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
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STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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

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.

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Details

AGLC: Patel (Migration) [2022] AATA 436
Case: [2022] AATA 436
Decision Date: 1 March 2022

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Visitor), brought by the applicant. The central dispute revolved around whether the grant of the visa would result in the applicant being authorised to remain in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances justified such a grant. The decision was made by Senior Member Louise Nicholls of the Tribunal.

The legal issues before the Tribunal were twofold: first, whether the grant of the visa would lead to the applicant being authorised to stay in Australia for a period exceeding 12 consecutive months, as contemplated by clause 600.215(2) of the Migration Regulations 1994; and second, if that condition was met, whether exceptional circumstances existed to warrant the grant of the visa. The applicant sought to satisfy the primary criteria under the Tourist stream of the Subclass 600 visa.

The Tribunal reasoned that the evidence established that granting the visitor visa would indeed result in the applicant being authorised to stay in Australia for more than 12 consecutive months. In considering the meaning of "exceptional circumstances," the Tribunal referred to dictionary definitions, noting that it signifies something unusual or extraordinary. The Tribunal accepted that exceptional circumstances were present in this case, citing the applicant's family situation, including the death of grandparents in their home country, the current pendency of their parents' working visa review applications in Australia, and the absence of other family support in their home country.

Consequently, the Tribunal was satisfied that the applicant met the criterion under clause 600.215 of Schedule 2 to the Regulations. The Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration with the direction that the applicant meets this specific criterion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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 NichollsSenior Member

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsiderationCONSIDERATION 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. 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. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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 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. 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. His wife’s parents live in the United States. 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. 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? 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? The Tribunal accepts that exceptional circumstances exist for the grant of the visa. 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”.