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 appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
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 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.
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
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.
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.
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.
The applicant arrived in Australia in January 2020 and was granted a series of visitor visas up until her last application on 25 April 2023 which was refused. The Tribunal is aware that in granting visitor visas during the COVID 19 pandemic the Department considered the particular circumstances of individuals including how flight and border restrictions affected them, as well as conditions in the home country.
While no evidence has been provided as to the reasons for the grant of several visitor visas over a lengthy period, the Tribunal has inferred that some latitude was provided in view of the impact of the COVID 19 in the applicant’s situation.
Initially the reason provided for the request for a further visitor visa in 2023 was because the applicant’s son was studying Year 12 at a school in Sydney. The applicant stated in her application that “I wish to be with him during this important year of his life as he completes his HSC. It is important for me to be here for him emotionally and academically as I believe my presence will have a positive impact on his results.”
The delegate considered the reason provided and found that exceptional circumstances did not exist for the grant of the visa.
After the applicant sought review, she provided medical reports relating to her own orthopaedic surgery and recovery in September 2023 as well as documents relating to the June 2023 diagnosis of a vascular malformation in in her son’s right foot which was causing him a significant amount of pain and disability.
She has not provided any further submissions or an explanation of how these conditions had an impact on her and how they supported her claim that there were exceptional circumstances which existed for the grant of the visa. However, the Tribunal is prepared to infer that these medical conditions did lead to her being required to stay in Australia for a further period. The Tribunal also notes that the applicant departed Australia in November 2023 which indicates that she did have a genuine intention to stay in Australia temporarily and that the extension of her visa period was necessary for the purpose of her recovering from surgery and attending to her son’s medical condition.
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 Nicholls
Senior Member