Taussik (Migration) - [2020] AATA 5698

Taussik (Migration) [2020] AATA 5698 (10 September 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Judy Taussik
CASE NUMBER:  1832947
DIBP REFERENCE(S):  BCC2018/4412894
MEMBER:Susan Trotter
DATE OF ORAL DECISION:  10 September 2020
DATE OF DECISION:  10 September 2020
DATE CORRIGENDUM
SIGNED:3 February 2021
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

1. Add the following phrase at the end of the last sentence of paragraph 17 (e)
“home is in the United Kingdom.”

Susan Trotter
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Judy Taussik
CASE NUMBER:  1832947
DIBP REFERENCE(S):  BCC2018/4412894
MEMBER:Susan Trotter
DATE OF ORAL DECISION:  10 September 2020
TIME OF ORAL DECISION:  4:38 pm (QLD time)
DATE OF WRITTEN REASONS:              24 September 2020
PLACE OF DECISION:  Brisbane
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.600.211 of Schedule 2 to the Regulations.
·cl.600.215 of Schedule 2 to the Regulations.

Statement made on 24 September 2020 at 8:13am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – stay in Australia for more than 12 consecutive months – exceptional circumstances –medical conditions – additional risk of COVID-19 to elder persons –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.215

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
G v MIBP [2018] FCA 1229
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 22 October 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).
At the hearing on 10 September 2020, the Tribunal made an oral decision. The following are the written reasons for the decision.
STATEMENT OF REASONS
The applicant applied for the visa on 10 October 2018. 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). Relevantly to this case, they include cl.600.215 which requires the visa applicant to satisfy the Minister that there are exceptional circumstances for the grant of the visa which would result in the applicant being authorised to stay in Australia for more than 12 consecutive months pursuant to certain types of visas. Additionally, cl.600.211 requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose…

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 Taussik (Migration)

Details

AGLC: Taussik (Migration) [2020] AATA 5698
Case: [2020] AATA 5698
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa by an applicant who was a retired United Kingdom citizen. The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which had refused her application. The core of the dispute revolved around whether the applicant intended to stay temporarily in Australia, a key criterion for the visa.

The AAT was required to determine whether the grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months. If so, it then needed to consider whether exceptional circumstances justified the grant of the visa, whether the applicant had substantially complied with the conditions of her last substantive visa or any subsequent bridging visa, and whether she intended to comply with the conditions of the visa being sought. The AAT also had to consider any other relevant matters.

The applicant, aged 71 at the time of the hearing, presented evidence that she had sufficient assets and income in the United Kingdom to support herself and wished to return home. However, she expressed a fear of flying due to COVID-19 and was undergoing significant eye treatment in Australia, which complicated her ability to travel. She also indicated a misunderstanding of visa conditions, leading to her extended stay. The Tribunal found that the applicant met the criteria under cl.600.211 and cl.600.215 of Schedule 2 to the Regulations.

The Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, directing that the applicant met the specified criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It follows that the issue to be determined by the Tribunal is whether The applicant intends to stay temporarily in Australia the purpose for which the visa is granted, having regard to:(a)Will grant of the visa result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more specified visas? And, if so,(b)Are there exceptional circumstances for grant of the visa? And, if so,(c)Has the applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?;(d)Does the applicant intend to comply with the conditions to which the visa would be subject?; and(e)Are there any other relevant matters?CONSIDERATION OF CLAIMS AND EVIDENCE The applicant’s evidence at hearing included as follows:(a) She is a retired citizen of the United Kingdom with assets (including property in the United Kingdom which provides a rental income) and savings sufficient to support herself. She is 71 years of age[1]. She would like to return home but has a fear of flying during COVID-19.(b) She last arrived in Australia. Her visa was granted in October 2016, but she did not come to Australia until June 2017. She was then told that she could extend the visa for another year and she extended until October 2018 and then applied for this visa. She did not understand the system. The application was refused, and she was given a bridging visa. The bridging visa conditions said, “No Travel” and she thought that meant she could not leave Australia until this application was finalised.(c) Whilst awaiting this application result, she has had an ophthalmological check because of very sore eyes. Apparently because she has been wearing contact lenses for years, there has been serious erosion in her eyes. She has commenced treatment for the condition as evidenced by the optometrist’s letter provided to the Tribunal. Part of the treatment included having contact lenses made specially for her and trialling and adjusting them. She is already on her third version. She could possibly have the same treatment in the United Kingdom but now also has the additional complication that flying is not recommended for the condition – as is also covered in the optometrist’s letter (letter from Celia Bloxsom, Optometrist, dated 28 August 2020).(d) She is a retired woman and has visited Australia several times on holidays. She has always complied with the conditions of her visas. She previously only visited for short visits but stayed longer when she last arrived. However, she has never wanted to, and has never sought to, stay in Australia permanently.(e) If COVID-19 was over and her eye treatment was finalised, she would be wanting to return to the United Kingdom, including to see her brother. In the meantime, she has remained in Australia and has been volunteering at the Gold Coast University Hospital. She would continue to seek to visit Australia in the future because she enjoys her time here but her Issue 1 - Will grant of the visa result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more specified visas? [1] The Tribunal observes that the applicant has turned 72 between the date of the Tribunal’s oral decision and the date of these written reasons for decision.

Decision

Reasons for decision

It follows that cl.600.211 and 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.600.211 of Schedule 2 to the Regulations.·cl.600.215 of Schedule 2 to the Regulations.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.