Patel (Migration)

[2022] AATA 436

Patel (Migration) [2022] AATA 436 (1 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Freya Patel

CASE NUMBER:  1927501

HOME AFFAIRS REFERENCE(S):          BCC2019/4265325

MEMBER:Louise Nicholls

DATE:1 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration with the direction that the applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

·Cl.600.215 of Schedule 2 to the Regulations.

Statement made on 01 March 2022 at 4:19pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – grant of visa would result in applicant being authorised to stay for more than 12 months – exceptional circumstances required – child born in Australia – previously living in home country with grandparents, now deceased – now living in Australia with parents whose application for review of refusal of working visas is in progress – other grandparents living in third country and no other family members in home country – “exceptional circumstances” – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.215

CASE
An v MIAC [2007] FCAFC 97
Drake v MIEA [1979] 24 ALR 577
G v MIBP [2018] FCA 1229
Hatcher v Cohn [2004] FCA 1548
MILGEA v Gray [1994] 50 FCR 189
Wang v MIMIA [2005] FMCA 918

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of India and is nine years old. Her parents are present in Australia and have applied for Regional Employer Nomination visas (Subclass 187). At the time of the Tribunal hearing their applications had been refused and they had applied to the Tribunal for review.

2. The applicant initially lived with her parents in Australia but has travelled between her grandparents in India and parents in Australia several times. She last arrived in Australia on 30 August 2018 and was the holder of a Visitor (Class FA) Subclass 600 visa.

3. On 27 August 2019 an application was made on the applicant’s behalf for a further Visitor (Class FA) Subclass 600 visa. Identity and financial documents were provided with the application as well as a statement made by the applicant’s father.

4. On 11 September 2019 the delegate of the Minister for Home Affairs refused to grant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act) visa on the basis that the grant of the visa would have resulted in the applicant being authorised to stay in Australia for more than 12 consecutive months and there being no exceptional circumstances which existed for the grant of the visa.

5. This is an application for review of that decision, and it was made on 30 September 2019.

6. The applicant’s father appeared before the Tribunal on 8 October 2021 to give evidence and present arguments on the applicant’s behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

7. The Tribunal exercised its discretion to hold the hearing by MS Team video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration

   CONSIDERATION

9. The issue in the present case is whether the grant of the visitor visa will result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances exist for the grant of the visa.

10. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

11. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

12. Under the heading “Common Criteria” for all streams of visitor visas, cl.600.215 provides:

    (1)  If subclause (2) applies—exceptional circumstances exist for the grant of the visa.

    (2)  This subclause applies if the grant of the visa would result in the 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:

    (a)  one or more visitor visas;

    (b)  a Subclass 417 - Working Holiday visa;

    (c)  a Subclass 462 - Work and Holiday (Temporary) visa;

    (d)  a bridging visa. 

    Background

13. The applicant’s father gave evidence that he was 35 years old and was born in Gujarat State, India. His parents have passed away and he has one younger brother who is living and working in Gujarat.

14. He and his wife married in 2006 and now have two children, one of whom is the applicant. Both children are currently living in Australia with their parents.

15. His wife’s parents live in the United States.

16. The applicant’s father attended school and university in Gujarat. He stated he obtained a Bachelor of Commerce degree in India. He first came to Australia as a student and studied auto mechanics. He obtained a further student visa in 2015 and he, his wife and the applicant have applied for Regional Sponsored Migration Scheme (Class RN) Subclass 187 visas.

17. At the time of the Tribunal hearing the applications for visas had been refused and they had applied for review at the Tribunal. Following the hearing the applications for review had been affirmed and the applicants have now sought judicial review in respect of those applications.

    Would the grant of the visa result in the applicant being authorised to stay in Australia as a visit visa holder for a total period of more than 12 consecutive months?

18. The evidence before the Tribunal indicates, and the Tribunal finds, that if a further visit visa was granted this would result in the applicant being authorised to stay in Australia as a visit visa holder for a total period of more than 12 consecutive months.

    Do exceptional circumstances exist for the grant of the visa?

19. The Tribunal accepts that exceptional circumstances exist for the grant of the visa.

20. The Macquarie Dictionary meaning of exceptional is “forming an exception or unusual instance; unusual; extraordinary”. The Oxford Dictionary notes the meaning as “Of the nature of or forming an exception; out of the ordinary course, unusual, special”.

21. The Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3) in relation to exceptional circumstances, noting that while it provides guidance, it is in no sense binding on the Tribunal. The policy gives examples of exceptional circumstances for authorising a stay longer than 12 consecutive months, including:

    ·     the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support

    ·     a change in the applicant’s circumstances (or the circumstances of an Australian resident) that:

    o    could not have been anticipated at the time their visitor visa was granted and

    o    is beyond the visa applicant’s control and

    o    where not granting a visa would cause significant hardship to an Australian resident or citizen. 

22. The Tribunal is not bound by policy. However, in the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities[1], that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.

    [1] Drake and Minister for Immigration and Ethnic Affairs [1979] 24 ALR 577 and Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 50 FCR 189

23. The Tribunal is not aware of any specific relevant court authority on the meaning of “exceptional circumstances” in the context of cl.600.215. However, the meaning of exceptional circumstances has been considered in the context of other visa criteria.

24. In An v Minister for Immigration and Citizenship [2007] FCAFC 97 the majority of the Full Federal Court (per Emmett and Lindgren JJ) held that “exceptional circumstances” is a simple, non-technical phrase and should be understood as meaning unusual or atypical.

25. The meaning of “exceptional circumstances” in the context of section 137L of the Act was considered by Walters J in Wang v Minister for Immigration and Multicultural and Indigenous Affairs. [2005] FMCA 918. In particular, the court referred with approval to the comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548 in which she stated:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances……The words “exceptional circumstances” may apply to a variety of circumstances, and no definition which limits their application, should be adopted, unless the limitation appears from the relevant statutory provision.

26. The applicant is a nine-year-old child. The applicant has been living with her parents and younger sister in Australia since she last arrived on a visitor visa on 30 August 2018. The evidence before the Tribunal is that she is currently enrolled in primary school. The applicant’s father gave evidence that his parents are deceased, and his wife’s parents live in the United States. He provided copies of his parent’s death certificates.

27. When asked about the previous care arrangements for the applicant, the applicant’s father stated that the applicant was born in Australia when he and his wife were new in Australia. They thought that his parents were better able to care for the applicant in India and that she would learn something about Indian culture. However, his father passed away in 2015 and his mother passed away in 2018. After his mother’s death he arranged to have the applicant brought back to Australia in 2018.  He gave evidence there is no one else to care for the applicant in India.

28. The applicant’s father told the Tribunal that the Subclass 187 applications were refused because the business nomination was refused. When asked why he thought the refusal decision was wrong he stated he was hoping to get another sponsor or look at other options.

29. When the applicant’s father was asked what he would do if he and his wife were not successful in their appeals, he stated they would make a decision at that point in time but would like the applicant to be granted a further 12 months so they could consider the family’s situation generally.

30. The Tribunal accepts that the applicant’s circumstances are unusual and out of the ordinary.

31. While the Tribunal accepts that parents will sometimes make arrangements for grandparents to care for their minor children in the parent’s country of origin, it is unusual and out of the ordinary that the applicant’s carer grandmother passed away while the applicant was in her care and that she was subsequently brought to Australia after the applications for Subclass 187 visas were lodged.

32. If she had been present in Australia when her parents made the application for Subclass 187 visas, in which she was included as an applicant, the Tribunal considers that she would have been entitled to a bridging visa A or C. However, she was the subject of a care arrangement between her parents and grandparents which resulted in her not being present in Australia when the applications were made but later being present in Australia while the family awaited the outcome of the appeals process.

33. The Tribunal considers the applicant’s circumstances are unusual and out of the ordinary in the context of being a minor child present in Australia whose application for judicial review is still current but who has no entitlement to a bridging visa unlike her parents and younger sister.

34. The Tribunal also considers it is in the applicant’s best interests to remain with her parents and sister while she awaits the outcome of her parent’s and her own application for judicial review. The Tribunal accepts the evidence that the applicant’s grandparents were providing care for her prior to 2018 but they have passed away and she has no suitable alternative arrangements outside Australia.

35. Accordingly, the Tribunal is satisfied that the grant of the visa would result in the applicant being authorised to stay in Australia for a total period of more than 12 consecutive months as the holder of a visa or visas set out in cl.600.215 (2) and that exceptional circumstances exist for the grant of the visa.

    DECISION

36. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration with the direction that the applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

    · cl.600.215 of Schedule 2 to the Regulations.

    Louise Nicholls
    Senior Member