1706291 (Migration)

[2018] AATA 2698

1706291 (Migration) [2018] AATA 2698 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706291

MEMBER:Jane Marquard

DATE:2 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2018 at 1:38pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – Exceptional circumstances – Visa applicant’s medical condition – Dependent on son – Moral and financial support – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 600.211, 600.215

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Wang v Minister for Immigration and Multicultural and Indigenous Affairs. [2005] FMCA 918

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 16 March 2017 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 14 March 2017. 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.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Clause 600.215 requires that where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa.

   EVIDENCE BEFORE DEPARTMENT AND DEPARTMENT’S DECISION

4. The applicant is from Lahore, Pakistan. He has two sons and a daughter in Australia. He was self-employed as a Director of Tariq Services.

5. He provided the following reasons requesting a further stay: ‘after death of my wife, I felt lonely and disturbed by which my health has been affected. I am a diabetic patient from the past few years. Now I feel dizzy and unconscious with a body weakness at times. Hence it is essential that someone looks after me and that I cannot stay at home alone. As no-one is at my home country, at the moment, to take care of me. I want some more time to get better, as recommended by my doctor as well, until I recover properly”. He said that he is over [age] years old and needs the support of his children. His son’s wife cares for him and if he is very sick, his son takes time off work to care for him. His doctor had recommended that he not travel long distances for the next 6 months.

6. His son provided a statement in which he said that his father had been the primary caregiver for his mother prior to her death from [a medical condition]. He is still in shock, and for humanitarian reasons he requests an extension of the visa.

7. A death certificate was provided for the applicant’s wife, date of death 10 March 2016.

8. The delegate of the Department of Immigration and Border Protection (the Department) noted that the applicant had last arrived in Australia on 9 March 2013 as the holder of a TR-676 Tourist visa which ceased on 9 June 2013. Since that date he had remained in Australia as the holder of various bridging visas and multiple FA-600 Visitor-Tourist Stream visas. The applicant has remained in Australia constantly as the holder of three separated FA600 visas and multiple WA-010 Bridging (Class A) visas, since 15 March 2016.

9. The delegate refused to grant the visa on the basis that the visa applicant did not meet 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. While the delegate noted that his circumstances may be regarded as compassionate, the applicant’s circumstances had not changed substantially since the previous FA-600 Visitor Tourist Stream visa application dated 8 December 2016. In that application the application requested a further stay to recover from the health effects of diabetes, and due to the loss of his wife in March 2016. The delegate found that there had not been a drastic change in circumstances preventing the applicant from departing Australia or applying for a different visa. The delegate found that the applicant had not met the requirements of the mandatory clause 600.215 by demonstrating exceptional reasons for the grant of the visa.

   EVIDENCE BEFORE THE TRIBUNAL

10. The applicant provided written submissions to the Tribunal prior to the hearing. He stated that a few years prior to the hearing, he was staying in Australia as the carer of his wife who had [an illness]. He was very attached to her. He decided to stay in Australia to care for her however it was difficult for him as his business is in Pakistan. His business suffered while he was in Australia so he had to make the decision to temporarily cease business activity there. He unintentionally became financially and morally dependent on his son. After his wife died he was devastated as they had been together for 35 years. He went through shock and his medical condition deteriorated. He also needed counselling. Now he is completely dependent on his son financially and for support. He is waiting for his son to be able to travel with him to Pakistan.

11. Dr Surinder Kaur provided a letter dated [in] March 2017 in which he said that the applicant had been visiting him for consultation and treatment for a few months. He was recovering very slowly and needed continuous counselling. As his general practitioner, he recommends he be calm and takes his medicines regularly. He has also referred him to a [specialist] surgeon for tests.

12. The applicant appeared before this Tribunal on 28 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. His son, [Mr A], an Australian citizen, also gave evidence.

13. The Tribunal explained the procedural aspects of the hearing and the criteria for the grant of the visa.

14. The applicant confirmed that he had last arrived in Australia on 9 March 2013 and that the grant of the visa would amount to him staying for a consecutive period of more than 12 months.  He confirmed that he wished to stay in Australia so that his son could care for him as he has diabetes, and also for financial and moral support.

15. The Tribunal confirmed with the applicant that the delegate found that 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 expand on and give evidence in relation to any reasons he believed amounted to exceptional circumstances for consideration.

16. The applicant said that he came with his wife to Australia to visit his children. She had [a] sickness for three to four years. He was very upset when she passed away. He also has high sugar levels and high blood pressure. After his wife’s death, he could not work as he was upset. In Australia he can visit his wife’s grave, and his children can look after him. He said that he would return home at the expiry of his visa, as he will be stable after losing his wife of 35 years. His brother and three sisters live in Pakistan, but he has no house to live in.

17. He is seeing a doctor and having check-ups for diabetes and his [body]. He was asked what his current medical state is as the doctor provided a letter dated March 2017 which was a year prior to hearing. He said that he has sugar and blood pressure problems and forgets things and gets upset. In Pakistan he does not have anyone to look after him, but later he will be fine to return. He wants to live the last days of his life with his children.

18. He was asked if he genuinely intended returning to Pakistan as it appeared from his submissions that he was now dependent on his son, morally and financially and for support with his health, and that he had closed his business in Pakistan. The son said that it is difficult for him to travel because of his condition. His condition is not that good, he misses his wife. He feels that in a year he can settle him down in Pakistan.

19. [Mr A], the applicant’s son, said that he has been in Australia for nine years and is an Australian citizen. When his parents arrived in 2013 it was intended to be a three months visit. There was no intention to stay in Australia. They extended their visit as his sister had an accident. Then suddenly his mother became very ill and for a few years she was sick and their visas were extended. The applicant has diabetes, cannot walk properly and has sugar issues. He has become inactive and upset. He wants his father to settle down, and he is saving some money to settle him in Pakistan. Even though the applicant has a brother and sister in Pakistan, they have their own families and will not be able to assist him.

20. The Tribunal explained that while it understood his 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

22. 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 authorized 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.

23. The 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.

24. 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 the total stay will exceed 12 consecutive months

    Exceptional circumstances must exist for granting an FA-600 visa if the period of authorized 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

25. 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.

26. The Tribunal finds that the applicant entered Australia on 9 March 2013 as the holder of a TR-676 Tourist visa which ceased on 9 June 2013. Since that date he had remained in Australia as the holder of various bridging visas and multiple FA-600 Visitor-Tourist Stream visas. The applicant has remained in Australia constantly as the holder of three separate FA600 visas and multiple WA-010 Bridging (Class A) visas, since 15 March 2016.The applicant made his current subclass 600 visa application on 14 August 2017 and was granted a bridging visa A in association with that visa application.

27. The Tribunal finds that the grant of the visa sought would result in the applicant being authorized 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 a  subclass 600 visa and a bridging visa A, which are visas specified in cl.600.215.

28. The Tribunal has carefully considered the applicant’s circumstances and in particular the evidence that he has been unwell and very upset since the death of his wife two years ago in Australia. The Tribunal accepts that he was married for 35 years, and nursed his wife prior to her death, which has upset him greatly.

29. The term ‘exceptional’ is not defined in the legislation and is given its’ ordinary English meaning. The Macquarie Dictionary refers to ‘exceptional’ as ‘forming an exception or unusual instance, unusual, extraordinary’.

30. The Tribunal is not aware of any specific relevant court authority on the meaning of “exceptional circumstances” in the context of cl.600.215. However, the meaning of exceptional circumstances has been considered in the context of other visa criteria.

31. In An v Minister for Immigration and Citizenship [2007] FCAFC 97 the majority of the Full Federal Court (per Emmett and Lindgren JJ) held that “exceptional circumstances” is a simple, non-technical phrase and should be understood as meaning unusual or atypical.

32. The meaning of “exceptional circumstances” in the context of section 137L of the Act was considered by Walters J in Wang v Minister for Immigration and Multicultural and Indigenous Affairs. [2005] FMCA 918. In particular, the court referred with approval to the comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548 in which she stated:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances……The words “exceptional circumstances” may apply to a variety of circumstances, and no definition which limits their application, should be adopted, unless the limitation appears from the relevant statutory provision.

33. The Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3) in relation to exceptional circumstances, noting that while it provides guidance, it is in no sense binding on the Tribunal. The policy gives examples of exceptional circumstances for authorising a stay longer than 12 consecutive months, including:

    • 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:
    • 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. 

34. Taking into account the ordinary meaning of the words ‘exceptional circumstances’ and the decisions and PAM policy guidance above, the Tribunal is not satisfied that the applicant’s circumstances amount to exceptional circumstance in the sense of them being out of the ordinary or unusual. There is no evidence before the Tribunal to suggest the applicant falls into the circumstances identified in the Department's policy. 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 and where not granting a visa would cause significant hardship to an Australian resident or citizen. While it has no doubt been very difficult for the applicant since the date of his wife’s death, and he has been well-supported by his family in Australia, he has been in Australia for two years since the date of his wife’s death in March 2016 which would have provided his family some time to make arrangements for him in Pakistan. This visa is a visitor visa, for temporary stays only, and the criteria require exceptional circumstances for renewal. The Tribunal is not satisfied that the applicant’s needs, although genuine, ‘form an exception’, or are ‘extraordinary’ or ‘unusual’. Other visas may be more appropriate for this applicant.

35. 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 authorized 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.

36. 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.  As cl.600.215 (2) applies, cl.600.215 (1) must be satisfied.

37. As the Tribunal finds there are no exceptional circumstances in this case, cl.600.215 (1) is not met, and accordingly cl.600.215 is not met and the applicant is not eligible for the grant of the visa sought.

    DECISION

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

    Jane Marquard
    Member