Patel (Migration)

[2021] AATA 3778

Patel (Migration) [2021] AATA 3778 (21 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Devam Ileshkumar Patel

CASE NUMBER:  1924512

HOME AFFAIRS REFERENCE(S):          BCC2019/2324030

MEMBER:Stephen Witts

DATE:21 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 21 September 2021 at 1:33pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – visitor stream – applicant had stayed in Australia for a total period of more than 12 consecutive months – exceptional circumstances don’t exist – genuine temporary stay criterion–decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.215

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 12 August 2019 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 30 April 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.

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 there were exceptional circumstances that warranted the grant of the visa.

5. The applicant, a minor, appeared before the Tribunal on 21 September 2021 to give evidence and present arguments. The Tribunal notes that he was represented by his father Mr Ilesh Patel.

6. This matter was heard concurrently with case number 1924513, Mr Ayush Patel, as the applicant in that matter was the brother of the applicant in this matter, and that the matter was identical, and that he was also represented by his father.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issue in this case is whether cl 600.215 is met, which requires the Tribunal to be satisfied that there are exceptional circumstances that warrant the grant of the visa.

   cl.600.215 of the Regulations state:

   (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 (Working Holiday) visa;

   (d)  a bridging visa.

8. According to the delegate’s decision record dated 12 August 2019 provided to the Tribunal by the applicant, the applicant (a minor) lodged an application for a visitor visa (tourist stream) on 25 July 2018. According to the delegate the applicant requested a further stay until July 2019 and stated that the reason was to spend further time with parents and visit places until school starts in a few months. According to the delegate the applicant was granted a visitor visa in August 2018 which ceased on 6 May 2019. According to delegate the applicant has remained in Australia continuously since his last arrival on 6 May 2018. According to the delegate the applicant lodged a further application for a visitor visa requesting a further stay for another 12 months

9. until April 2020 which would result in the applicant staying in Australia for a total period exceeding 12 consecutive months. The delegate noted that to satisfy the requirements for the grant of a visitor visa the applicant is required to demonstrate that exceptional circumstances exist for the grant of the visa.

10. According to the delegate the applicant stated the reasons for a further stay are that the applicant’s parents have applied for an onshore subclass 187 visa and as they were waiting for an outcome of this application they wanted their children to stay with them onshore and spend time with them to show them around Australia. According to the delegate prior to the applicant’s first arrival in Australia his parents had applied for a regional sponsored migration scheme 187 visa including the applicant as a dependent applicant. According to the delegate while in Australia the applicant applied for a bridging visa in association on two occasions respectively on 27 March 2019 and 16 April 2019. According to the delegate these applications were refused because the applicant did not satisfy clause 030.212.

11. According to the delegate in June 2019 the department contacted the appropriate registered agent to advise that no exceptional circumstances existed for the grant and therefore offered the applicant an opportunity to withdraw his visitor visa application. According to the delegate the applicant was requested to provide a response but did not do so. According to the delegate it acknowledged that the applicant is a minor but also noted that he has remained in Australia since May 2018 to spend time with his parents and that such visitors to Australia must not remain in Australia on an ongoing basis on visitor visas.

12. At the hearing the Tribunal had a discussion with the applicant’s father who had previously stated that he wished to speak on behalf of his sons one of whom is the minor applicant, Devam Patel, in this matter. Mr Patel stated that he wishes his children to stay with himself and his wife here in Australia as he has an appeal pending before the Tribunal as a result of a rejected subclass 187 application that he and his wife have been pursuing in Australia. He stated that he and his wife as well as his children and the applicant in this matter are on bridging visas. He stated he and his wife first arrived here in Australia in 2014 on student visas and that between 2014 and 2018 his two children lived with their grandparents in India. He stated that his parents are 65 and 62 years old and looked after his children for four years while he and his wife were here in Australia. He stated that they are no longer “physically okay” and that therefore would find it difficult to look after his two children.

13. He further stated that there were exceptional circumstances that now exist to warrant the grant of a visitor visa in excess of 12 consecutive months because of circumstances that now exist in India with the pandemic and with his parents not being in a physical state to now look after the children and that his oldest son is now in year 12 and his youngest (the applicant in this particular matter) is in year 7. He stated that he would like a visitor visa for his two sons so that later he can put them on student visas for their further education as he wants them to study properly here in Australia on such visas. He confirmed that his oldest son was now 18 and therefore not a minor.

14. The Tribunal notes that legislation does not define exceptional circumstances, but also notes that department policy does give examples of exceptional circumstances which may warrant the granting of a temporary stay which is longer than 12 consecutive months. Under this policy, exceptional circumstances may include the death, serious illness or serious medical condition of a member of the applicant’s close family in Australia, in circumstances where the applicant is required to stay in Australia to provide assistance or support or that there was a change in the applicant’s circumstances or the circumstances of an Australian resident that could not have been anticipated at the time when the visitor visa was granted and is beyond the applicant’s control and when not granting a visa would cause significant hardship to an Australian resident or citizen.

15. The Tribunal has considered the applicant’s evidence very carefully in this matter and is concerned that the applicant’s father, on their behalf, has provided evidence to the Tribunal that the Tribunal does not find coherent or credible. It is noted that he stated that he acknowledged that his two sons lived with his parents in India for several years at least up until 2018 but that they were no longer in a fit state to look after his children. The Tribunal notes that no actual evidence of a medical nature was provided in regard to this matter and also notes that in any case the eldest son is 18 years of age and is therefore an adult. The Tribunal also notes that it was asserted that he did not want his sons to go back to India because of the pandemic but also notes that the pandemic also exists in Australia and that this is a worldwide phenomenon in any case.

16. The Tribunal also notes the evidence provided in regard to the applicants father’s visa history noting that he has been here since 2014 originally on a student visa but is now pursuing a subclass 187 business visa which was refused by the Department but that is now going through an appeal process.

17. The Tribunal finds, after careful consideration, that the applicants could in fact return to their home country of India noting that the eldest son is now 18 years old and the younger son, Devam, the applicant in this particular matter, is now 13 years old and could return home to India to be with his grandparents or other family as he was for several years from 2014. The Tribunal after careful consideration did not find the evidence of the applicant’s father that the grandparents could not look after his sons as credible but instead finds that it was a justification utilised so as to attempt to rule out that option.

18. Accordingly, the Tribunal is not satisfied that no exceptional circumstances have been provided to warrant the grant of the visa.

19. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are not met.

    DECISION

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

    Stephen Witts
    Member