1517052 (Migration)

[2016] AATA 4071

1517052 (Migration) [2016] AATA 4071 (6 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anjappa ANJAPPA

CASE NUMBER:  1517052

DIBP REFERENCE(S):  BCC2015/3470313

MEMBER:Alison Mercer

DATE:6 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 06 July 2016 at 3:56pm

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 24 November 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).

2. The visa applicant applied for the visa on 23 November 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.215.  The delegate noted that cl.600.215 required that an applicant who applied for a subclass 600 (Visitor) visa in Australia, and for whom the grant of a further visa would result in that applicant staying in Australia consecutively for more than 12 months, had to demonstrate that exceptional circumstances existed for the grant of the visa.  The delegate noted that the applicant had last arrived in Australia on 29 November 2014 as the holder of a subclass 600 visa which was valid until 29 February 2015. He had been granted 2 further subclass 600 visas onshore, the last of which expired on 29 November 2015.  Accordingly, the grant of a further subclass 600 visa to the applicant would result in him remaining in Australia for more than 12 months consecutively.  The delegate noted that the applicant had not given any reasons for wishing to stay for a further period except for putting ‘visitor’ in his visa application. The delegate found that the applicant had not demonstrated exceptional reasons for the grant of the visa.

3. The Tribunal received a review application from the applicant on 10 December 2015.  It was accompanied by a copy of the delegate’s decision.

4. The applicant appeared before the Tribunal on 6 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, Mr Somashekar Anjappa, also an applicant for a subclass 600 visa, whose circumstances were the same as the applicant’s.  With the consent of the applicant and his son, Mr Anjappa, the Tribunal conducted a combined hearing of their review applications on 6 July 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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, which requires exceptional circumstances for the grant of the visa where the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months. Those specified visas are:

   (a) one or more visitor visas;
   (b) a Subclass 417 (Working Holiday) visa;
   (c) a Subclass 462 (Work and Holiday) visa;
   (d) a bridging visa.

8. After a brief introduction to explain the procedural aspects of the hearing, the Tribunal

   confirmed with the applicant that the delegate found the applicant failed to satisfy cl.600.215 of Schedule 2 to the Regulations which requires there be ‘exceptional circumstances’ for the
   grant of the visa sought in his particular circumstances. The Tribunal invited the applicant to
   give his evidence and in particular to give evidence on the question of whether there are
   ‘exceptional circumstances’ in his case.

9. The Tribunal referred the applicant to the Department’s Movement Details (as summarised by the delegate in the Department decision, a copy of which was provided to the Tribunal by the applicant) which show that he first entered Australia on 29 November 2014 as the holder of a subclass 600 Visitor visa, and was subsequently granted 2 further subclass 600 visas on 25 February 2015 and 14 August 2015, the latter valid until 29 November 2015. The Tribunal noted that the applicant applied for a further subclass 600 visa on 23 November 2015, and thus the grant of a further visitor visa to the applicant would mean that he had been in Australia consecutively for more than 12 months and thus had to demonstrate exceptional circumstances to be granted a further subclass 600 visa.

10. The applicant told the Tribunal that he and his son did not have any relatives in Australia, and came to visit in late 2014.  So far, they had spent time in Melbourne and Sydney but they now wanted to visit Adelaide and Brisbane. The applicant said that he and his son wanted to stay for a further 6 to 8 months. When asked how they had been financially supporting themselves in Australia, given that subclass 600 visas do not permit the holder to work, the applicant and his son said that they own rental properties in India and this provides approximately $2,000 per month which they can use to support themselves. If they need more, they ask for further financial support from family in India and it is provided.  The applicant said that his son and daughter in law, his daughter and son in law and his wife remained in India.  The applicant said that he and his son had found things happy and peaceful in Australia and simply wanted to see more before returning to India.  The applicant said that they had made friends in each place they had stayed in Australia and had shared accommodation with friends since arriving.  The applicant’s son said that they had not broken any laws here.

11. The Tribunal explained that while it understood their circumstances, the issue before it at the present time was whether the applicant satisfies cl.600.215, and in particular whether there are ‘exceptional circumstances. It explained that while the term ‘exceptional circumstances’ is not defined in the Act or the Regulations, it is taken to mean circumstances that are out of the ordinary, unusual, or in some way special although not necessarily unique. The Tribunal also explained that the Department’s policy, which is not binding on the Tribunal, indicates that exceptional circumstances may include 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. It explained the Department’s policy also indicates a further example of exceptional circumstances would include a change in the applicant’s circumstances (or the circumstances of an Australian resident) that could not have been anticipated at the time their visitor visa was granted and is beyond the visa applicant’s control and where not granting a visa would cause significant hardship to an Australian resident or citizen. The Tribunal emphasised that the policy guidelines are not an exhaustive statement of what might be considered ‘exceptional circumstances’.

12. The applicant’s son told the Tribunal he and his father’s circumstances did not include any of those listed in the Department’s policy.  He reiterated that they just wished to stay in Australia for longer and would then return to India.  The applicant indicated that he was in good health and was enjoying the time in Australia.

13. The applicant has indicated that he seeks the current subclass 600 visa for the purposes of further travel in Australia with his son. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

14. In considering whether exceptional circumstances exist for the grant of the visa, the Tribunal had regard to, but is not bound by, the guidelines set out in the Department’s Procedures Advice Manual (PAM3). Relevantly PAM3 states:

    If total stay will exceed 12 months

    Exceptional circumstances must exist for granting an FA-600 visa if the period of authorised stay in Australia as the holder of one or more:

    ·visitor visas (that is, FA-600, UD-601 ETA, TV-651 eVisitor and all former equivalents) and/or

    ·Working Holiday (TZ-417) visas

    ·Work and Holiday (US-462) visas and/or

    ·bridging visas

    would exceed 12 consecutive months - 600.215 refers.

    For applications made on or after 21 November 2015, bridging visas are included in the list of visas that count towards the ’12 consecutive months’ referred to in 600.215. (Prior to the inclusion of bridging visas, a new 12 month period began when an applicant “moved” to a bridging visa while awaiting a visa decision, therefore not requiring exceptional circumstances to exist for their extended stay in Australia.)

    Under policy, exceptional circumstances may include:

    ·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.

    If a visa holder:

    ·was in Australia for less than the period authorised by the visa and

    ·is now seeking a further visa

    - for example, a previous Working Holiday visa holder was in Australia for 6 months of their 12 month visa, but left before their visa ceased - consideration should be given to the previous period of stay, the stay period requested and the intent of the visit. An unused stay period on a previous visa may support the applicant’s claims as intending a genuine temporary stay.

    Officers should be mindful of the differences between the conditions of the two visas (for example, work rights), and the policy relating to de facto residence (refer to De facto residence.)

    In all cases where the applicant has recently spent 12 months or more in Australia cumulatively but not consecutively, officers should consider carefully whether the applicant continues to satisfy the genuine temporary stay requirement – refer to Genuine temporary stay. For example, persons returning after a short stay outside Australia and wishing to remain for a significant period may have difficulty meeting the genuine temporary stay requirement.

15. The Tribunal finds that the applicant entered Australia on 29 November 2014 as the holder of a subclass 600 (Visitor) visa. It also finds he was granted 2 further subclass 600 (Visitor) visas while in Australia, the last of which expired on 29 November 2015.  The applicant made his current subclass 600 visa application on 23 November 2015, and was granted a bridging visa A on the expiry of his last 600 visa application, which he has held since that time.

16. The Tribunal finds that the grant of the visa sought would result in the applicant being authorised to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months. In the applicant’s particular case, he has held 3 subclass 600 (Visitor) visas, and a bridging visa A, which are visas specified in cl.600.215.

17. The Tribunal considered the applicant’s circumstances. It accepts that he wishes to spend more time in Australia to visit places he and his son have not yet visited (such as Adelaide and Brisbane). The Tribunal does not find such an aspiration is an ‘exceptional circumstance’ in the sense of it being out of the ordinary or unusual. The Tribunal also considered the applicant’s son’s evidence that neither he nor the applicant had broken any laws in Australia and that they had financial support from India to remain here for longer; however, the Tribunal does not find these particular circumstances to be out of the ordinary or exceptional. It also took into account the applicant and his son’s evidence that they felt happy and peaceful in Australia and thus wanted to stay longer, but once again it does not consider that that circumstance is out of the ordinary or exceptional.

18. Although not bound by the Department’s policy, the Tribunal considered the guidance in it where policy suggests circumstances such as 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, would amount to ‘exceptional circumstances’. There is no evidence before the Tribunal to suggest the applicant falls into the circumstances identified in the Department’s policy, and he conceded that he did not. Further, the Tribunal finds no evidence before it to suggest that there has been a change to the applicant’s circumstances (or the circumstances of an Australian resident) that could not have been anticipated at the time the visitor visa was granted and is beyond the visa applicant’s control and where not granting a visa would cause significant hardship to an Australian resident or citizen.

19. The Tribunal considered the applicant’s circumstances individually, and then cumulatively; however, even when his aggregated circumstances are considered in combination, the Tribunal is still not satisfied that his circumstances can be described as ‘exceptional’.

20. For the above reasons the Tribunal finds that the grant of the visa sought by the applicant in this case would result in the applicant being authorised to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months.

21. In these circumstances, cl.600.215(1) requires there to be ‘exceptional circumstances’ in existence as a condition to the grant of the visa. Having considered all the evidence in this case, the Tribunal is not satisfied that ‘exceptional circumstances’ exist in this case. Accordingly, as cl.600.215(2) applies, cl.600.215(1) must be satisfied. As the Tribunal finds there are not exceptional circumstances in this case, cl.600.215(1) is not met, and the Tribunal therefore finds that cl.600.215 is not met.

22. As cl.600.215 is one of the essential criteria which must be satisfied for the grant of the visa sought by the applicant, and as he does not satisfy it, the applicant is not eligible for the grant of the visa sought.

    DECISION

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

    Alison Mercer
    Member