OWOEYE (Migration) - [2019] AATA 6316

OWOEYE (Migration) [2019] AATA 6316 (28 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Esther Kehinde Owoeye
CASE NUMBER:  1901542
HOME AFFAIRS REFERENCE(S):          BCC2018/5934027 EGOKSN9LDE
MEMBER:Moira Brophy
DATE:28 November 2019
PLACE OF DECISION:  Sydney
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 28 November 2019 at 11:46am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – exceptional circumstances – family assistance – carer for grandchildren – unexpected pregnancy of daughter-in-law – medical issues – not granting visa would cause significant hardship to Australian – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 137L
Migration Regulations (Cth) 1994, Schedule 2, cl 600.215

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918
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 Immigration on 17 January 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 3 January 2019. 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 (the Regulations).
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215. The delegate noted that cl.600.215 required that an applicant who applied for a subclass 600 (Visitor) visa in Australia, and for whom the grant of a further visa would result in that applicant staying in Australia consecutively for more than 12 months, had to demonstrate that exceptional circumstances existed for the grant of the visa. The delegate found that the applicant had not met the requirements of 600.215 because she had not demonstrated exceptional reasons for the grant of the visa.
The applicant, Mrs Esther Kehinde Owoeye appeared before the Tribunal on 21 November 2019 at 9.30 am to give evidence and present arguments. The Tribunal also received oral evidence from the son of the applicant Mr Peter Owoeye. The Tribunal hearing was conducted with the assistance of an interpreter in the Yoruba and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a 54 year…

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.

Continue reading OWOEYE (Migration)

Details

AGLC: OWOEYE (Migration) [2019] AATA 6316
Case: [2019] AATA 6316
Decision Date: 28 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by a Nigerian national for a Subclass 600 Visitor (Tourist Stream) visa. The applicant, who had been in Australia since February 2018, sought a further stay until December 2019, which would result in her being in Australia for more than 12 consecutive months. The primary dispute concerned whether exceptional circumstances existed to justify granting the visa under clause 600.215 of the Migration Regulations 1994, which requires such circumstances when a visa would permit a stay exceeding 12 consecutive months.

The Tribunal was required to determine if the applicant's stated reasons for an extended stay constituted exceptional circumstances. These reasons included supporting her son and daughter-in-law due to an unexpected and medically complicated pregnancy of the daughter-in-law, and caring for her 15-month-old grandson during this period. The Tribunal had to assess whether the presented evidence adequately supported these claims and met the threshold for exceptionality as defined by the Regulations.

The Tribunal reasoned that the applicant's daughter-in-law's unplanned pregnancy, complicated by pre-existing medical conditions and severe pregnancy-related issues, along with the need to care for the young grandson, constituted exceptional circumstances. The Tribunal found these circumstances to be out of the ordinary and unanticipated at the time of the initial visa application. It concluded that refusing the visa would cause significant hardship to the applicant's Australian permanent resident son and grandson. Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under clause 600.215.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant is a 54 year old national of Nigeria who last arrived in Australia on 02 February 2018 as the holder of a FA-600 Visitor (Tourist Stream) visa which remains in effect until 30 January 2019. The applicant has remained in Australia continuously since 02 February 2018. The applicant has made this application on 3 January 2019 requesting a further stay until 30 December 2019 which would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months. To satisfy the requirements for the grant of a visitor visa, the applicant is required to demonstrate that exceptional circumstances exist for grant of the visa. The applicant has stated their reasons for further stay are “To support my daughter in-law and son who is expecting a baby in July 2019. She currently suffers severe pregnancy symptoms resulting in several hospital admissions. I also intend to look after my 15 months old grandson in this time. I believe this will be of tremendous help to them.” In support of this applicant the following documents were provided to the Department : · Copy of applicant’s vaccination records· Copy of applicant’s passport· Statutory declaration of applicant’s son Mr Temidayo Peter Owoeye· Medical certificate from Belconnen Mall Medical Centre· Commonwealth bank statement of Mr T P Owoeye In support of this applicant the following documents were provided to the Tribunal : · Copy of applicant’s vaccination records· Medical history reports of Mrs Funmi Osituyo · Written statement by Representative Mr Isaiah Okorie· Copy of applicant’s passport· Statutory Declaration of age document by Mr Owoeye Peter Akinbode.· Birth Certificate of Jamkwamo Horpjos· Commonwealth bank transaction listing of Mr TP Owoeye· Written statement ‘Evidence of planned tourist activities’ by applicant · Invitation letter by Temidayo Peter Owoeye· Statutory declaration by Funmi Celestina Osituyo· Statutory declaration by Temidayo Peter Owoeye· Birth certificate of Jessy Owoeye· Residential tenancy extension letter by Ken Siva CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this matter is whether cl.600.215 is met for the grant of a visa. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.215, which requires exceptional circumstances for the grant of the visa where the visa would result in the applicant being authorized to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months. The Tribunal finds that the applicant entered Australia on 02 February 2018 as the holder of a FA-600 Visitor (Tourist Stream) visa which remains in effect until 30 January 2019. The applicant has remained in Australia continuously since 02 February 2018. The applicant has made this application on 3 January 2019 requesting a further stay until 30 December 2019 which would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months.

Evidence

Evidence Before The Court

In support of this applicant the following documents were provided to the Tribunal : · Copy of applicant’s vaccination records· Medical history reports of Mrs Funmi Osituyo · Written statement by Representative Mr Isaiah Okorie· Copy of applicant’s passport· Statutory Declaration of age document by Mr Owoeye Peter Akinbode.· Birth Certificate of Jamkwamo Horpjos· Commonwealth bank transaction listing of Mr TP Owoeye· Written statement ‘Evidence of planned tourist activities’ by applicant · Invitation letter by Temidayo Peter Owoeye· Statutory declaration by Funmi Celestina Osituyo· Statutory declaration by Temidayo Peter Owoeye· Birth certificate of Jessy Owoeye· Residential tenancy extension letter by Ken Siva CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this matter is whether cl.600.215 is met for the grant of a visa. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.215, which requires exceptional circumstances for the grant of the visa where the visa would result in the applicant being authorized to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months. The Tribunal finds that the applicant entered Australia on 02 February 2018 as the holder of a FA-600 Visitor (Tourist Stream) visa which remains in effect until 30 January 2019. The applicant has remained in Australia continuously since 02 February 2018. The applicant has made this application on 3 January 2019 requesting a further stay until 30 December 2019 which would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months. The Tribunal finds that the grant of the visa sought would result in the applicant being authorized to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months. In the applicant's particular case, she has held a FA Visitor Tourist Stream visa and a bridging visa A, which are visas specified in cl.600.215. The Tribunal considered the applicant's circumstances as presented to the Tribunal. The Tribunal accepts from the evidence provided that the applicant came to Australia initially to visit her son and daughter in law and their son born September 2017. She came to provide support and intended to depart Australia in January 2019. While the applicant was in Australia her daughter in law became pregnant with her second child. It was an unplanned pregnancy and was complicated by her preexisting medical condition of osteomyelitis as well as pregnancy related issues including hyperemesis gravidarium. Evidence was provided to corroborate these circumstances. The applicant stated in her application she wanted to be with her family to support them and to provide care for her young grandson as her daughter in law was unable to care for him due to the complications of her pregnancy.

Decision

Reasons for decision

Taking into account all the evidence before it the Tribunal is satisfied that the circumstances of this case are exceptional in that the unexpected pregnancy of her daughter in law and the risks accompanying that pregnancy and the need for the child born in September 2017 to be cared for amount to exceptional circumstances in the sense of them being out of the ordinary or unusual. The enormity of the effect on the family of the unplanned pregnancy and accompanying medical issues could not be anticipated at the time of the original application. Not granting a visa would cause significant hardship to an Australian permanent resident i.e. the son and grandson of the applicant if she were to be separated from them at this time. The Tribunal is satisfied therefore that there are exceptional circumstances for the grant of the visa and that the requirements 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.Moira BrophyMember

Ratio Decidendi

Legal Principle Established

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