1504541 (Migration) - [2016] AATA 3757

1504541 (Migration) [2016] AATA 3757 (23 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MASATAKA ENOMOTO
CASE NUMBER:  1504541
DIBP REFERENCE(S):  BCC2015/767129
MEMBER:Steve Georgiadis
DATE:23 April 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 23 April 2016 at 7:31pm

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 12 March 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 10 March 2015. 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(b), which requires the visa applicant to satisfy the Minister that in circumstances where the applicant is to stay in Australia for more than 12 consecutive months, exceptional circumstances exist for the grant of the visa.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215(b) because the delegate considered there was no evidence that exceptional circumstances existed for the grant of the visa.
The applicant appeared before the Tribunal on 27 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse Mrs Mai Enomoto and from employer, Mr Callan Beeck. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.
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(b) is met, which requires the Tribunal to be satisfied that, in circumstances where the applicant proposes to stay in Australia for more than 12 consecutive months, exceptional circumstances exist for the grant of the visa.
Mr Enomoto last arrived in Australia on 10 May 2014 as a holder of a subclass 417 Working Holiday visa. This is a second Working Holiday visa in Australia, the first being in 2007 for a period of one year. There is no dispute that his proposed stay in Australia will extend beyond the period of 12 consecutive months and in these circumstances, the Tribunal has considered whether exceptional circumstances exist for the grant of the visa.
Do exceptional circumstances apply?
Departmental policy contained within its Procedures Advice Manual (PAM) provides guidance on the interpretation of "exceptional circumstances", although the Tribunal has exercised care in applying PAM3 such that it is not raised to the level of a legislative requirement.
With reference…

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 1504541 (Migration)

Details

AGLC: 1504541 (Migration) [2016] AATA 3757
Case: [2016] AATA 3757
Decision Date: 23 April 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Enomoto, who sought a Visitor (Class FA) visa. The dispute centred on whether Mr Enomoto met the requirements of clause 600.215(b) of the Migration Regulations, which mandates the existence of exceptional circumstances for granting a visa where the applicant intends to stay in Australia for more than 12 consecutive months. Mr Enomoto had previously spent a year in Australia on a Working Holiday visa in 2007 and had arrived again on 10 May 2014 on a second Working Holiday visa, with his proposed stay exceeding 12 consecutive months.

The primary legal issue before the Tribunal was to determine whether "exceptional circumstances" existed in Mr Enomoto's situation to justify the grant of the visa. The Tribunal considered departmental policy guidance, the ordinary meaning of "exceptional" as unusual or extraordinary, and judicial interpretations of the term. These interpretations indicated that exceptional circumstances could arise from factors that set an individual apart from others in a comparable situation and that the consideration was not limited to the applicant's personal circumstances but could extend to impacts on other parties, such as a nominating business.

The Tribunal reasoned that while Mr Enomoto's wife held a working visa and was employed as a seasonal worker and in administrative duties in Western Australia, and they were married, these circumstances did not rise to the level of "exceptional" as required by the regulation. The Tribunal accepted that the applicant's proposed stay would exceed 12 consecutive months, but concluded that the evidence presented did not demonstrate circumstances that were unusual or out of the ordinary to the extent required. Consequently, the Tribunal found that the requirements of clause 600.215(b) were not met.

The Tribunal affirmed the decision not to grant Mr Enomoto a Visitor (Class FA) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether cl.600.215(b) is met, which requires the Tribunal to be satisfied that, in circumstances where the applicant proposes to stay in Australia for more than 12 consecutive months, exceptional circumstances exist for the grant of the visa. Mr Enomoto last arrived in Australia on 10 May 2014 as a holder of a subclass 417 Working Holiday visa. This is a second Working Holiday visa in Australia, the first being in 2007 for a period of one year. There is no dispute that his proposed stay in Australia will extend beyond the period of 12 consecutive months and in these circumstances, the Tribunal has considered whether exceptional circumstances exist for the grant of the visa.Do exceptional circumstances apply? Departmental policy contained within its Procedures Advice Manual (PAM) provides guidance on the interpretation of "exceptional circumstances", although the Tribunal has exercised care in applying PAM3 such that it is not raised to the level of a legislative requirement. With reference to the Macquarie Dictionary, “exceptional” is defined to mean “forming an exception or unusual instance; unusual; extraordinary”. The concept of “exceptional” has been the subject of some judicial consideration by the Courts, with it being understood as meaning “unusual” or “atypical” or “out of the ordinary”. In Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918, Walters J also considered the meaning of “exceptional circumstances” in the context of section 137L of the Act. In particular, Walters J referred with approval to the comments of Kiefel J in Hatcher v Cohn [2004] FCA1548 in which Kiefel J stated that the term is one which may have a wide operation. Also, that factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. In Jia v MIAC & Anor [2011] FMCA 422, Burchardt FM held that the Tribunal had not had regard to a submission about the effects on the employer's business if the applicant ceased working for it. The Tribunal accepts that consideration is not limited to the particular applicant’s circumstances but may include, for example, any impact on the nominating business if the visa applicant is not successful in their application. In the present case, the visa applicant wishes to stay in Australia with his wife who has a working visa to work in Australia. The Tribunal accepts the evidence that they married on 14 November 2013. Mrs Enomoto is engaged with Labour Solutions, a labour hire company in Western Australia who engages workers to work as seasonal workers in vineyards and other operations. She is working in such operations including in the vineyard as a seasonal worker and also administrative duties which were described at the hearing as simple administrative duties.

Decision

Reasons for decision

For the above reasons the Tribunal is satisfied that in circumstances where the applicant proposes to stay in Australia for more than 12 consecutive months, exceptional circumstances do not exist for the grant of the visa and finds therefore, that the requirements of cl.600.215(b) are not met.DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Steve GeorgiadisMember

Ratio Decidendi

Legal Principle Established

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