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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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?

9. 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. 

10. 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.

11. 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.

12. 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.

13. When asked at the hearing what exceptional circumstances exist for the grant of the visa, Mr and Mrs Enomoto provided the following.

14. Mr Enomoto is a member of the Japanese not-for-profit organisation (NPO) known as Japan Neem Association for which he has recently been appointed by the board of members as the next chairperson.  There is an Australia Neem Association which co-operates with its Japanese associate. He said that the NPO aims to support people in poor countries regarding agricultural projects.  When the Tribunal reflected to the applicant that the purpose of the subclass 600 visa was as a Visitor (Tourist), Mr Enomoto responded that he wanted to be in an English-speaking environment as well as being engaged in agricultural pursuits in Australia for his association.  He said that the reason for this was that Australia was “rich in nature.” He emphasised that he “love[s] the nature here.”

15. He said he wished to “observe and study.” When asked specifically what he was referring to, he said that he was studying snails and how they impact on viticulture. He referred to a ‘Neem’ agricultural product derived from an Indian tree. The Tribunal noted that undertaking work in Australia, or study for a period of greater than three months, would be a breach of certain conditions attached to subclass 600 Visitor (Tourist) visa.  He explained in response that he did not intent to do anything unlawful and that his was not a formal type of research, work or study, but that it did entail visiting farms in Australia.  He elaborated that this would be undertaken “for my company” which the Tribunal understood to mean the above NPO, Japan Neem Association. He said that it would cause him some difficulties if he had to “change companies.” The Tribunal places weight on the oral evidence that he is not undertaking formal study or work in Australia and therefore any change of company would not impact adversely on any study or work interests being undertaken.

16. When asked if in refusing the visa, Mr Enomoto could identify any hardship that this would cause to him or any other person including any employer, Mr Enomoto responded “no nothing”.  Mrs Enomoto said that she wishes to support her husband and that they seek to stay on in Australia. She confirmed that they have no children. When questioned about her work role Mrs Enomoto’s employer indicated that her activities were not significant to the operations of the  employer as there was a team of between 15-20 people that could carry out the work.  Mr Beeck said there would be “zero” hardship to the company.  As aforementioned, the work had been described at the hearing as simple administrative duties and seasonal work in the vineyards.Based on Mrs Enomoto’s and Mr Beeck’s oral evidence, which the Tribunal accepts, this points to no particular hardship on the employer by Mrs Enomoto’s absence.

17. In respect of any hardship that would be caused by a loss of opportunity to learn English by ending an extended stay in Australia, the Tribunal does not consider this alone amounts to exceptional circumstances as it is open to the applicant to potentially undertake English language lessons in a developed, western country such as Japan should he return there in circumstances where the visa is not granted. He could also visit another English speaking country (New Zealand) which he made reference to in his oral evidence. The Tribunal considers that the applicant may also consider available alternative migration pathways for this purpose.

18. When further questioned about returning to Japan and any exceptional circumstances should the visa not be granted, Mr Enomoto said that his wife suffers from a bloody nose when she operates a water tap in Japan. This recovered when she came to Australia. The Tribunal considers that Mrs Enomoto may obtain medical attention in a developed country such as Japan and that this is reasonably open to her. This reason alone, is not sufficient in the Tribunal’s view, to amount to exceptional circumstances as the Tribunal considers such medical attention would be reasonably available to Mrs Enomoto for her condition.

19. In further evidence Mr Enomoto conceded that his circumstances may not be classified as “exceptional circumstances under the legal term” but that he and his wife wish to stay on in Australia and wish to undertake a further year visiting New Zealand. The applicant said that he owns a four-wheel-drive vehicle in which he is touring around Australia and that this provides the only chance to have a two year holiday in Australia with his wife. They find life in Australia very attractive.  The Tribunal acknowledges that there would be some difficulty to the applicant if he were to leave Australia and for his wife stay here. The Tribunal considers however, this would be for a short period of a few months to the end of Mrs Enomoto’s working visa, and given this is not a long-term or permanent situation this of itself, does not amount to exceptional circumstances in the Tribunal’s view.

20. Having considered the evidence before the Tribunal including the oral evidence relating to exceptional circumstances presented to the Tribunal discussed above, the Tribunal considers that individually and collectively, the circumstances do not amount to anything that sets the applicant apart to other persons in a comparable situation, or amounting to an atypical or extraordinary or unusual instance.

21. 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

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

    Steve Georgiadis
    Member