Xia (Migration) - [2024] AATA 3838

Xia (Migration) [2024] AATA 3838 (11 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Feifei Xia
CASE NUMBER:  2309169
HOME AFFAIRS REFERENCE(S):          BCC2023/2495073

MEMBER:Louise Nicholls
DATE:11 September 2024
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 11 September 2024 at 5:53pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – orthopaedic surgery and recovery – attending to her son’s medical condition – medical reports provided – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

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

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
G v MIBP [2018] FCA 1229
Kiefel J in Hatcher v Cohn [2004] FCA 1548
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of the People’s Republic of China (China) and she is 47 years old. She has visited Australia on several occasions and her last arrival in Australia was on 15 January 2020. She remained in Australia from January 2020 until she departed on 17 November 2023.
The applicant held several visitor visas and bridging visas during the period 15 January 2020 to 17 November 2023.
On 25 April 2023 she applied for a further Visitor (Class FA) Subclass 600 visa. She provided a copy of the biodata page of her Chinese passport, her national identity card and two HSBC bank statements with her application.
On 14 June 2023 a delegate of the Minister for Home Affairs refused to grant the applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate found 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 were no exceptional circumstances which existed for the grant of the visa.
This is an application for review of a decision of that decision and it was made on 24 June 2023. The applicant provided further documents to support her application including several medical reports relating to her son’s vascular condition and medical reports relating to her own orthopaedic surgery and discharge. She also provided identity documents and a copy of her boarding pass for a flight to China in November 2023.
On 27 August 2024 the Tribunal wrote to the review applicant inviting her to give oral evidence and present arguments at a hearing on 1 October 2024. On 28 August 2024 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to…

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 Xia (Migration)

Details

AGLC: Xia (Migration) [2024] AATA 3838
Case: [2024] AATA 3838
Decision Date: 11 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by an applicant from China. The applicant sought to enter Australia for orthopaedic surgery and to attend to her son's medical condition. The decision under review was made by the Administrative Appeals Tribunal (AAT).

The primary legal issues before the AAT were whether the grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances existed for the grant of the visa. The applicant applied under the Tourist stream of the Subclass 600 visa, with the relevant criteria set out in clause 600.215 of Schedule 2 to the Migration Regulations 1994.

The AAT found that granting the visa would indeed result in the applicant being authorised to stay in Australia for more than 12 consecutive months. In considering whether exceptional circumstances existed, the Tribunal referred to dictionary definitions of "exceptional" and guidance from the Department's Procedures Advice Manual, which provided examples such as the serious illness of a close family member in Australia requiring the applicant's support. The Tribunal concluded that the applicant had met the requirements of clause 600.215.

Consequently, the AAT remitted the application for reconsideration by the Minister, with the direction that the applicant had met the criterion specified in clause 600.215.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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 was born in China and lives in Xiamen City, Fujian Province. She lists her occupation as assistant professor and stated she has investments, savings and property in China. Her parents are living in China and she is divorced. She has a son who has been attending school in Australia and was in Year 12 in 2023.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 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”. 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 ando is beyond the visa applicant’s control ando where not granting a visa would cause significant hardship to an Australian resident or citizen.

Decision

Reasons for decision

For the above reasons the Tribunal finds that the applicant has met the requirements of cl.600.215. Given this finding the appropriate course is to remit the application to the Minister to consider the remaining criteria for the Subclass 600 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

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