Pastam (Migration)

[2020] AATA 1704

Pastam (Migration) [2020] AATA 1704 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Laxmi Durga Pastam

Mr Rajesh Kahanna Pastam and Mrs Laxmi Durga Pastam

CASE NUMBER:  1922372 and 1922436

HOME AFFAIRS REFERENCE(S):          BCC2017/3755496 and BCC2017/3755293

MEMBER:Linda Holub

DATE:18 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2020 at 10:18am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – Federal Circuit Court  remittal – genuine temporary stay criterion – continue touring – exceptional circumstance doesn’t exist– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.215

CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Carrascalao v Minister for Immigration and Border Protection (2017) FCAFC I 07

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decisions made by a delegate of the Minister for Immigration on 16 October 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are a wife and husband who are nationals of India.  They applied for the visas on 13 October 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants 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 (the Regulations). Relevantly to this case, they include cl.600.215 which requires that exceptional circumstances must exist for a visa applicant to be granted a visa for a total period of more than 12 consecutive months.

4. The delegate refused to grant the visas on the basis that the visa applicants did not meet cl.600.215. In their applications the visa applicants requested a further stay until 17 April 2018.  They were originally granted their Visitor visa (FA600) on 1 April 2016 and arrived in Australia on 18 October 2016.  The delegate was not satisfied that exceptional circumstances exist. 

5. The applicants sought a review of the Department’s decisions and those decisions were affirmed by a differently constituted Tribunal on 6 December 2018.  They subsequently sought judicial review of the Tribunal decisions.  The matters were remitted to the Tribunal.  The Federal Circuit Court noted that:

   “The First Respondent concedes that the decision of the Tribunal is affected by jurisdictional error in the Tribunal’s findings that the Applicant:

   (a) did not satisfy clause 600.211 (a) of the Migration Regulations 1994 (Cth) (Regulation) because he had not complied with the conditions of his last substantive visa was not supported by logically probative material: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 36.

   (b) did not engage in an active intellectual process directed at clause 600.211(b) of the Regulations: Carrascalao v Minister for Immigration and Border Protection (2017) FCAFC I 07 at [45].  In particular, the Tribunal’s findings that the Applicant did not intend to comply with future conditions to which the Visitor (Class FA) visa would be subject could not be reasonably be drawn from the material before the Tribunal in the absence of reasons”[1].

   [1] Tribunal file 1922372, folio 24 and Tribunal file 1922426

6. On 13 August 2019 the Tribunal contacted the review applicants and confirmed their postal address, preferred email address and preferred contact number.  On the same day, the Tribunal wrote to the applicants advising that the review application had been remitted to the Tribunal by the Federal Circuit Court.

7. On 21 January 2020 the applicants were invited to a hearing to be held on 17 February 2020 to be held at 2.00pm.  The Tribunal intended to address the issues of relevance to their applications in a combined hearing.  The applicants were requested to provide any additional documents or information that they wished to be relied on to the Tribunal by 10 February 2020.

8. The 21 January 2020 the invitation letters state that should the applicants not be able to attend the hearing they should advise us as soon as possible.  The state that the Tribunal will only change the date of the hearing if it is satisfied that they have a very good reason for not attending.  It explains that if the Tribunal does not advise that an adjournment has been granted, the applicant must assume that hearing will go ahead.  The applicants were advised that if they did not attend the hearing the Tribunal may make a decision on the case without taking any further action to allow or enable them to appear before the Tribunal or may dismiss their applications for review without any further consideration of the applications or the information before the Tribunal.

9. On the afternoon of 15 January 2020 the applicant husband called the Tribunal about the couple’s combined hearing.  He stated that he and his wife are overseas and they will not be returning until March 2020 and asked that the hearing be postponed.  He was asked to put the request in writing.

10) At 8.04 pm on Friday 14 February 2020, the Tribunal received an email from the applicants stating that they are in India and that they are returning to Australia on 5 March 2020.  No evidence of their return was provided.  They stated that as they are unable to attend the hearing they sought an adjournment until after 5 March 2020.

11) At 9.27 am on the morning of Monday 17 February 2020, the Tribunal wrote to the applicants indicating that the request for a postponement was declined.  The letter indicated that as the applicants are unable to attend in person, the Tribunal would conduct the hearing by telephone.

12) The Tribunal attempted several times to contact the applicant by telephone throughout the morning of 17 February 2020 and the message given was the phone number was disconnected.  The Tribunal also attempted to contact the applicants at the commencement of the hearing and at 2.30pm and received the same message.

13) At 2.38 pm the applicant husband called the Tribunal and provided an Indian phone number for the hearing.  The Tribunal took oral evidence from the visa applicants by telephone.  The hearing was an undertaken with the assistance of an interpreter in the Telegu language that was also on the telephone.

14) For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

15) The issue in this case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that exceptional circumstances exist which would justify the grant of a visa for a visa applicant to be granted a visa following a total period of more than 12 consecutive months in Australia.

16) The applicants lodged an online application seeking an extension of the Visitor visa first granted to them on 1 April 2016.  They arrived in Australia on 18 October 2016.  On 20 January 2017 they were granted further Visitor visas which were to cease on 15 May 2017 in respect of the applicant wife and 12 May 2017 in respect of the applicant husband. On 12 and 15 May 2017 they were both granted an extension until 18 October 2017.  From the time of their arrival in October 2016 they remained onshore until 12 December 2019.

17) In both their applications for the further extension until 17 April 2018, they stated that the reason for the extension was further touring to Tasmania and Cairns and to spend Christmas and New Year Australia.  They also stated that they would love to celebrate their seventh wedding anniversary in Australia on 2 February 2018. Both applications referred to the applicants having funds for their further touring in Australia. 

18) At hearing, the Tribunal noted that in their applications that they wanted to continue touring and to spend Christmas, New Year and their wedding anniversary in Australia.  Both applicants confirmed that this is correct.  The Tribunal put to them that they have now spent an additional two years in Australia and asked what the exceptional circumstances now are.

19) The husband applicant stated that all he wants is to continue to tour Australia because he likes Australia.  When asked where he wishes to tour, he stated that he would like to see Tasmania.  The Tribunal put it to him that was the explanation they put forward two years ago.  In response, he stated that he wants to cover as many places as he can.  The Tribunal asked the applicant wife, if she had anything to add to the exceptional circumstances put forward by her husband.  She responded that she had nothing to add.

20) The Tribunal put it to the applicants that wishing to continue touring does not appear to be an exceptional circumstance.  The applicant husband repeated the want to continue touring and to see a lot of places.  The Tribunal again explained that to be granted an extension beyond the 12 consecutive months that exceptional circumstances must exist and asked both applicants if there were any other factors they wished the Tribunal take into consideration. The Tribunal explained the importance of the existence of factors that could be considered to be exceptional circumstances to the decision it must make.  The husband applicant repeated that their desire and wish is to tour.  He stated that nothing is as important to them as continuing to tour Australia.  The applicant wife had no further comment to make.  The applicant husband stated they returned to India in December for the sake of a son’s birthday. 

Findings

21) The Tribunal considered the reasons the applicants stated at the time of application for the further extension until 17 April 2018.  The Tribunal is prepared to accept the applicants wanted to spend Christmas and New Year 2017/2018 in Australia.  The Tribunal is also prepared to accept they wanted to celebrate their seventh wedding anniversary in Australia on 2 February 2018.  Their movement records show they were in Australia at that time.  The Tribunal is prepared to accept the applicants wanted to visit Tasmania and Cairns.  It appears that did not visit Tasmania as they stated they still want to do so.  No evidence was provided by the applicants that they had toured Cairns. Regardless, the Tribunal is of view that none of these reasons constitute exceptional circumstances.

22) No written submissions were made to the Tribunal.

23) In the course of the applicants’ hearing their only claim of exceptional circumstances is that they want to continue touring Australia.  The Tribunal was not satisfied that wishing to tour Australia is an exceptional circumstance.

24) For the above reasons the Tribunal is not satisfied that the applicants have put forward exceptional circumstances that would justify the grant of a visa for a total period of more than 12 consecutive months and finds that the requirements of cl.600.215 are not met.

DECISION

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

Linda Holub
Member