1512891 (Migration)

[2016] AATA 3502

1512891 (Migration) [2016] AATA 3502 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stuart David Naden

CASE NUMBER:  1512891

DIBP REFERENCE(S):  BCC2015/2543868

MEMBER:Suhad Kamand

DATE:9 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 09 March 2016 at 3:44pm

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 4 September 2015 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The visa applicant applied for the visa on 1 September 2015. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215. The reason given by the applicant for seeking further stay in Australia, at the time of application, was “travel and play cricket in australia (sic).

3. The delegate found that the visa applicant did not meet cl.600.215 because grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more visitor visas or a subclass 417 Working Holiday visa, in circumstances where the delegate was not satisfied that exceptional circumstances for the grant of the visa exist. 

4. The applicant appeared before the Tribunal on 4 February 2016 to give evidence and present arguments. He gave the Tribunal the contact details for Heath Busch and Martyn Nelson who he said could confirm the truth of what he has said. As the Tribunal has no doubts about the truth of the applicant’s evidence the Tribunal did not consider it necessary to contact the proposed witnesses.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether cl.600.215 is met. This clause requires there to be exceptional circumstances for the grant of the visa if the grant would result in the applicant being authorised to stay in Australia for more than 12 consecutive months.

6. Information before the Tribunal indicates that the applicant arrived in Australia most recently on 4 October 2014 as the holder of a Subclass 417 Working Holiday Visa. He has not departed Australia since that time.

7. In an online application for further stay on a Visitor visa, lodged on 1 September 2015, the applicant sought to extend his stay in Australia until 20 April 2016, giving the reason for the extension as “Travel and play cricket in australia (sic)”. No further reasons were given.

8. At the time of the delegate’s decision, no further information had been submitted, and the delegate was not satisfied, on the information provided, that there were exceptional circumstances for the grant of the visa.

9. In support of the review application additional information was provided including:

   a.A letter from the visa applicant explaining that he has sought to extend his stay in order to compete in the forthcoming cricket season which will run until April 2016. He refers to his selection to play Frist Grade cricket with the Club Dubbo CYMS Cricket Club, and to various competitions he will be involved in including representing Western Zone Country NSW Cricket in games against first grade sides around Australia. He also refers to his voluntary work coaching under 16s cricket.  He refers to his relationship with his Australian girlfriend, Ashleigh Faucett, who he would like to spend the summer with before they travel together to England in April 2016. He indicates that he lives with a family in Dubbo and that family’s son is living with his family in England.

   b.A letter from Ashleigh Faucett confirming that they have been in a relationship since 4 July 2015, that she lives in Orange, and that she and the visa applicant intend to travel to England together in April 2016 after which they intend to find their own home together.

   c.A letter from Heath Busch confirming that the applicant has been living with his family, paying a weekly rent, and that the Busch family is happy for this arrangement to continue until April 2016;

   d.A letter from Dubbo CYMS Cricket Club verifying the applicant’s involvement with the club, including that: in the 2014/15 season he competed in the Club’s Whitney Cup side (First Grade), acted as coaching co-ordinator will all the Club’s teams and earned $5000 for that work; volunteered as a coach for the 7-10 year old team and visited schools to promote cricket. The letter highlights his achievements in the Club. It also details his proposed cricket commitments for 2015/16, including coaching the under 16s club junior side, the 7-10 year olds, and promoting cricket in schools.

   e.A letter from Western Zone Cricket to the effect that the applicant “is a cricketer of some not within our area and is involved with our senior Western Zone team which competes in the NSW Country Championships, the season extending from 12 September 2015 to the end of March 2016 involving elite players.

10. During his hearing the applicant impressed the Tribunal as forthcoming and truthful in his evidence. He offered, without prompting, that his relationship with Ms Faucett recently ended. He confirmed that he continues to play first grade cricket for the above-mentioned club and that the season will end in the last week of March 2016. He said that a presentation will follow in the first week of April 2016, on around 4 April, and he would like to be present for that. He said that he is now willing to leave earlier in April than he first proposed, with his new proposed departure date being around 10 April.

11. He told the Tribunal that he continues to coach the under 16s team but that he no longer coaches the 7-10 year olds due to his commitments with the under 16s. He said that his coaching comprises one-on-one training with the boys, and assisting the head coach. He confirmed that he continues to promote cricket in country schools, doing this together with Martin Nelson who can attest to this. He said that he is also the president of his cricket club and when the captain of his team is unavailable he steps into that role. He also assists his club by inputting statistics onto their website and he is also on the Club Committee. He said that he also looks after 2 young boys whose mother was working nightshift. He thinks she is a midwife. He said that their mother has now reduced her nightshift work and if the applicant is not available the boys stay with their grandmother or other people. He said that they will make other arrangements when he leaves.

12. He conceded that all of his commitments in Australia are temporary and that other arrangements will have to be made by the club when he finally departs, which he accepts he will have to do. He said that after he leaves he intends to have a member of his English club come to Australia on a Working Holiday visa to continue assisting the club in Dubbo, and to promote a relationship between these two clubs.

13. The Tribunal asked the applicant what his team would do if he or another member of his team is injured or unwell and cannot play during the competition ending in March 2016. He said that they would select a person from a lower grade to step in, however those players do not receive the same training, although they may include a former first grade player who is now too old to play first grade cricket routinely.

14. In considering whether there are exceptional reasons for the grant of a visa which would extend the applicant’s stay in Australia for significantly over 12 months, the Tribunal is mindful that there is no fixed list of circumstances which are considered exceptional. All circumstances must be taken into account. The Tribunal is also mindful of Departmental policy, which, while not binding, provides useful guidance and examples of what circumstances may be considered exceptional. The examples offered by Department policy are “death or serious illness of a close family member in Australia, where the visa applicant is required to provide assistance or support, or an unexpected change in circumstances beyond the applicant’s control, where not granting the visa would cause significant hardship to an Australian resident or citizen.”

15. Based on the evidence before it, the Tribunal accepts that the applicant has been and remains an active member and an asset within his cricket club, the local Dubbo community, and regional cricket generally. The Tribunal considers that, should his stay in Australia not extend until mid-April 2016, the consequences for his community and cricket club would be inconvenient and undesirable. However, the Tribunal does not consider the hardships or consequences, even cumulatively, to rise to the level of exceptional circumstances.

16. Taking into account all the evidence before it, the Tribunal is not satisfied that there are exceptional circumstances for the grant of the visa and finds that the requirements of cl.600.215 are not met.

    DECISION

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

    Suhad Kamand
    Member