated that she is retired now but worked in cabin crew and that she has a husband back in Singapore who travels frequently with his business to various locations including China. She stated that he has also visited Australia on a few occasions most recently early this year. She stated that they usually travelled by themselves due to his work commitments. She stated that she has property back in her home country and wished to return there permanently as a retired person. She stated that she acknowledges that she has been in Australia now for four years but that the pandemic was partly responsible for this and that she has been waiting for some time for this appeal to come up. She stated that she wanted to remain here during this period because her son was still single and that in future, he will have his own family and that she will not need to spend so much time here. She stated that she also wanted to stay and see her son finish his last elements of study.

23. The applicant’s son stated that he first came to Australia in 2009 as a student and successfully completed a Bachelor of Medicine in 2015 and that he now worked full-time in hospitals and that he has obtained his permanent residency. He stated that he was been undertaking further medical study which should be completed shortly.

24. The applicant and her son stated that she just wishes to stay for a few more months up until Christmas and that her husband will join the family at some point, and that they will engage in various tourist activities, the three of them together, and that she and her husband will then return to Singapore permanently and they will visit again from time to time as tourists.

25. The Tribunal had a detailed discussion with the applicant regarding any exceptional circumstances that may be relevant to consider regarding the applicant’s extended stay here noting that she has now been here for almost four and a half years and that the department has refused her application to stay as a visitor based on the requirements of cl 600.215 referring to the lack of demonstrated exceptional circumstances for continuous consecutive grants of a visitor visa.

26. The applicant stated that her son is her only child and that he has been a fantastic student and doctor here in Australia and that she wants to spend more time with him before going home acknowledging that time got away from her here with the pandemic stopping her returning for a time and that she has spent a considerable amount of time after that waiting for this appeal to come up.

27. The Tribunal had a further detailed discussion with the applicant and her son noting that exceptional circumstances are most often accepted as such based on a genuine need for specific reasons of hardship, for example ongoing health issues of a serious nature, that would warrant a further consecutive stay in Australia, and that the applicant could have easily returned to her home country over the last two years since the pandemic and then applied for a further visitor visa noting that she has made a number of visits to Australia over the years and that she returned within the currency of her previous visa grants.

28. The Tribunal has considered the evidence carefully and finds that no exceptional circumstances were provided to demonstrate that the applicant should receive a further visitor visa in accordance with the considerations outlined in cl 600.215, specifically that if the visa was granted it would have been for a total period of more than 12 consecutive months and no exceptional circumstances were provided in evidence to waive that requirement.

29. The Tribunal therefore finds that the applicant has not met the requirements of cl 600.215.

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Stephen Witts
    Member