Alfasi (Migration)

[2018] AATA 1415

Alfasi (Migration) [2018] AATA 1415 (23 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ron Alfasi

CASE NUMBER:  1720232

DIBP REFERENCE(S):  Bcc2017/3041877

MEMBER:Jane Marquard

DATE:23 April 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 23 April 2018 at 8:27am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Entered Australia on a Subclass 462 Working Holiday visa – Wished to travel further in Australia – No response to hearing invitation – Tribunal made its decision on review – Exceptional circumstances – Unable to discuss the applicant’s circumstances – Applicant out of Australia at the time of the application

LEGISLATION
Migration Act 1958 s 65

Migration Regulations 1994 Schedule 2 cls 600.211, 600.215, 600.411

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Wang v Minister for Immigration and Multicultural and Indigenous Affairs. [2005] FMCA 918
Hatcher v Cohn [2004] FCA 1548

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 30 August 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 23 August 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 stated in his application to the Department that he is from Izrael Valley, Israel. He is unmarried. He said that as soon as he finished his army service in Israel as a logistic officer, he travelled to Australia in August 2016 on a working holiday visa.

5. He stated in his application form that his reasons for requesting the visa extension were to ‘travel more in the east coast, and through the west coast’.

6. The delegate of the Department of Immigration and Border Protection (the Department) noted that the applicant had last arrived in Australia on 24 September 2016 as the holder of a US-462 (Work and Holiday) visa which ceased on 24 September 2017. He is currently the holder of a Bridging visa A granted in association with his FA 600 application. He has remained continuously in Australia since his last arrival on 24 September 2016.

7. 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. 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

8. On 20 February 2018 a letter was sent to the applicant at the email address provided by him to the Tribunal in connection with the review. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 March 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing nor did he contact the Tribunal to explain his failure to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. Departmental movement records indicate that the applicant left Australia on 28 December 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. As the applicant did not appear at the scheduled hearing, the Tribunal was unable to discuss his evidence with him. In particular the Tribunal was unable to discuss with him his reasons for stay and why he believed these amounted to exceptional circumstances.

12. 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.

13. 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.

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 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

15. 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.

16. The Tribunal finds that the applicant entered Australia on 24 September 2016 as the holder of a subclass 462 Work and Holiday Visitor visa. It ceased to be in effect on 24 September 2017. The applicant made his current subclass 600 visa application on 23 August 2017 and was granted a bridging visa A in association with that visa application.

17. 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 462 visa and a bridging visa A, which are visas specified in cl.600.215.

18. The Tribunal has considered the applicant's circumstances as provided in his Department application. The visa applicant has sought this visa to ‘travel more in the east coast, and through the west coast’.

19. 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’. 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.

20. 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.

21. 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.

22. 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. 

23. The Tribunal is not satisfied that wishing to travel further in Australia amounts to exceptional circumstances 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. 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. Further there are no other circumstances which amount to circumstances which are out of the ordinary or unusual.

24. The Tribunal considered the applicant's circumstances and is unable to be satisfied that his circumstances can be described as 'exceptional'.

25. 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.

26. 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.

27. 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.

28. Furthermore, cl.600.411 requires that where the applicant is in Australia at the time of application, he must be in Australia at the time of grant. Departmental movement records indicate that he has departed Australia, thus cl60.411 is not met.

    DECISION

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

    Jane Marquard
    Member