1605542 (Migration)

[2016] AATA 4433

1605542 (Migration) [2016] AATA 4433 (16 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr WILLIAM JOHN SAMPSON

CASE NUMBER:  1605542

DIBP REFERENCE(S):  BCC2016/1392639

MEMBER:Tony Caravella

DATE:16 September 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) (Tourist) (Subclass 600) visa.

Statement made on 16 September 2016 at 12:12pm

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 8 April 2016 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 7 April 2016. The delegate refused to grant the visa on the basis of finding the applicant failed to meet the requirement prescribed in cl.600.215 of Schedule 2 to the Migration Regulations (the Regulations).  Clause 600.215 provides:

   600.215

   (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) visa;

   (d) a bridging visa.

3. The applicant applied to this Tribunal on 21 April 2016 for a review of the delegate’s decision.  A copy of the delegate’s decision record accompanied the application for review.

4. Subsequent to the lodgement for the application for review, and prior to the hearing date, the Tribunal received several submissions from the applicant’s migration agent on behalf of the applicant.  These submissions include written statements by the applicant, and by Chelsea Lawrence who declares the applicant is her long term partner.  Included with these statements are numerous photographs depicting the applicant and Miss Lawrence in various locations.  Several screen prints from what appears to be postings on Facebook or similar are also included. 

5. A brief submission in an email dated 14 September 2015 from the applicant’s migration agent was also received.  In essence, that submission states the applicant wants the visa granted to enable him to continue his travels in Australia.  It is further submitted that the granting of the visa would not adversely affect any Australians.  The agent submits that in her view the applicant is “just doing what any person would be doing at his age, and that is seeing the world and experiencing life and love.”

6. On 15 September 2015, the Tribunal received further submissions.  These include documents evidencing the applicant’s employment, financial, and taxation circumstances.

7. The applicant appeared before the Tribunal on 15 September 2016 to give evidence and present arguments.

8. The applicant was represented in relation to the review by his registered migration agent who also appeared at the hearing.

9. The hearing was conducted by videoconference with the applicant and his agent appearing from the Tribunal’s office in Sydney and the member appearing at the Tribunal office in Perth.

10. After providing introductory comments on the procedures to be followed at the hearing, and after explaining the Tribunal’s understanding of the delegate’s reasons for refusing the visa application, the Tribunal invited the applicant to give his evidence, and in particular his reasons for submitting that exceptional circumstances exist in his case.

11. The applicant began by saying he is in a committed relationship with Miss Chelsea Lawrence.  He said they met in Perth and they have been in a relationship for the past one year and three months. He told the Tribunal that Miss Lawrence is a national of the UK and is currently the holder of a working holiday subclass 417 visa.

12. The applicant said that they have been together continuously since meeting and there has not been one day when they have not seen each other.  He said they are in love.  He then said he is concerned that the relationship may fail if the visa is not granted to him and he is forced to leave Australia.  The applicant told me Miss Lawrence’s visa ceases in June 2017.

13. The applicant’s representative submitted that the applicant wants to travel together with Miss Lawrence while she holds her working holiday visa.

14. The applicant told the Tribunal he has worked so as to pay for the visa application and review.  He said he has enough money to continue his travels.

15. The Tribunal put it to the applicant that while it accepted his evidence that he is in a relationship with Miss Lawrence, and indeed accepts that he may feel deeply for her, the test in this case is whether exceptional circumstances exist for the grant of the visa. The Tribunal referred the applicant to the words that are usually used to define the concept of ‘exceptional circumstances’, including words such as unusual, an exception, out of the ordinary, extraordinary or uncommon.  The applicant then told the Tribunal that in his case the circumstances are exceptional because he loves Miss Lawrence. He went on to say that, he had been single for eight years before meeting Miss Lawrence. He repeated that he has spent every day with her. He added, amongst other things, that he has met Miss Lawrence’s mother when she visited Australia recently.

16. The applicant then told me that it is not his intention to remain in Australia for ever. He said his hope is that if the visa is granted until June 2017, they then plan to return home to the United Kingdom. He said they might travel again to other places after that, however he is not certain about that.

17. The applicant’s representative submitted that the applicant had filled in his own application. She submitted there is now additional evidence before the Tribunal, including that the applicant had been single for eight years. She submitted that the circumstances are exceptional for the applicant.  The applicant’s representative also submitted that it is not ideal to negatively impact Miss Lawrence and that she would have to leave with the applicant if she wanted to remain with him.

18. The applicant then told the Tribunal that there is a possibility that Miss Lawrence would leave with him if he were required to leave in circumstances where this visa application failed. He added that she would have to leave her dream of travelling Australia in order to remain with him.

19. The Tribunal put it to the applicant and to his representative that part of the submission presented to it by the representative is that the applicant is “just doing what any person would be doing at his age, and that is seeing the world and experiencing life and love”.  The Tribunal put it to the applicant that this and all the evidence before it and his described circumstances, tended to indicate that what he is doing is rather common, ordinary, not extraordinary, and not exceptional. It invited comment on this.  The applicant repeated that the circumstances are exceptional for him due to the strength of his relationship with Miss Lawrence.  The applicant’s representative submitted that she would like the visa to be granted to enable the applicant to continue his travels.  She also submitted that it is not Australian to block the visa in this case

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether the applicant meets the criteria in cl.600.215 of Schedule 2 to the Regulations. That is, the issue is whether exceptional circumstances exist for the grant of the visa in the event that 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 prescribed visas for a total period of more than 12 consecutive months. 

22. In reviewing this decision, the Tribunal had regard to, but is not bound by, the Department’s policy guidance which is set out in its Procedures Advice Manual (PAM3) which in respect of cl.600.215 relevantly states:

    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. 

23. It is not in dispute that the applicant first arrived in Australia on this occasion on 25 April 2015.  He entered as the holder of a Subclass 417 working holiday visa.  Nor is it in dispute that the applicant has remained continuously in Australia since arriving here on 25 April 2015.  The Tribunal accepts that the grant of the visa which he seeks would result in the applicant remaining in Australia for a total period of more than 12 consecutive months.

24. The word ‘exceptional’ is not defined in the Act.  However, it is generally taken to mean something that is unusual, uncommon, or out of the ordinary.  The Macquarie Dictionary defines ‘exceptional’ as ‘forming an exception or unusual instance; unusual; extraordinary’.

25. The Tribunal considered all of the evidence in this case.  It accepts and understands that it is the applicant’s strong preference to continue his travels in Australia with Miss Lawrence.  The Tribunal accepts the applicant’s and the agent’s submission that the applicant may well be doing what any person would be doing at his age, and that is seeing the world and experiencing life and love.  However, therein, and coupled with all of the evidence, lies the difficulty with concluding that the applicant’s circumstances are unusual, uncommon or out of the ordinary.  To the contrary, the desire to prolong or extend holidays and travels, especially with a partner or a loved one, is a rather common, if not daily and repeated occurrence.  The Tribunal finds the applicant’s desire to extend his travels with Miss Lawrence in all his circumstances is not an ‘exceptional circumstance’.

26. The Tribunal considered the applicant’s circumstances in the context of the Department’s policy guidelines.  These set down circumstances where the Department considers may amount to ‘exceptional circumstances’.  The Tribunal is not bound by the policy guidelines but may have regard to them.  Having regard to the policy guidelines, the Tribunal finds that the circumstances of this case are not such, and nor are they submitted to be such, that there has been a 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. 

27. The Tribunal also considered whether there has been 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 which is beyond the visa applicant’s control and where not granting a visa would cause significant hardship to an Australian resident or citizen. While it accepts the evidence by the applicant that there has been a significant change in his circumstances as a result of his relationship with Miss Lawrence, it does not find that refusing the grant of the visa would cause significant harm to an Australian resident or citizen. 

28. The Tribunal has some sympathy for the applicant, and accepts that his departure from Australia may give rise to some inconvenience and disappointment.  However, it was not persuaded by his evidence that his departure from Australia would give rise to significant hardship to Miss Lawrence such that it would be an exceptional circumstance. 

29. The Tribunal finds based on the evidence and submissions before it that the applicant’s clear preference is to continue his Australian travels with Miss Lawrence until June 2017.  However, the purpose behind cl.600.215 is clear in allowing visa holders to remain in Australia beyond 12 months where there are ‘exceptional circumstances’.  The requirement for ‘exceptional circumstances’ recognises that an inflexible application of the regulation may not be appropriate in all cases, however, the key that unlocks the waiver of the 12 month rule is the existence of ‘exceptional circumstances’.  Having carefully considered all the evidence and submissions before it, and having regard to the Department’s policy guidance and to the applicant’s particular circumstances, the Tribunal finds nothing in the evidence and circumstances that can correctly lead to a conclusion the exceptional circumstances exist for the grant of the visa.    

30. Having regard to all of the evidence, and for the above reasons, the Tribunal finds the applicant therefore fails to meet the requirement prescribed in cl.600.215.  For these reasons, the Tribunal must affirm the decision under review.    

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) (Tourist) (Subclass 600) visa.

    Tony Caravella
    Member